Estate of Berger

Filed 5/25/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
Estate of MELANIE P. B321347
BERGER, Deceased.
(Los Angeles County
Super. Ct. No.
20STPB10201)
MARIA L. CORONADO,
Petitioner and
Appellant,
v.
GLEE BERGER,
Objector and
Respondent.
APPEAL from an order of the Superior Court of Los
Angeles County, Jonathan L. Rosenbloom, Judge. Reversed.
McBride Law Group and Julia C. McBride for Petitioner
and Appellant.
Law Office of Rodney Gould, Rodney Gould and Armine
Singh for Objector and Respondent.
* * *
The Probate Code mandates that a document will be
considered a “will” capable of being probated in court only if the
document is in writing, signed (or authorized) by the testator,
and signed by two people who witnessed the testator sign or
acknowledge her signature. (Prob. Code, § 6110, subds. (a), (b),
(c)(1).) 1 However, the code will overlook a failure to comply with
the two-witness requirement if the party seeking to probate the
document as a will “establishes by clear and convincing evidence
that, at the time the testator signed the [document], the testator
intended the [document] to constitute the testator’s will.” (§
6110, subd. (c)(2).) This appeal presents two questions: (1) In
evaluating the testator’s intent, may a probate court consider
extrinsic evidence of the circumstances surrounding the
document’s execution if the intent expressed by the document’s
terms is unambiguous, and (2) Do the facts of this case compel, as
a matter of law, a finding by clear and convincing evidence that
the drafter of the document at issue here intended the document
1 All further statutory references are to the Probate Code
unless otherwise indicated.
2
at issue to make a revocable disposition of property that takes
effect upon her death? We conclude that the answer to both
questions is “yes.” We accordingly reverse the probate court’s
order declining to probate the document as a will.
FACTS AND PROCEDUAL BACKGROUND
I. Facts 2
A. Melanie Berger’s relationships
Melanie Berger (Melanie) started dating Maria Coronado
(Maria) in the spring of 2002. 3 At that time, Maria was in the
midst of a divorce and had three daughters who were then 15, 11,
and 10 years old. Melanie had met the daughters a few times
prior to August 2002. In early August 2002, Maria proposed
marriage to Melanie with a diamond solitaire ring and the two
became engaged.
Melanie had a sister, Glee (sister). Melanie and her sister
had an “off and on” relationship. They would talk on the phone
each month, but Melanie never mentioned Maria to her sister.
B. Melanie schedules gender reassignment surgery
Melanie was assigned male at birth.
2 These facts are drawn from the facts the parties stipulated
are undisputed, from the exhibits admitted at the evidentiary
hearing, and from the testimony at that hearing—all construed
in the light most favorable to the probate court’s ruling and while
discounting any uncorroborated portions of the testimony of the
sole witness the court found not to be credible.
3 We are using first names for Melanie and Maria to avoid
confusion that might arise because Melanie shares a last name
with her sister and Maria’s last name has changed over time. We
mean no disrespect.
3
After living as a woman and wearing female clothing for a
year as her doctor ordered, Melanie arranged to have gender
reassignment surgery in late August 2002. That surgery entailed
the surgical alteration of her sex organs.
After proposing to Melanie but before Melanie had her
surgery, Maria traveled to Spain with her daughters to visit
family. While Maria was in Spain, Melanie and Maria
corresponded through email using a variety of different email
accounts. Specifically, Maria sent Melanie an email on August
13, 2002, which was the day she arrived in Spain; she sent
another email to Melanie on August 14, 2002.
C. Melanie writes a letter purporting to be a will
On August 16, 2002, while Maria was still in Spain,
Melanie printed out a letter on stationery from her then-
employer, the Social Security Administration (the letter). The
letter starts with the date “8-16-02”; lists Melanie’s full name,
address, and social security number; and begins with the
salutation “To whom it may concern.” The letter then reads as
follows:
“I, Melanie Perry Berger, with sound mind and
excellent health, name Maria L. [Coronado], [lists
Maria’s then-current address], as my sole beneficiary
in the event of my death. She will take ownership of
all my personal possessions and property located at
[address of Melanie’s house in Pasadena]. She will
make the sole determinations as to what she will
keep, and what personal belongings that may, or may
not, be distributed to any inquiring family members.
