Estate of Susan Jee

DISCUSSION

I. Legal Background

A motion for judgment on the pleadings brought by a defendant or respondent may be granted on where the petition fails to state sufficient facts to constitute a cause of action. (Code Civ. Proc., § 438, subd. (c)(1)(B)(ii).) The motion may be directed to the entire complaint or any cause of action therein. (Code Civ. Proc., § 438, subd. (c)(2)(A).) The grounds for the motion “shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ.

Proc., § 438, subd. (d).) In ruling on a motion for judgment on the pleadings, “[t]he trial court must accept as true all material facts properly pleaded, but does not consider conclusions of law or fact, opinions, speculation, or allegations contrary to law or facts that are judicially noticed.” (Stevenson Real Estate Services, Inc. v. CB Richard Ellis Real Estate Services, Inc. (2006) 138 Cal.App.4th 1215, 1219-1220 (Stevenson).)

“[A] motion for judgment on the pleadings may be addressed to the pleading as a whole or to separate counts. If addressed to the pleading as a whole, the motion must be denied if even one count is good. [Citation.] If addressed to separate counts, the motion may be granted as to some counts and denied as to others. [Citation.]” (Heredia v. Farmers Ins. Exch. (1991) 228 Cal.App.3d 1345, 1358.)

A motion for judgment on the pleadings may be granted with or without leave to amend. Denial of leave to amend generally constitutes an abuse of discretion if the pleading does not show on its face that it is incapable of amendment. (Virginia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th 1848, 1852.)

II. Merits of the Motion

Petitioner asserts that the unsigned, unwitnessed will attached to the Lost Will Petition cannot meet the requirements of a valid will and that Objector’s counsel’s stipulation to the admission of the 2015 will is a judicial admission precluding Objector from seeking to probate a later will.

A. Requirements of a Valid Will

“The traditional method for making a valid will is that specified in Probate Code section 6110: a written instrument is signed by the maker of the will or testator, and witnessed by two witnesses who are present when the testator signs or acknowledges his signature.” (Estate of Brenner (1999) 76 Cal.App.4th 1298, 1301 (Brenner).) “Probate Code section 6111 provides an exception to the foregoing formalities, and makes valid a ‘holographic’ or handwritten will ‘if the signature and the material provisions are in the handwriting of the testator.’ ‘Holographic’ means simply a document wholly written by the hand of its author. [Citation.]” (Ibid.)

Here, the proffered will does not qualify as a holographic will pursuant to Probate Code section 6111, subdivision (a), which requires the material provisions of a holographic will to be in the testator’s handwriting. No attesting witnesses signed the purported will and thus, it does not qualify as an attested will under Probate Code section 6110, subdivision (c)(1), which states, “Except as provided in paragraph (2), the will shall be witnessed by being signed, during the testator’s lifetime, by at least two persons each of whom (A) being present at the same time, witnessed either the signing of the will or the testator’s acknowledgment of the signature or of the will and (B) understand that the instrument they sign is the testator’s will.”

Although Objector has not opposed the motion, the Court notes that Objector filed a memorandum of points and authorities in support of the admissibility of the proffered will on January 2, 2026. In that memorandum, he contends that the purported will falls under the harmless error provision of Probate Code section 6100, subdivision (c)(2), which states, “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.”

But, Probate Code section 6100, subdivision (c)(2) does not purport to circumvent the requirement that a will be signed by the testator (or someone signing on the testator’s behalf) under Probate Code section 6100, subdivision (b). It only provides that clear and convincing evidence may overcome the lack of signatures of attesting witnesses under Probate Code section 6100, subdivision (c)(1).

Objector’s theory is that the unsigned proffered will is a copy of the will Decedent actually executed. In the Lost Will Petition, he states that Decedent informed him on numerous occasions that she had executed a will that provided for him. (Lost Will Petition, Attachment 4

3.g.(2)(a).) In his memorandum filed January 2, 2026, Objector relies on two main cases, In Re Paul’s Estate (1947) 81 Cal.App.2d 595 (Paul) and In Re Camp’s Estate (1901) 134 Cal. 233 (Camp). Neither case assists Objector.

