In re Conservatorship of McDowell

• Decision Date: 07 December 2004
• Docket Number: No. H026400.,H026400.
• Citation: 23 Cal.Rptr.3d 10,125 Cal.App.4th 659
• Court: California Court of Appeals Court of Appeals
• Parties: CONSERVATORSHIP OF the Person and the Estate of Kathryn McDOWELL. Robert Cecil, Acting Public Guardian, as Conservator, etc., Petitioner and Respondent, v. Ann Netcharu, Objector and Appellant.

23 Cal.Rptr.3d 10

125 Cal.App.4th 659

CONSERVATORSHIP OF the Person and the Estate of Kathryn McDOWELL Robert Cecil, Acting Public Guardian, as Conservator, etc., Petitioner and Respondent, v. Ann Netcharu, Objector and Appellant.

No. H026400.

Court of Appeal, Sixth District.

December 7, 2004.

Ann Miller Ravel, County Counsel, Kathryn J. Zoglin, Deputy County Counsel, San Jose, CA, for Petitioner and Respondent.

Kai Henrich Wessels, San Jose, CA, for Objector and Appellant.

RUSHING, P.J.

STATEMENT OF THE CASE

Petitioner and respondent Santa Clara County Public Guardian Robert Cecil, conservator for Kathryn McDowell, filed a petition for substituted-judgment (Prob. Code, 2580 et seq.),¹ requesting authority to revoke Ms. McDowell's existing will and execute a trust and a new will with a different beneficiary. The court granted the petition. Objector and appellant Poonsri Ann Netcharu, who was a beneficiary under the existing will, appeals from the order.

We reverse the order and remand for reconsideration.

BACKGROUND

Petitioner was appointed temporary conservator for Ms. McDowell on August 31, 2000, and permanent conservator on January 25, 2001. He filed the petition on March 11, 2002. In seeking permission to execute a new will and trust, petitioner alleged that Ms. McDowell's existing will, executed on September 13, 2000, was invalid because Ms. McDowell lacked testamentary capacity at the time and because the will was the product of undue influence that the two named beneficiaries exerted over Ms. McDowell. He sought to name Guide Dogs for the Blind as the sole beneficiary under the new documents.

In support of the petition, petitioner alleged that in 1998, Ms. McDowell, an elderly retired woman, allowed Reza Fatipoor² and Parvis Talsocaiman to live with her in her house, and in exchange, they agreed to take care of her. In June 2000, Ms. McDowell was hospitalized for a hip fracture, and upon her release, hospital staff notified Adult Protective Services (APS) due to concerns about her care. Thereafter, Ms. McDowell's mental faculties started to decline. APS also became concerned about her care and suspected financial abuse by Fatipoor and Talsocaiman. As a result, it requested that the public guardian establish a conservatorship. In August 2000, the public guardian was appointed temporary conservator.

The petition further alleged that in September 2000, Fatipoor and his friend objector took Ms. McDowell to three different attorneys—Tom Bouman, James Arnold, and Meyer Sher—for the purpose of drafting various legal documents. Bouman declined to prepare a power of attorney due to concerns about Ms. McDowell's mental capacity. Attorney Arnold, who had done legal work for Ms. McDowell in the past, declined to prepare estate planning documents. However, Attorney Sher prepared the September 2000 will, which named Fatipoor and objector as executors and sole beneficiaries.

Last, the petition alleged that in October 2000, Ms. McDowell went to the emergency room because of pain. On November 16, 2000, Paul Heidenrich from the public guardian's office visited Ms. McDowell's home and found her semi-conscious. She was admitted to the hospital in an unresponsive physical state and the next day transferred to a skilled nursing facility. In January 2001, Doctor Gary Steinke, M.D., submitted a report, in which he opined that Ms. McDowell was suffering from "advanced dementia."

Objector objected to the petition. She denied that Ms. McDowell lacked testamentary capacity and also denied that she induced Ms. McDowell to name her a beneficiary by means of fraud, duress, menace, or undue influence. She asserted that they were friends, and she cared for and assisted Ms. McDowell.³

At a bench trial, petitioner presented evidence to show that Ms. McDowell was incompetent to make a will in September 2000. Petitioner also presented evidence to show that Fatipoor and objector harbored an evil intent and conspired to take advantage of Ms. McDowell, obtain control of her assets, and induce her to name them as beneficiaries. Then, after Ms. McDowell executed the will, Fatipoor and objector mistreated and neglected Ms. McDowell, whose condition deteriorated significantly. Prior to and at trial, petitioner further argued that under section 21350, Fatipoor and objector were statutorily disqualified from receiving under the September 2000 will because they were Ms. McDowell's "care custodian[s]" and are presumed to have exerted undue influence.⁴