She will also receive, and have full discretion of:
1. My [Pasadena] home located at [listing
address].
4
2. My retirement Thrift Savings.
3. My 1984 Mercedes Benz 300 CD, license
[listing number].
4. My Washington Mutual checking account
[listing number].
5. Any and all wages paid to my account,
post mortem.
It should be noted that I would prefer to have
some of the above Thrift assets set aside for the
education of [Maria’s] three daughters, [naming
each]. This is, however, only a suggestion, and Maria
. . . shall have the final decision on these matters.”
The letter closes with “Sign[ed] and dated 8-16-02 in Pasadena,
California,” and beneath it, Melanie’s signature. (A scanned copy
of the letter, with private information redacted, is attached as
appendix A, post, page 24.)
No one witnessed Melanie sign the letter.
On the very same day as the letter is dated, Melanie sent
Maria an email informing her that Melanie “decided” to “leave
the house, all the belongings, [her] record collection and [her] car”
to Maria and also would “leave [her] retirement savings in
[Maria’s] name to be used for the three girls[’] college education
in the event of [her] death.” Melanie explained that she would
“leave these documents on [Maria’s] desk” “chair” “before
[Melanie] leaves” for her gender reassignment surgery.
Over the next several days, Melanie sent several more
emails to Maria. On August 18, 2002, she sent an email referring
to Maria as her “dearest,” “sweetest” “love.” On August 19, 2002,
Melanie sent a few emails to Maria expressing frustration that
Maria had not responded to the “number of emails” that Melanie
had sent in the last few days. She also reiterated that “the
5
documents regarding [her] will to [Maria] will be on [Maria’s]
desk chair at [Maria’s] apartment, and the originals will be in
[Melanie’s] in[-]box on [her] desk at home.” Maria admitted that
she had difficulty responding quickly to Melanie’s emails.
When Maria returned home from Spain, she found a copy of
the letter on her desk chair.
Although Melanie and Maria continued dating for another
six months after Melanie’s surgery and Maria’s return from
Spain, the two did not discuss the letter at any point thereafter.
Neither Melanie nor Maria mentioned the letter to Maria’s
daughters.
Melanie did not file the paperwork to designate Maria as
the beneficiary on her retirement account.
D. Melanie and Maria break up
Melanie and Maria ended their romantic relationship in
the spring of 2003, and ceased all contact with one another.
Melanie became somewhat of a recluse and “hardly ever
left the house.”
In 2020, Melanie became increasingly religious and told
neighbors that she wanted to leave her assets “to the church.”
There is no evidence Melanie ever memorialized her new
intention.
E. Melanie dies
Melanie passed away on November 30, 2020.
As the pastor of Melanie’s church was going through
Melanie’s personal effects in her home, he found the letter at the
bottom of one of the drawers of Melanie’s desk. The pastor gave a
copy to Melanie’s sister and called Maria to inform her of
Melanie’s death.
6
By this point in time, Maria had lost the copy of the letter
Melanie had left on her desk chair 18 years earlier.
II. Procedural Background
A. Maria petitions to probate the letter
On February 4, 2021, Maria filed a petition seeking to have
the letter probated as Melanie’s will. Melanie’s sister, who was
otherwise Melanie’s sole heir at law, opposed the petition.
B. The probate court denies the petition after a
two-day evidentiary hearing
The probate court held a two-day evidentiary hearing in
September 2021. Maria, Melanie’s sister and a handwriting
expert testified. The court admitted the letter as well as several
of the August 2002 emails between Melanie and Maria.
