Estate of Gardner

Opinion

NEWMAN, J.

Beryl Gardner Lane appeals from a judgment awarding one-third of Maud Gardner’s estate to Edwin Gardner, who the trial court ruled was a pretermitted heir under Probate Code section 90. The issue is whether the general disinheritance clause in Maud’s will cuts off the rights of Edwin, who was not named.

1

Beryl is Maud’s daughter; Edwin is a grandson; his father (Maud’s son) predeceased Maud.

[622]

Maud’s will was executed in 1969, when Beryl was Maud’s only surviving child. Besides Edwin, two other grandchildren survived Maud. Edwin argues that he is entitled to a share of Maud’s estate under Probate Code section 90, which provides: “When a testator omits to provide in his will for any of his children, or for the issue of any deceased child . . . and such child or issue are unprovided for by any settlement, and have not had an equal proportion of the testator’s property bestowed on them by way of advancement, unless it appears

from the will

that such omission was intentional, such child or such issue succeeds to the same share in the estate of the testator as if he had died intestate.” (Italics added.)

Beryl maintains that, because of Maud’s phrase “I declare that I have intentionally failed to provide for any person not mentioned herein,” it obviously “appears from the will that such omission [of Edwin] was intentional.” Edwin contends that, to disinherit an heir protected by section 90, the testator must name either the heir or a class to which the heir belongs (e.g., “grandchildren,” “relatives,” “those who would take if I died intestate”). (See

Estate of McClure

(1963) 214 Cal.App.2d 590, 593 [29 Cal.Rptr. 569].) He argues that the words stating that Maud “intentionally failed to provide for any person not mentioned herein” do not show that she had section 90 heirs in mind.

In

Estate of Torregano