After trial, the court overruled objector's objection and entered an order granting the petition. The court rejected petitioner's claim that Ms. McDowell lacked the testamentary capacity in September 2000. The court found no evidence that objector was evil or that she used duress, menace, or fraud to induce Ms. McDowell to execute the will. However, the court found that objector was a "care custodian" and had failed to rebut the presumption of undue influence. Accordingly, the court found that Ms. McDowell's will was ineffective as to objector. The court then turned to the question of who should be the beneficiaries under a new will and trust. The court was not convinced that Ms. McDowell would want to leave her entire estate to Guide Dogs for the Blind. Based on her expressions of interest in that organization and her acts of generosity toward the homeless throughout her life, the court authorized petitioner to distribute Ms. McDowell's estate in equal shares to Guide Dogs for the Blind, Inn Vision, and the Emergency Housing Consortium. The court considered but declined to reinclude objector as a beneficiary. Although the court accepted evidence and a stipulation that as of January 2001, Ms. McDowell lacked capacity to make a will, it accepted the testimony of Ms. McDowell's former attorney, Peter Stern, who related conversations he had had with Ms. McDowell in spring 2001, in which she indicated that she did not want to leave her estate to the people named in her will.

OBJECTOR'S CONTENTIONS ON APPEAL

Objector claims that the order granting the petition must be reversed because the petition failed to allege that she was a "care custodian" and as such a disqualified beneficiary. On the merits, objector claims the court erred in finding that she was a "care custodian" and that she failed to rebut the presumption of undue influence. She claims the record establishes a lack of undue influence as a matte of law. Last, objector claims the court erred in excluding her as a beneficiary under the new will and trust.⁵

THE DEFECTIVE PETITION

Objector contends that because the petition failed to allege that she was disqualified as a "care custodian" under section 21350 or even mention the applicable statutes, the petition failed to provide adequate notice that disqualification was an issue and failed to properly place that issue before the court. Thus, she claims the court could not properly rely on that theory, and its order must be reversed.

The petition is silent concerning the disqualification theory under section 21350. However, we note that petitioner raised and devoted most of his trial brief to the issue. There, petitioner reiterated his accusation that Fatipoor and objector had mistreated and taken advantage of Ms. McDowell. He further noted that in ruling on the petition, the court must consider all relevant circumstances, and a beneficiary's disqualification as a "care custodian" is a relevant consideration. In particular, petitioner asserted generally that "[r]evocation of the [previous] will is in the conservatee's best interest, given her lack of legal capacity at the time that [the] Will was executed and the likelihood that the Will was procured by undue influence and as a result of elder financial abuse." Petitioner more specifically argued that a new estate plan was appropriate because Fatipoor and objector were disqualified under section 21350 and could not rebut the presumption of undue influence. In other words, a new will was necessary because the existing will would fail for lack of qualified beneficiaries.

Before trial, objector moved to exclude evidence on the "care custodian" disqualification issue. In opposition, petitioner reiterated that under the substituted-judgment statute, the court should consider all relevant circumstances, including whether the beneficiaries under the existing will are disqualified. In denying objector's motion, the court stated, "I'm looking at the original petition, and although it's not crystal clear exactly what theories the petitioner is going to proceed on, I think it's broad enough to cover this area because they are asking for revocation of the prior will based on particular code sections on the grounds of abuse and undue influence. I think that would cover it."

Notwithstanding the failure to allege disqualification in the petition, we find that objector had sufficient notice that petitioner intended to rely on that theory. We observe that after objector's motion was denied, she did not request that the petition be amended or seek a continuance to prepare evidence and a defense against the disqualification claim. Rather, she filed a supplemental trial brief, disputing the claim and offering evidence and argument to show that she was not a care custodian. Under the circumstances, we decline to reverse the order based solely on the allegedly defective petition. Simply put, we do not find that petitioner's failure to include allegations in the petition was prejudicial. This is especially so because, as we discuss below, the care custodian issue involves application of the law to essentially undisputed facts.

We now turn to objector's main substantive challenge to the court's order.

APPLICABLE PRINCIPLES AND STANDARD OF REVIEW

Under sections 2580 through 2586, a superior court may, upon the petition of any interested person and after consideration of all relevant circumstances, exercise its discretion to authorize or require a...