At the conclusion of the second day, the probate court
denied Maria’s petition. Because the letter did not comply with
the general requirements for a will under the Probate Code, the
court viewed its “threshold” task—before reaching any questions
of fraud or undue influence—as “ascertain[ing]” “whether” Maria
had proven, by clear and convincing evidence, that Melanie
intended the letter to be her will. The court expressed that it
“ha[d] doubts about the letter and its context,” explaining that
“perhaps” Melanie meant to benefit Maria or “perhaps, she had
forgotten” about the letter in the intervening years. The court
noted that Melanie had closed her retirement account in 2012,
ten years after signing the letter. The court also had “questions
about [Maria’s] credibility,” insofar as she was “not an accurate
reporter of the facts.” Specifically, the court found it hard to
believe that Maria and Melanie did not discuss the letter, that
they did not discuss Melanie’s finances, that Maria did not tell
her daughters about the letter, and that Maria did not go through
7
Melanie’s house “look[ing] for the [original of the] will”; in the
court’s view, this was all “strange” and “somewhat inconsistent
with what engaged people do.” The court also pointed to Maria’s
inability to remember by name one of Melanie’s neighbors whom
Melanie mentioned in one of the 2002 emails.
C. At Maria’s request, the court reopens the
hearing but still denies the petition
In October 2021, Maria filed a motion to reopen the
evidentiary hearing to introduce more email correspondence
between Melanie and Maria from August 2002. The trial court
granted the motion and, in March 2022, held a further hearing
where it permitted Maria to offer additional testimony and
thereafter admitted some—but not all—of a bevy of additional
emails. The court ultimately re-adopted its earlier ruling, but
somewhat cryptically added that the “relationship” between
Melanie and Maria was “not entirely without questions.”
D. Appeal
Maria filed this timely appeal.
DISCUSSION
I. Pertinent Law Regarding Validity of Unwitnessed
Wills
In California, “[t]he right to dispose of property by will is
entirely statutory.” (Estate of Saueressig (2006) 38 Cal.4th 1045,
1048; Estate of Manchester (1917) 174 Cal. 417, 419-420 [“[t]he
power to dispose of one’s property by will and the mode by which
it may be exercised are matters under legislative control”].)
The Probate Code prescribes that a document is effective as
a will only if it is (1) “in writing”; (2) “signed” (a) “[b]y the
testator,” (b) by someone else, but “[i]n the testator’s name,” “in
the testator’s presence,” and “by the testator’s direction,” or (c) by
8
a conservator acting pursuant to a court order under section
2580; and (3) witnessed “by at least two persons” who (a) at the
same time “witness[]” the testator sign the document or
acknowledge her signature or the document, and (b) sign the
document “during the testator’s lifetime” while “understand[ing]
that the instrument they sign is the testator’s will.” (§ 6110,
subds. (a), (b)(1), (b)(2), (b)(3), (c)(1).) Requiring a testator to
adhere to such formalities “serve[s] three . . . functions”—namely,
(1) “an evidentiary function by furnishing reliable evidence about
the testator’s intent” that “prevent[s] fraudulent dispositions of
[the] testator[’s] properties”; (2) “a protective function by reducing
the possibility of interference with the process of execution”; and
(3) “a cautionary or ritual function to help ensure that the will
reflects a considered decision.” (Estate of Eugene (2002) 104
Cal.App.4th 907, 910; Estate of Brenner (1999) 76 Cal.App.4th
1298, 1301-1302 (Brenner).)
But these prescribed procedures are not without exception.
Specifically, the code will overlook a testator’s noncompliance
with the two-witness requirement (1) if the “material provisions”
of the document are “in the handwriting of the testator” (in which
case it is called a “holographic will”) (§ 6111; Brenner, supra, 76
Cal.App.4th at p. 1301), or (2) if the party seeking to have the
probate court recognize the document as a will “establishes by
clear and convincing evidence that, at the time the testator
signed the [document], the testator intended the [document] to
constitute the testator’s will” (§ 6110, subd. (c)(2)). 4 These
4 Although this second exception did not become effective
until January 1, 2009, and the letter at issue in this case was
signed in August 2002, this exception applies here because the
validity of that letter as a will is being litigated now—that is,
9
relaxed procedures are designed to give effect to a drafter’s clear
intent to dispose of property through a proffered document, even
when that document has “procedural deficiencies or mistakes”
that cause it to fall short of fully complying with the Probate
Code’s procedures. (Stoker, supra, 193 Cal.App.4th at p. 242;
Brenner, at p. 1301; see generally Estate of Williams (2007) 155
Cal.App.4th 197, 206 (Williams) [noting “‘the policy of the law . . .