Objector cites Paul for the proposition that execution of a lost will can be proven by testimony. But, in Paul, “[t]wo witnesses testified that, after the death of deceased, they and one other party saw and read the will which bequeathed all the property to Hazel Rhoten. . . . The evidence [was] that the will was found in decedent’s purse by three women who were present about the time of death. It was read by them and returned to the purse, which was then delivered to a sister of deceased.” (Paul, supra, 81 Cal.App.2d at p. 596.) Here, Objector does not argue that anyone has ever seen the purported will.

Objector cites Camp for the proposition that the proponent of a lost will need not provide the exact language of the lost will; the substance of the lost will is sufficient. In Camp, the proponent of a holographic will filed a petition indicating that the document proffered was a will from which a portion of the text had been torn. (Camp, supra, 134 Cal. at pp. 233-234.) The California Supreme Court indicated that the witnesses testifying in support of the proffered will need to reproduce the exact language of the will but the substance of the provisions of the will must be proven. (Id. at pp. 235-236.)

But, in Camp, again, witnesses testified that they had seen the signed will and were able to testify to the missing provisions. (Id. at pp. 233-234.) Here, Objector alleges only that Decedent told him and another person that she had created a will that would allow Objector to live at Decedent’s residence located at 216 Thompson Square, Mountain View and that, on information and belief, Decedent told Petitioner in Spring 2024 that she had updated her will. (Lost Will Petition, Attachment 3.g.(2)(a).)

Here, as discussed above, the purported draft will cannot be probated as either an attested will under Probate Code section 6110 or as a holographic will under Probate Code section 6111. Objector’s allegations do not establish that anyone ever saw a signed copy of the purported will and thus, the petition provides no basis for the Court to conclude that the updated version of the will Decedent allegedly referenced to both Objector and Petitioner is the same document as the purported will attached to the Lost Will Petition. Accordingly, the motion is GRANTED.

B. Leave to Amend

Here, Objector has not opposed the motion and he does not provide any argument regarding how the petition may be amended to correct the above deficiencies. In general, “Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading. [Citations.]” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 411 [“Plaintiffs have the burden to show how they could further amend their pleadings to cure the defects. [Citation.]”].)

But, “[i]f the plaintiff has not had an opportunity to amend the complaint in response to the demurrer, leave to amend is liberally allowed as a matter of fairness, unless the complaint shows on its face that it is incapable of amendment. [Citations.]” (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 747; see also Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999 [A motion for judgment on the pleadings is the functional equivalent of a general demurrer].)

Here, it does not appear from the face of the petition that amendment is impossible. Here, Petitioner is attempting to probate the draft version of the will, which as discussed above, cannot succeed as a matter of law. (See Lost Will Petition, § 3(f) [indicating that will is attached], Attachment (3)(f) [copy of draft will].) But, “extrinsic evidence is admissible to prove that a will has been lost or destroyed, and to prove its contents. [Citations.]” (Estate of Duke (2015) 61 Cal.4th 871, 888; see also, Prob.

Code, 8223 [“The petition for probate of a lost or destroyed will shall include a written statement of the testamentary words or their substance. If the will is proved, the provisions of the will shall be set forth in the order admitting the will to probate.”].) Thus, it appears that the petition could potentially be amended to plead that Decedent left a lost will containing the provision that Objector be allowed to reside at the Mountain View residence.

The Court does not find persuasive Petitioner’s argument that Objector’s counsel’s stipulation to the admission of the 2015 will is a judicial admission preventing Objector from attempting to probate a later lost will. Assuming that counsel’s stipulation amounts to a judicial admission as to the validity of the will, it cannot be construed as an admission that there were no later wills. Probate Code section 8226, subdivision (b) expressly contemplates admission of a later will despite the previous admission of another will: “Subject to subdivision (c), a will may be admitted to probate notwithstanding prior admission to probate of another will or prior distribution of property in the proceeding.

The will may not affect property previously distributed, but the Court may determine how any provision of the will affects property not yet distributed and how any provision of the will affects provisions of another will.” (Italics added.) Accordingly, the Court will grant leave to amend.

CONCLUSION

The motion is GRANTED WITH 30 DAYS’ LEAVE TO AMEND.

The Court will prepare the final order.

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