Estate of Wilts

80 Cal.App.3d 599 (1978) 145 Cal. Rptr. 759 Estate of OTTO WILTS, Deceased.

KENNETH CORY, as State Controller, Petitioner and Appellant,

v.

BANK OF AMERICA, as Executor, etc., Objector and Respondent.

Docket No. 42231. Court of Appeals of California, First District, Division One.

May 3, 1978. [600] COUNSEL

Myron Siedorf, Edwin Rosenthal and John D. Schell for Petitioner and Appellant.

Nichols, Catterton & Downing, M.R. Downing and Roy A. Sharff for Objector and Respondent.

OPINION

LOW, J.[*]

If a transferee is not a surviving spouse, ancestor or issue of the decedent, the transferee cannot gain the most preferred inheritance tax status, unless the decedent stood in the "mutually acknowledged relationship of a parent" to the transferee. This case asks whether this relationship was established where the transferee was not related by [601] blood or marriage and never lived in the decedent's household. We do not believe the required relationship was established in this case.

Otto Wilts died on November 6, 1974, and his holographic will of June 8, 1961, was admitted to probate. Wilts left his entire estate to Betty Barnes and six of her nine children.

In 1935 or 1936, Mrs. Rockwell (Betty's mother) divorced her husband and moved to Oakland, California, with her daughters. She was awarded custody of her children. After the move to California, Betty had no contact with her father. In Oakland, they first lived in an apartment building where Otto Wilts was also a tenant. Before Betty was 15, she and Wilts had established a close, cordial relationship. When Betty was placed in an orphanage at age five or six, Wilts partially paid the board, paid dental bills, bought her toys, visited her frequently, and took her to many recreational activities. Mrs. Rockwell testified that when she came to Oakland, her doctors had given her only five years to live and Wilts had agreed to take care of Betty the rest of her life.