toward “a construction favoring validity” . . .’”]; § 21120
[“[p]reference is to be given to an interpretation of an instrument
that will prevent intestacy . . . rather than one that will result in
an intestacy”].) Indeed, our Legislature specifically enacted the
exception that authorizes a probate court to give effect to a
defectively drafted will when the drafter’s intent to do so is
particularly compelling as a means of deeming “harmless” “the
commission of drafting errors or improper interpretations of
instructions for form wills” in the hope that such a “harmless
error rule” would “reduce the number of wills thrown out of court,
increase the number that are actually probated, and reduce
potential litigation.” (Sen. Com. on Judiciary, Analysis of Assem.
Bill No. 2248 (2007-2008 Reg. Sess.) as amended Mar. 24, 2008,
p. 4-5, archived at (as of May 19,
2023).)
In applying the exception set forth in section 6110,
subdivision (c)(2), that focuses on whether there is clear and
convincing evidence that the drafter “intended the [document] to
constitute the [drafter’s] will,” the probate court’s task is to
examine whether the drafter “must have intended, by the
particular instrument offered for probate, to make a revocable
after the effective date of the 2009 amendment. (Estate of Stoker
(2011) 193 Cal.App.4th 236, 244 (Stoker).)
10
disposition of h[er] property to take effect upon h[er] death.”
(Estate of Sargavak (1950) 35 Cal.2d 93, 95 (Sargavak); Estate of
Wunderle (1947) 30 Cal.2d 274, 280-281 (Wunderle); Estate of
Geffene (1969) 1 Cal.App.3d 506, 512 (Geffene); accord, Stoker,
supra, 193 Cal.App.4th at p. 244 [applying this standard to
section 6110, subdivision (c)(2)].) In assessing “whether [an]
instrument . . . was intended to be testamentary,” the probate
court is to look to (1) the words in the document itself, and (2) the
“circumstances” “surrounding” its creation and execution. (Estate
of Spitzer (1925) 196 Cal. 301, 307 (Spitzer); Williams, supra, 155
Cal.App.4th at p. 211; Geffene, supra, at p. 512.) When it comes
to the words used, “[n]o particular words are necessary to show a
testamentary intent” (Wunderle, supra, at p. 280; Stoker, at p.
244), but words referring to the drafter’s potential death tend to
indicate such an intent (Estate of Button (1930) 209 Cal. 325, 331-
332). When it comes to the surrounding circumstances, courts
may examine, among other things, (1) whether the document was
drafted at a time when death was near (or nearer than usual) or
whether other “extreme circumstances” exist, as persons drafting
documents at such times are more likely to be acting with
testamentary intent (Geffene, at p. 514 [testamentary intent more
likely when “decedent’s contemplation of death is reasonably
inferable”]; Estate of Kane (1965) 236 Cal.App.2d 51, 53 (Kane)
[same]; Estate of Spencer (1948) 87 Cal.App.2d 591, 595
[testamentary intent more likely when drafter “had reason to
believe she might not live through” an “operation”]; Estate of
Wolfe (1968) 260 Cal.App.2d 587, 595 [testamentary intent more
likely when drafter is anticipating death or in other “extreme
circumstances”]); and (2) whether the drafter has retained the
11
document, as persons are more likely to retain documents that
were meant to have lasting effect (Kane, supra, at p. 53).
II. Analysis
In challenging the probate court’s denial of her petition to
have Melanie’s August 2002 letter probated as her will, Maria
raises what boil down to two arguments. First, she argues that a
probate court’s analysis of whether a drafter acted with
testamentary intent is limited to the four corners of the document
proffered as a will if the language in that document
unambiguously evinces such an intent. Second, she argues that
the probate court’s finding that Melanie did not intend the letter
to constitute her will is unsupported by substantial evidence.
