Murray v. Blackney

California Court of Appeal Jul 22, 1983 No. Civ. 26550Published

Before: Wallin

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Holding. The court held that a will executed prior to a remarriage is revoked as to the surviving spouse under Probate Code section 70 unless the will contains a clear manifestation of intent to disinherit a future spouse, which general exclusionary clauses or mere mention of the spouse do not satisfy.

Issues

Whether a will executed before a remarriage is revoked as to the surviving spouse under Probate Code section 70 when the will does not specifically contemplate the future marriage.
Whether a general disinheritance clause or the mention of a former spouse in a will is sufficient to overcome the statutory presumption of revocation upon remarriage.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The exclusionary clause in Bonnie’s will did not intentionally omit a future heir who becomes so by marriage.”

“revocation by marriage is a presumption which can be rebutted only by a clear manifestation of intent on the face of the will”

“Probate Code section 70 legislates the natural assumption that a decedent does not intend to disinherit an after-acquired spouse.”

Opinion

WALLIN, J.

The probate court awarded Paul Murray one-third of his deceased wife’s estate under the provisions of Probate Code section 70. The decedent’s sons appeal.

Statement of Facts

Paul Murray and Bonnie I. Murray were married on August 29, 1972. Their marriage produced no children. By an earlier marriage Bonnie had three sons, Robert, Gary and Russell Blackney.

On July 31, 1978, Bonnie signed a petition to dissolve her marriage to Paul. On the same day, she executed her last will and testament naming her three sons as sole beneficiaries of her estate.

On October 23, 1979, the judgment of dissolution was entered.

[327]

Bonnie and Paul lived separately for a short period. However, within a year of the dissolution, they reconciled their differences and remarried on September 3, 1980. Three days later Bonnie died of a brain tumor. Her will of July 31, 1978, was never revoked or changed.

On October 14, 1980, the will was admitted to probate. Paul promptly filed a petition to revoke, claiming the will executed before the remarriage failed to provide for him and was, therefore, revoked as to him under Probate Code section 70. He claimed one-third of Bonnie’s estate under the laws of intestate succession. (Prob. Code, §§ 201 et seq., 221.) Relying principally on

Estate of Poisl

(1955) 44 Cal.2d 147 [280 P.2d 789], the trial court granted judgment for Paul.

Discussion

Probate Code section 70 reflects a strong public policy against disinheritance of a surviving spouse, who is not provided for in the premarital will of the testator.

(Estate of Green

(1981) 120 Cal.App.3d 589, 592 [174 Cal.Rptr. 654].)

Section 70 states: “If a person marries after making a will, and the spouse survives the maker, the will is revoked as to the spouse, unless provision has been made for the spouse by marriage contract, or unless the spouse is provided for in the will, or in such way mentioned therein as to show an intention not to make such provision; and no other evidence to rebut the presumption of revocation can be received.” In this case, there is no evidence of a marriage contract and the will contains no provision for Paul; the sole issue is the third exception’s application.

Murray v. Blackney

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WALLIN, J.

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