Estate of Montgomery CA1/3

Filed 8/6/24 Estate of Montgomery CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Estate of HELENE A. MONTGOMERY, Deceased.

JOHN LARSEN, A169771 Executor and Respondent, v. (Lake County Super. Ct. No. PR503696) BARBARA HORSFALL, Objector and Appellant.

Barbara Horsfall appeals from an order dismissing her petition to revoke a will admitted to probate as the will of her mother, Helene Montgomery. (Prob. Code, § 8270; statutory references are to this code unless otherwise indicated.) The trial court dismissed the petition pursuant to a motion filed by Montgomery’s executor, John Larsen, who claimed the court lacked jurisdiction to entertain Horsfall’s petition because it was not timely served. Larsen has declined to participate in this appeal. We reverse. BACKGROUND On April 18, 2023, Larsen filed a petition for probate of Montgomery’s will, dated February 20, 2023 (the February 2023 will). Larsen alleged that the February 2023 will, which names him as a beneficiary and executor, was

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executed by Montgomery two days before she died on February 22. The February 2023 will attached to Larsen’s petition contains two handwritten paragraphs: “Helene Montgomery last will and wishes and testament. That will be splitting my property between my Ex Husband William Edward Montgomery and my nephew John J Larsen and my daughter Barbara Horsfall. [¶] My house, car, boat, bank accounts. Bank Accounts are at Wells Fargo nephew John Larsen is my executor. Property is to be split evenly between the three individuals mentioned above I wish to be cremated with ashes shared if they want.” A difficult to read signature appears beneath the two paragraphs and, beneath that, the following statement in handwriting that matches the substantive text: “Wendy A Drew – witness.” Larsen attached to his petition an “All-Purpose Acknowledgment” completed by a notary public, who attested that Montgomery signed a handwritten last will dated February 20, 2023. The acknowledgement form does not identify any additional witnesses. The February 2023 will was admitted to probate on May 16, 2023. On August 31, Horsfall filed a petition for revocation of Montgomery’s “purported” will and admission of the true will to probate. Horsfall contested the validity of the February 2023 will on the following grounds: it was not written by Montgomery, and material provisions are not in her handwriting; it lacks formalities required for a valid will as there were not two witnesses to its execution; it was allegedly executed two days before Montgomery’s death, and she was not of sound mind at that time; and it is not Montgomery’s will “as it is the result of undue influence.” Horsfall alleged that when Larsen filed his probate petition, he was in possession of Montgomery’s true will dated October 20, 2019 (the October 2019 will), which Horsfall sought to have admitted to probate. She also