A. Limiting the probate court to the four corners of
the proffered document
Maria first asserts that the probate court erred in denying
her petition to declare Melanie’s letter to be a will because, in her
view, the four corners of that letter unambiguously establish
Melanie’s intent to dispose of her property upon her death, such
that the court was prohibited from looking to any evidence
extrinsic to that document. The premise of this assertion is the
proposition that a probate court is limited to the four corners of a
proffered document—and thus cannot consider any extrinsic
evidence—if the terms of the document unambiguously evince a
testamentary intent. Because this is a proposition of law, we
independently assess whether it is correct. (Kaanaana v. Barrett
Business Services, Inc. (2021) 11 Cal.5th 158, 165.)
It is incorrect.
Although courts as a general matter may not resort to
extrinsic evidence in interpreting the meaning of a document
(including a will) when the document’s terms are unambiguous
12
(e.g., Estate of Dodge (1971) 6 Cal.3d 311, 318; Estate of Dye
(2001) 92 Cal.App.4th 966, 976), this principle does not apply
here. That is because the probate court’s task here is not to
assess the meaning of the words in a document, but instead to
assess the meaning of the document itself—namely, was that
document intended to be a will? (Sargavak, supra, 35 Cal.2d at
p. 96 [“It bears emphasis that we are here concerned not with the
meaning of the instrument, but with the intention with which it
was executed”]; Halldin v. Usher (1958) 49 Cal.2d 749, 752
[same].) In this particular context, an unbroken line of precedent
squarely establishes that extrinsic evidence is always admissible
on the question of the drafter’s intent. (Estate of Torregano
(1960) 54 Cal.2d 234, 246 [“Extrinsic evidence is always
admissible for the purpose of proving the circumstances under
which a will was executed”]; Sargavak, at p. 96 [“an instrument
that clearly appears testamentary may nevertheless be shown by
extrinsic evidence to have been executed” for other,
nontestamentary purposes]; Estate of MacLeod (1988) 206
Cal.App.3d 1235, 1241 [“Regardless of the language of the
instrument, extrinsic evidence may be introduced to show it was
not intended by the testator to be effective as a will”].)
There are three reasons for this rule.
First, and most immediately, this is the rule our
Legislature has explicitly adopted. Section 6111.5 provides:
“Extrinsic evidence is admissible [(1)] to determine whether a
document constitutes a will pursuant to section 6110 or 6111, or
[(2)] to determine the meaning of a will or a portion of a will if the
meaning is unclear.” (§ 6111.5, italics added.) By its plain text,
this statute sets forth two rules regarding the admissibility of
extrinsic evidence—one applicable when the question is “whether
13
[the] document constitutes a will” and a second applicable when
the question is the “meaning of [the] will.” Through the italicized
language, the statute precludes the consideration of extrinsic
evidence unless the “meaning is unclear” only for the second rule.
Maria would have us import the same unclear-meaning
requirement to the first rule. This is not what the statute says,
and we are not at liberty to rewrite the statute. (Jarman v. HCR
ManorCare, Inc. (2020) 10 Cal.5th 375, 392 (Jarman) [noting that
“courts ‘may not rewrite a statute . . .’”].)
Second, the necessity of resorting to extrinsic evidence is
part and parcel of the inquiry into the drafter’s intent—which, as
noted above, looks not only to the words of the document itself,
but also to the “surrounding circumstances.” (Spitzer, supra, 196
Cal. at p. 307.) The surrounding circumstances are critical
because a document that contains testamentary language might
nevertheless not be intended to be a testamentary disposition if,
as our Supreme Court has noted, the drafter executed the
document “in jest”; if the drafter “misapprehend[ded]” the nature
of the document; or if the drafter executed the document with
some intent other than to dispose of their property upon death,
such as to threaten a third party or induce that third party to
take a certain action (or refrain from doing so). (Sargavak,
supra, 35 Cal.2d at p. 96.) Proof of these “surrounding
circumstances” necessarily lies outside the four corners of the
document and hence must necessarily come from extrinsic
evidence.
Third, Maria’s proffered rule precluding probate courts
from examining extrinsic evidence when determining whether a
document is a will would effectively write the statutory, two-
witness requirement out of the Probate Code because it would
14
deem a signed document to be a will as long as, on its face, the
document says it is a “will”—even if it is unwitnessed and even if
the surrounding circumstances show a lack of testamentary
intent (because those circumstances would, under Maria’s
proffered rule, be inadmissible in this situation). By making it
unnecessary to show either attestation by two witnesses or the
statutory substitute of proof of testamentary intent, Maria’s rule
would effectively eliminate the code’s two-witness requirement.
