Gularte v. Pradia (In re Estate of Stoker)

• Decision Date: 18 May 2011
• Docket Number: No. B220317.,B220317.
• Citation: 2011 Daily Journal D.A.R. 3370,11 Cal. Daily Op. Serv. 2873,122 Cal.Rptr.3d 529,193 Cal.App.4th 236
• Parties: ESTATE OF Steven Wayne STOKER, Deceased. Destiny Gularte et al., Petitioners and Appellants, v. Danine Pradia et al., Objectors and Respondents.
• Court: California Court of Appeals Court of Appeals

193 Cal.App.4th 236

122 Cal.Rptr.3d 529

11 Cal. Daily Op. Serv. 2873

2011 Daily Journal D.A.R. 3370

ESTATE OF Steven Wayne STOKER, Deceased.Destiny Gularte et al., Petitioners and Appellants,

v.Danine Pradia et al., Objectors and Respondents.

No. B220317.

Court of Appeal, Second District, Division 6, California.

March 3, 2011.

As Modified on Denial of Rehearing April 4, 2011.

Review Denied May 18, 2011.

Law Office of Eric A. Woosley, Eric A. Woosley, Santa Barbara, Jordan T. Porter for Petitioners and Appellants.

Tardiff Law Offices, Neil S. Tardiff, San Luis Obispo; Law Offices of Dennis J. Balsamo, Dennis J. Balsamo for Objectors and Respondents.

GILBERT, P.J.

At one time the Probate Code appeared to refute the dictum, “ Nothing endures but change.” Not anymore.

A purported will is not executed in compliance with Probate Code requirements because it lacks witnesses' signatures. We conclude the will is valid because the trial court found by clear and convincing evidence that testator who signed it intended it to be his will. (Prob.Code, § 6110, subd. (c) (2).) ¹

Destiny Gularte, Donald Karotick and Robert Rodriguez (appellants) appeal a judgment that denied a petition to probate a 1997 will and a trust of Steven Wayne Stoker (decedent), and granted the petition of Danine Pradia and Darrin Stoker (respondents) to probate decedent's 2005 will. We conclude, among other things, that: 1) challenges to the validity of decedent's 1997 trust were not barred by the 120–day limitations period in section 16061.8, 2) the trial court did not err by ruling that the 2005 will was valid, and 3) substantial evidence supports the judgment and the findings that decedent had revoked the 1997 will and trust. We affirm.

FACTS

On May 22, 1997, decedent executed a will and nominated Gularte to be the executor of his estate. In Article Two of the will, he listed Karotick and Gularte as the beneficiaries of gifts of personal property. In Article Three, he stated, “I give the residue of my estate to the trustee of the 1997 Steven Wayne Stoker Revocable Trust, created under the declaration of trust executed on the same date as, but immediately before, the execution of this will....” Gularte was listed as the successor trustee of that trust. Decedent died on February 27, 2008.

On March 17, 2008, Gularte filed a petition to probate the will and requested that she be appointed the executor.

On March 18, Gularte served a notice to decedent's children (respondents) that pursuant to sections 16061.7 and 16061.8, they had 120 days to bring an action to contest the trust.

On March 25, Pradia filed an objection to Gularte's petition to probate the 1997 will and claimed that her father had executed a more recent will. She objected to Gularte being appointed executor. She said, “Gularte is the former girlfriend of my father. My father and [Gularte's] relationship ended in an angry moment in 2001, about 7 years ago. My father told me in November 2007 that he was afraid of [Gularte] and thought she was coming into his home and taking things.”

On April 28, respondents filed a petition to probate a handwritten will signed by their father on August 28, 2005. The will provides, “To Whom It May Concern: [¶] I, Steve Stoker revoke my 1997 trust as of August 28, 2005. Destiny Gularte and Judy Stoker to get nothing. Everything is to go to my kids Darin [ sic ] and Danene [ sic ] Stoker. Darin [ sic ] and Danene [ sic ] are to have power of attorney over everything I own.” The will contained no witnesses' signatures.

At trial, Anne Marie Meier testified that she was a very close friend of decedent. One night in 2005, decedent was discussing “estate planning,” and he asked Meier to “get a piece of paper and a pen.” He then dictated the terms of the 2005 will. Meier wrote that document in her handwriting “word for word” from decedent's dictation. She handed it to him, “he looked at it and he signed it.” Decedent told Meier that this was his last will and testament. Moreover, in front of the witnesses, he urinated on the original copy of the 1997 will and then burned it.

Homer Johns, a friend of decedent's, testified that he saw decedent sign the 2005 will.

