Estate of Sarabia

• Decision Date: 21 June 1990
• Citation: 270 Cal.Rptr. 560,221 Cal.App.3d 599
• Court: California Court of Appeals Court of Appeals
• Parties: ESTATE OF Guillermo SARABIA, Deceased. Frederick WINSTON, Contestant and Appellant, v. Leonard C. GIBBS, Claimant and Respondent. A045376.

Page 560

270 Cal.Rptr. 560

221 Cal.App.3d 599

ESTATE OF Guillermo SARABIA, Deceased.

Frederick WINSTON, Contestant and Appellant, v. Leonard C. GIBBS, Claimant and Respondent.

A045376.

Court of Appeal, First District, Division 4, California.

June 21, 1990.

Review Denied Sept. 13, 1990.

William E. Mussman, William E. Mussman, III, Carr & Mussman, San Francisco, for contestant and appellant.

George M. Carr, Yale H. Smulyan, Carr, Smulyan & Hartman, Law Corp., San Francisco, for claimant and respondent.

POCHE, Associate Justice.

The law of California allows a will to be refused admission to probate if it is the product of undue influence exercised by a beneficiary under the will. A person contesting a will on this ground is aided by a presumption of undue influence if the contestant produces evidence that the beneficiary (1) had a confidential relationship with the decedent (2) was active in procuring the will and (3) "unduly" profited from it. The issue presented on this appeal by a losing contestant is whether the probate court erred in not instructing the jury that the concept of undue profit has a purely quantitative definition. In light of its radical departure from existing precedent and practices governing will contests, we reject this contention and affirm.

BACKGROUND

Decedent Guillermo Sarabia (aka William Winston) was a professional opera singer who spent almost all of his adult life living and working in Europe. Beginning in 1978 decedent lived first in Germany and then in The Netherlands with Leonard C. Gibbs, who acted as the paid manager/agent for most of decedent's financial affairs and took care of running their household. Decedent died of a heart attack in Amsterdam in September of 1985 leaving an estate estimated at approximately $500,000, almost all of which was his share of his recently deceased mother's estate. ¹ Gibbs was the sole beneficiary of a will allegedly executed by decedent in Amsterdam in June of 1984. Gibbs filed a petition asking that the will be admitted to probate and that he be authorized to administer the estate.

The decedent's closest living relative was his brother Frederick Winston (aka Frederick Sarabia). ² He filed a contest of the will on the ground that it was the product of Before the jury commenced its deliberations, the probate court instructed it with BAJI No. 12.17 as follows: "If you find that a confidential relationship existed between the decedent and Leonard Gibbs, that Leonard Gibbs was active in obtaining the will and unduly profited from it, you will find that the will was obtained by the undue influence of Leonard Gibbs unless he establishes by a preponderance of the evidence that the will was not the result of undue influence." The jury thereafter sent a note to the court requesting that it "Please elaborate on the word 'unduly' as best you can." Over Winston's objection, the court instructed the jury that "generally it is something that's unwarranted, excessive, inappropriate, unjustifiable or improper."

                Gibbs undue undue influence over decedent. 3  Upon request of both parties a jury was empaneled 4 and heard testimony for six days
                

Nineteen minutes later the jury returned its special verdict with interrogatories. The jury unanimously found that although Gibbs "was in a confidential relationship with decedent," and "was active in procuring the will," he was not "unduly benefited [sic ] under the will." Winston filed a timely notice of appeal from the ensuing judgment. ⁵

REVIEW

As a general proposition, California law allows a testator to dispose of property as he or she sees fit without regard to whether the dispositions specified are appropriate or fair. (See Estate of Fritschi (1963) 60 Cal.2d 367, 373, 33 Cal.Rptr. 264, 384 P.2d 656; Kelly v. McCarthy (1936) 6 Cal.2d 347, 352, 57 P.2d 118; Jacobs v. Gerecht (1970) 6 Cal.App.3d 808, 811, 86 Cal.Rptr. 217; see also BAJI No. 12.02.) Testamentary competence is presumed. (See Estate of Fritschi, supra, 60 Cal.2d at p. 372, 33 Cal.Rptr. 264, 384 P.2d 656; Estate of Goetz (1967) 253 Cal.App.2d 107, 112-113, 61 Cal.Rptr. 181.)