Again, we are not at liberty to rewrite statutes. (Jarman, supra,
10 Cal.5th at p. 392.)
Maria resists this conclusion by citing to language in
Stoker, supra, 193 Cal.App.4th 236, which concluded that
language in the proffered document showed an “evident”
“testamentary intent,” and went on to note that “even if the
document is ambiguous, the trial court properly admitted
extrinsic evidence.” (Id. at p. 244.) From this, Maria infers that
Stoker adopted a rule that extrinsic evidence is admissible only if
the document’s language is ambiguous. We reject this inference,
and instead read this verbiage in Stoker as taking a belt-and-
suspenders approach and ruling in the alternative, rather than
clandestinely rejecting an unbroken line of binding Supreme
Court precedent and a statutory mandate directly on point.
B. Substantial evidence to support the probate
court’s ruling
Maria next asserts that the probate court’s order denying
her petition is unsupported by the evidence. Because the order
rests on its consideration of extrinsic evidence, our review is for
substantial evidence. (Williams, supra, 155 Cal.App.4th at pp.
205-206, 211.) By definition, substantial evidence review is
deferential to the ruling below—and makes it difficult to show
15
reversible error—due to the prism through which it mandates we
review the evidence: We must resolve all conflicts in the evidence
in favor of the ruling below (Boling v. Public Employment
Relations Bd. (2018) 5 Cal.5th 898, 912-913), must draw all
reasonable inferences from that evidence in favor of the ruling
below (People v. Navarro (2021) 12 Cal.5th 285, 339), and may
not reweigh the evidence or any credibility findings (In re Caden
C. (2021) 11 Cal.5th 614, 640). Showing error under substantial
evidence review is particularly onerous where, as here, the ruling
on appeal was resolved against the party who bore the burden of
proof in the court below: In that instance, we may reverse only
if—using the prism described above—the evidence compels a
finding in that party’s favor as a matter of law. (Almanor
Lakeside Villas Owners Assn. v. Carson (2016) 246 Cal.App.4th
761, 769; In re Aurora P. (2015) 241 Cal.App.4th 1142, 1163.)
And the bar for obtaining reversal is even higher where, as here,
the party’s burden below required her to produce “clear and
convincing” proof—that is, proof that establishes the fact at issue
to a “high probability” or “so clear[ly] as to leave no substantial
doubt.” (Estate of Ben-Ali (2013) 216 Cal.App.4th 1026, 1037
(Ben-Ali); Conservatorship of O.B. (2020) 9 Cal.5th 989, 1006-
1007 (O.B.).) Applying these principles, we can reverse only if we
conclude that the evidence below as a matter of law compels a
finding by clear and convincing evidence that Melanie intended
her August 16, 2002, letter to be testamentary. This is a very
heavy burden, but it is not insurmountable. (O.B., supra, at pp.
1006-1007.)
This is one of those rare cases where this very heavy
burden has been met.
16
Taken together, the words in the letter itself and the
circumstances surrounding its creation and execution compel the
finding, as a matter of law, that Melanie intended her letter to
have testamentary effect. The substance of the letter names
Maria as Melanie’s “sole beneficiary in the event of [her] death”
as well as the person who has “full discretion” to dispose of “all [of
her] personal possessions and property”; lists four of Melanie’s
most significant assets (namely, her house, her retirement
account, her car, and her checking account); and even
contemplates that “inquiring family members” might seek some
of her belongings, but leaves it to Maria to decide which “personal
belongings” to give them. The format of the letter also evinces a
level of formality consistent with a document meant to have
enduring effect: Melanie drafted the letter on her work
stationery; 5 recited her full name, address, and social security
number; addressed it “[t]o whom it may concern”; started the
letter with a recitation of her “sound mind and excellent health”;
and concluded the letter with a recitation of the date and location
of signing as well as her signature. The surrounding
circumstances further—and, in our view, conclusively—confirm
Melanie’s intent “to make a revocable disposition of [her]
property to take effect upon [her] death.” (Sargavak, supra, 35
Cal.2d at p. 95.) Melanie told Maria—the “sole beneficiary” and
effective executor of the will—that Melanie was executing a “will”
5 Melanie’s sister asserts that there was no evidence that the
stationery came from the same Social Security Administration
office where Melanie was working at the time, but it is
undisputed that Melanie was working at the Administration at
the time; any failure by Melanie to use the most up-to-date
location has no bearing on her testamentary intent.