The trial court found that respondents “established that the 2005 document was created at Decedent Stoker's direction and that he signed it,” and that there was clear and convincing evidence that the 2005 will “evinces Decedent Stoker's intent.” The court ruled that “[s]ince the 2005 will has been accepted for probate by this Court, the 1997 will has been revoked by operation of law.”

DISCUSSION

The 120–Day Time Limit

Appellants contend that the trial court erred by not ruling that any challenge to the validity of the 1997 trust was barred by the 120–day statute of limitations in section 16061.8. We disagree.

Section 16061.8 provides, in relevant part, “No person upon whom the notification by the trustee is served pursuant to this chapter ... may bring an action to contest the trust more than 120 days from the date the notification by the trustee is served upon him or her....” (Italics added.)

Appellants note that Gularte, the successor trustee of the trust, served a notice to respondents on March 18, 2008, warning them that “you may not bring an action to contest the trust more than 120 days from the date of this notification....” They claim respondents did not file such an action within 120 days from that notice and they consequently waived the right to contest the trust.

But respondents filed a petition to probate the 2005 will. In determining whether that constitutes an action to contest the trust within the purview of section 16061.8, we look to the substance of that petition and its “practical effect.” We are not bound by its label. ( Silberman v. Swoap (1975) 50 Cal.App.3d 568, 571, 123 Cal.Rptr. 456;Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908, 274 Cal.Rptr. 186.)

Respondents suggest that they were not required to file a separate proceeding entitled action to contest the trust, because they achieved the same result by filing their petition to probate the 2005 will on April 28, 2008. We agree. That petition necessarily involved the issue of the validity of the 1997 trust, because in the 2005 will, decedent said he was revoking that trust. The 2005 will and the 1997 trust are inconsistent. Therefore, the trial court would have to consider the validity of decedent's revocation of the trust. The petition to probate the 2005 will is, “in practical effect,” an action challenging the validity of the trust. ( Silberman v. Swoap, supra, 50 Cal.App.3d at p. 571, 123 Cal.Rptr. 456.) Respondents' petition was timely filed within the 120–day period. Filing a second petition labeled as an action to contest the trust would amount to unnecessary duplication.

Respondents also claim that the 120–day time limit for filing an action in 2008 to contest the trust is irrelevant here. The trust provided that decedent could revoke the trust “at any time during his lifetime.” Decedent revoked it through his actions which included executing his 2005 will. The successor trustee is authorized to serve the 120–day notice when the revocable trust becomes irrevocable because of “the death of one or more of the settlors of the trust....” (§ 16061.7, subd. (a)(1).) But the trust never became irrevocable because it was revoked before decedent's death. Gularte, as a successor trustee, had no authority to act under a revoked trust, and a court could not enforce it because that would contravene decedent's intent in his 2005 will. ( Gardenhire v. Superior Court (2005) 127 Cal.App.4th 882, 891, 26 Cal.Rptr.3d 143.) There is no error.

The Validity of the 2005 Will

Appellants claim that the will does not meet the requirements for a “[f]ormal [w]itnessed [w]ill,” and therefore the trial court erred by admitting it to probate. A will must be signed by the testator and at least two witnesses. (§ 6110, subds. (b)(1) & (c)(1).) Here the 2005 will is signed by decedent, but it contains no witnesses' signatures. Two witnesses, however, saw decedent sign it, and they testified in court to verify that this will was genuine.

Respondents note that the Probate Code contains a provision that allows wills that are defective in form to be admitted to probate if they are consistent with the testator's intent. Section 6110, subdivision (c)(2) provides, “If a will was not executed in compliance with paragraph (1), the will shall be treated as if it was executed in compliance with that paragraph if the proponent of the will establishes by clear and convincing evidence that, at the time the testator signed the will, the testator intended the will to constitute the testator's will.” Here the trial court found that the 2005 document constituted decedent's last will.

Appellants argue that the Legislature never intended this provision to apply to cases involving handwritten documents. We disagree. “ ‘ “It is a prime rule of construction that the legislative intent underlying a statute ... must be ascertained from its language; if the language is clear, there can be no room for interpretation, and effect must be given to its plain meaning.” ’ ” ( O'Brien v. Dudenhoeffer (1993) 16 Cal.App.4th 327, 332, 19 Cal.Rptr.2d 826.) Where the statute is inclusive, containing no limiting or qualifying language to exclude persons from its scope, the words the legislators used should control.

Here the statutory language is clear and broad, and there is no language to support the limitation appellants propose. This statute applies to wills that are “in writing” and signed by the testator. (§ 6110, subd. (a); id., subd. (b)(1).) The 2005 document is a written will signed by decedent. The statute contains no language to indicate that the wills covered by this section are limited to typewritten wills. Consequently, handwritten non-holographic wills are not excluded from the scope of this statute.

Moreover, statutes “should be given a construction consistent with...