Estate of Clark

California Court of Appeal Mar 7, 1984 No. 23085Published

Before: Evans

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Holding. A testamentary option to purchase real property must be exercised within the time limitations set forth in Probate Code section 854, which requires exercise within six months after the issuance of letters testamentary. Failure to comply with these statutory time constraints results in the lapse of the option.

Issues

Whether an optionee's failure to comply with the time limitations of Probate Code section 854 precludes the exercise of a testamentary option.
Whether an executor's status as a residual beneficiary creates a conflict of interest that excuses an optionee's failure to timely exercise a testamentary option.

Disposition. reversed

Quotations verified verbatim against the opinion

“the only conclusion that can be reached is that a testamentary option must be exercised within the time limitations set forth in the statute.”

“His failure in this regard compels the conclusion that he waived his right to exercise the options.”

“His failure to exercise the options in time cannot be blamed on any violation of duty by Hants as executor of the estate”

152 Cal.App.3d 894 (1984) 199 Cal. Rptr. 753 Estate of VELMA CHURCH CLARK, Deceased.

DAVID C. HANTS, as Executor, etc., Petitioner and Respondent,

JEAN PIERRE BORDERRE, Claimant and Respondent; RALPH L. HANTS et al., Objectors and Appellants.

Docket No. 23085. Court of Appeals of California, Third District.

March 7, 1984. [895] COUNSEL

Feldman, Waldman & Kline, Leland R. Selna, Jr., Martha J. Shaver, Patricia S. Mar and Lowell Finley for Objectors and Appellants.

Seaman, Seaman & Brodeur and David A. Hugo for Petitioner and Respondent.

Trezza, Ithurburn & Steidlmayer and John J. Trezza for Claimant and Respondent.

OPINION

EVANS, J.

Velma Church Clark (decedent) died testate on November 6, 1981. Her will was admitted to probate and on December 1, 1981, Jack Burford (Burford) was appointed executor. Letters testamentary issued the following day.

The crux of this appeal involves the fifth, sixth, and seventh paragraphs of the decedent's will. Each paragraph granted claimant and respondent Jean Borderre a testamentary option to purchase certain real property. Although the will specified the purchase price for each parcel, it was silent as to the method and time for the exercise of the options.

In December 1981, Burford convened a meeting of the potential heirs and devisees, which was attended by Borderre. At the meeting the options granted to Borderre under the terms of the will were discussed. At that time, Borderre indicated he had not decided whether he would exercise the options.

[896]

Estate of Clark

AI Brief

OPINION

EVANS, J.

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