17
and Melanie did so in an email sent on the very same day she
created and executed the letter. What is more, Melanie on that
date was days away from having major surgery, and hence wrote
the letter at a moment in time when she was more acutely facing
her own mortality. Melanie also treated the letter like a will
insofar as she gave Maria (again, the sole beneficiary and
executor of the will) a copy of the letter and kept the original for
herself in a place where it was likely to be found—and was,
indeed, found—decades later.
None of the reasons cited by the probate court or proffered
by Melanie’s sister negate this conclusion.
The probate court rejected Maria’s claim based on what can
be grouped into three reasons.
First, the court generally noted its “doubts about the letter
and its context” as well as its concerns that Melanie and Maria
acted “inconsistent[ly] with what engaged people do.” More
specifically, the court pointed to the facts that (1) neither Melanie
nor Maria subsequently told other people (such as Maria’s
daughters or Melanie’s sister) about the letter, and (2) Melanie
and Maria did not thereafter discuss the letter between
themselves. As to the first point, testators typically share a will
with the persons most affected by that will, such as the will’s
beneficiaries and its executor. Here, Maria is both the sole
beneficiary and the effective executor named by Melanie, and
Melanie not only told her about the “will” on the day it was
created, but also gave her a copy and told her where to find the
original. The fact that neither Melanie nor Maria stood on a
proverbial mountaintop and shouted news of the will to others is
of no consequence, particularly when the only other persons
identified as potential recipients of the will were Melanie’s
18
distant sister and Maria’s teenage and pre-teen daughters. As to
the second point, Melanie and Maria’s failure to discuss at a later
point in time a will that Melanie had already executed and had
already delivered has no bearing on Melanie’s intent at the time
of execution; a contract does not become less of a contract because
the parties do not talk about it later. What is more, whether
Melanie and Maria were, in the probate court’s eyes, a
conventional or unconventional engaged couple more generally is
wholly irrelevant.
Second, the court questioned Maria’s “credibility” as “an
accurate reporter of the facts.” We recognize that we cannot
second guess the probate court’s credibility findings, but the
significance of the court’s credibility finding to the court’s ruling
is difficult to assess. We cannot accept that the court rejected all
of Maria’s testimony as not credible because the court seemed to
accept as true some of Maria’s testimony and because much of
Maria’s testimony was otherwise corroborated by emails or facts
that the parties stipulated were undisputed. What is more, the
specific testimony that the court identified would, if rejected as
not credible, tend to support a finding of Melanie’s testamentary
intent under the logic the court was applying. For instance, the
court may have not believed—as opposed to rejecting as
“inconsistent with what engaged people do”— the facts testified
to by Maria that she and Melanie did not share news of the will
with others or further discuss the will or Melanie’s finances
among themselves; but if Maria was not truthful about those
facts, and Maria and Melanie had told others of the will and
further discussed it among themselves, then that would tend—
under the probate court’s stated reasoning—to counsel in favor of
a finding that Melanie had testamentary intent. What is more,
19
Maria’s failure to go hunting for the original document in
Melanie’s house or to remember the name of a neighbor that
Melanie mentioned in passing in a 2002 email has no bearing on
Melanie’s intent when drafting the letter.