This presumption can be overcome if it is shown that the testator was affected by undue influence, a concept with a very definite meaning. "Illustrative expressions of the courts demonstrate the stringency with which they protect the testamentary disposition against the attack of undue influence. Thus such influence must 'destroy the testator's free agency and substitute for his own another person's will.' [Citation.] 'Evidence must be produced that pressure was brought to bear directly upon the testamentary act.... [The influence] must amount to coercion destroying free agency on the part of the testator.' [Citations.] '[T]he circumstances must be inconsistent with voluntary action on the part of the testator' [citation]; and '[the] mere opportunity to influence the mind of the testator, even coupled with an interest or a motive to do so, is not sufficient.' " (Estate of Fritschi, supra, 60 Cal.2d 367 at pp. 373-374, 33 Cal.Rptr. 264, 384 P.2d 656 [original emphasis].) Undue influence, then, is the legal condemnation of a situation in which extraordinary and abnormal pressure subverts independent free will and diverts it from its natural course in accordance with the dictates of another person. (See Estate of Baker (1982) 131 Cal.App.3d 471, 480, 486, 182 Cal.Rptr. 550; Estate of Truckenmiller (1979) 97 Cal.App.3d 326, 334, 158 Cal.Rptr 699; Estate of Franco (1975) 50 Cal.App.3d 374, 382, 123 Cal.Rptr. 458.) It is akin to fraud. (See Estate of Garibaldi (1961) 57 Cal.2d 108, 114, 17 Cal.Rptr. 623, 367 P.2d 39.)

The presumption in favor of a will may be neutralized by a presumption that undue influence was brought to bear on the testator. The presumption of undue influence arises only if all of the following elements are shown: (1) the existence of a confidential relationship between the testator and the person alleged to have exerted undue influence; (2) active participation by such person in the actual preparation or execution of the will, such conduct not being of a merely incidental nature; and (3) undue profit accruing to that person by virtue of the will. If this presumption is activated, it shifts to the proponent of the will the burden of producing proof by a preponderance of evidence that the will was not procured by undue influence. It is for the trier of fact to determine whether the presumption will apply and whether the burden of rebutting it has been satisfied. (See e.g., Estate of Lingenfelter (1952) 38 Cal.2d 571, 585, 241 P.2d 990; Estate of Baker, supra, 131 Cal.App.3d 471 at pp. 480, 483, 182 Cal.Rptr. 550; Estate of Clegg (1978) 87 Cal.App.3d 594, 602, 151 Cal.Rptr. 158; Estate of Gelonese (1974) 36 Cal.App.3d 854, 861-863, 111 Cal.Rptr. 833; Estate of Evans (1969) 274 Cal.App.2d 203, 211-212, 79 Cal.Rptr. 1.)

The jury's verdict leaves no doubt that the first and second elements needed to activate the presumption of undue influence were established. With respect to the remaining factor of the beneficiary unduly profiting from the will, Winston challenges the probate court's supplementary instruction on the ground that it was couched in qualitative terms. As he sees it, "the word 'unduly' has only a quantitative meaning: it means nothing more than that the beneficiary takes substantially more under the will he procured than he would otherwise have taken.... [T]he evidence is uncontradicted that Gibbs was not related by blood to [decedent], that Gibbs would have taken nothing of [decedent's] by inheritance in the absence of the will in question, and that Gibbs takes everything of [decedent's] under that will. On this evidence, the court below was obligated to instruct the jury that Gibbs had 'unduly profited' by the will as that term was used" in BAJI No. 12.17 as a matter of law. (Original emphasis.)

There is some authority which lends a semblance of support to Winston's position. For example, in Estate of Lances (1932) 216 Cal. 397, 14 P.2d 768, the decedent's uncle contested a will whose proponent and sole beneficiary was an attorney who prepared the will. Our Supreme Court noted that the attorney was confronted by "an uncontradicted showing that he unduly profited by the terms of the will. He was to receive the whole of the estate ... to the prejudice of the heirs of the decedent." (Id. at p. 403, 14 P.2d 768.) These comments served as the basis for several subsequent decisions in which it was declared that "[t]he question as to whether the proponent unduly profited by the will is solved by the terms of the will itself." (Estate of Bucher (1941) 48 Cal.App.2d 465, 473, 120 P.2d 44; accord Estate of Baker, supra, 131 Cal.App.3d 471 at pp. 480-481, 182 Cal.Rptr. 550; see Estate of Trefren (1948) 86 Cal.App.2d 139, 149, 194 P.2d 574 ["If there had been no will respondent would have received all of [the decedent's] property and appellant none."].)

A proper appreciation of the peculiar contexts in which these remarks were made, however, largely vitiates the support Winston sees them as providing. In Lances the probate court had in effect directed the jury to return a verdict in favor of the will's proponent. The Supreme Court reversed this decision, concluding that the evidence produced required "that the issue of undue influence was one for the determination of the jury." (Estate of Lances, supra, 216 Cal. 397 at pp. 404-405, 14 P.2d 768.) In Bucher the jury returned a verdict finding that undue influence had been exerted, but the probate court granted the proponent's motion for judgment notwithstanding the verdict. The contestant appealed. Upon concluding that "the evidence was sufficiently substantial to have permitted the jury to find that there was undue influence practiced upon the decedent," the Court of Appeal reversed with the direction that the probate court "enter judgment upon the verdict as rendered." (Estate of Bucher, supr...