Estate of Hudson

Opinion

BROWN (Gerald), P. J.

Della Coone, contestant of the will of Harold Hudson, appeals a judgment admitting the will to probate under Probate Code section 26.

1

Harold Hudson, a resident and domiciliary of San Diego County, made a will in 1977 while in Japan. The will, in the Japanese language and made with the assistance of a Japanese attorney, is stipulated to be valid in conformity with Japanese law. The sole beneficiary of the will is Fujiko Hudson, widow of the decedent. In addition to his widow, Hudson is survived by contestant Coone, his mother.

When Hudson died in 1980, his will was offered for probate in California because he owned real and personal property located in San Diego County. Coone contested the will, alleging invalid execution under California law. She seeks a declaration of intestacy, under which she would receive one-half of decedent’s assets. The superior court admitted the will to probate under Probate Code section 26.

Section 26 recognizes a will made outside of California is valid if it is “executed according to the laws of the state in which it was executed. ” Because the stipulation says the will conforms with Japanese law, the only issue is whether the word “state” as used in section 26 embraces foreign nations as well as other states of the United States.

Before 1972, if a will was made outside of California and did not conform to the execution requirements of the California Probate Code, section 26 recognized it as valid only if it was “valid under the laws of a state or country in which the testator is domiciled at the time of his death . . . so far as the same relates to personal property.” In 1972, section 26 was amended in order to liberalize California’s acceptance of wills made outside the state. The new version of section 26 recognizes as valid wills executed according to (1) the provisions of the California Probate Code, (2) the laws of the state in which it was executed or (3) the laws of the decedent’s domicile at the time of death or on the date of the execution of the will.

[986]

When section 26 was rewritten in 1972, express reference to wills executed in foreign countries was omitted. Coone contends this change shows the intent of the Legislature to take wills executed in foreign nations outside the scope of section 26. This argument might be persuasive if the abandonment of the express reference to wills made in foreign countries had been the only change made by the 1972 amendment. That, however, is not the case. The 1972 amendment is a complete revision of section 26 which greatly increases the type and number of foreign wills allowed into probate in California, e.g., a testator no longer need to have been domiciled in a foreign state for his will, validly executed there, to be admitted in California. Coone would have us construe the 1972 amendment to exclude wills which were valid under the pre-1972 version of section 26 while the purpose of the amendment was to liberalize acceptance of foreign wills. Such a construction would violate the spirit of the amendment.