Third, the court cited the “questions” it had about Melanie
and Maria’s “relationship” as well as the possibility that Melanie
may have “forgotten” about the will. These concerns are
irrelevant to the pertinent question of intent under section 6110,
subdivision (c)(2). As for the nature of Melanie’s and Maria’s
relationship, it is undisputed that at the time the letter was
drafted, Melanie was in “love” with Maria and that she and
Maria were engaged. Whether it was wise for Melanie to have
drafted a will leaving all of her possessions to someone she
started dating six months earlier is irrelevant to whether she
intended the document she drafted to be a will; critically, it is not
for the courts to act in a parens patriae role over competent
adults by second-guessing the wisdom of their personal decisions.
As for whether Melanie forgot about the will after she and Maria
parted ways, a person’s failure to revisit a will in light of changed
circumstances has nothing to do with her intent at the time she
drafted the will. (Ben-Ali, supra, 216 Cal.App.4th at p. 1037
[looking to what the testator intended “at the time [s]he signed
it”]; Estate of Anderson (1997) 56 Cal.App.4th 235, 247 [focusing
on “the testator’s intention . . . at the time [s]he executed the
will”]; accord, Estate of Boysen (Or.App. 2019) 441 P.3d 633, 635-
636 [looking to drafter’s intent that “the specific writing at issue .
. . be . . . her will at the time of its creation” and not “at the time
of [her] death”].)
20
Melanie’s sister offers five additional reasons why, in her
view, the evidence does not compel a finding in Maria’s favor.
None is persuasive.
First, the sister urges that the cases have upheld a
document as a will under section 6110, subdivision (c)(2), only
when there is at least one witness to the will’s execution (e.g.,
Stoker, supra, 193 Cal.App.4th 236), and that we should formally
adopt this as a prerequisite. This would require us to rewrite the
statute to add a new prerequisite; as noted above, this is beyond
our purview. (Jarman, supra, 10 Cal.5th at p. 392.)
Second, the sister argues that the record is silent as to how
the letter was prepared and who prepared it. While Melanie—
the sole witness to the letter’s creation—was not able to testify
that, on August 16, 2002, she drafted the letter on her computer
herself and then printed it out on her work stationery, that is the
only reasonable inference from the letter itself as well as from
Melanie’s same-day email to Maria reporting what she had just
done. Plus, the handwriting expert’s conclusion that the
signature on the will is Melanie’s signature is unchallenged. The
sister’s suggestion that someone else authored the letter or that
there was something suspicious about how it came to be on the
stationery or in Melanie’s desk 18 years later is based on nothing
but speculation. Indeed, our Legislature in enacting section
6110, subdivision (c)(2), specifically sought to give effect to “self-
drafted will[s]” that are “type[d] . . . on the computer, print[ed] . .
. , and sign[ed].” (Assem. Com. on Judiciary, Rep. on Assem. Bill
No. 2248 (2007-2008 Reg. Sess.) as amended Mar. 24, 2008, p. 2,
archived at (as of May 19, 2023).)
The sister’s argument questioning the validity of Melanie’s will
because it was typed, printed, and signed is thus wholly at odds
21
with the legislative intent animating section 6110, subdivision
(c)(2).
Third, the sister points out that Melanie’s retirement
account was closed in 2012, but a document that was intended to
be a will at one point in time does not somehow retroactively lose
its status as a will merely because some of the property devised
in the will subsequently passes out of the drafter’s putative
estate.
Fourth, the sister contends that Melanie drafted the
letter—not to dispose of her property—but instead to get Maria’s
attention while she was abroad because Maria was not being
quick enough in responding to Melanie’s emails. This contention
is unsupported by the record, as the only emails by Melanie
expressing some frustration with Maria’s response time were all
drafted after the August 16, 2002, letter; there are no emails and
no other evidence evincing Melanie’s frustration prior to
Melanie’s creation of her will.
Lastly, the sister at oral argument asserted that there was
no evidence presented regarding Melanie’s competency to execute
a will or whether she was under any undue influence at the time
she wrote the letter. These assertions are irrelevant to the
question of whether the document was intended as a will, which
is the only question before us. Whether it is enforceable as a will
is a distinct and separate issue not presently before us.
22
DISPOSITION
The order is reversed. Maria is entitled to her costs on
appeal.
CERTIFIED FOR PUBLICATION.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P. J.
ASHMANN-GERST
_________________________, J.
CHAVEZ
23
APPENDIX A
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