Estate of Denman v. Denman

California Court of Appeal Jun 20, 1979 No. Civ. 18265Published

Before: Brown (Gerald)

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Holding. The court held that an estate administrator has a duty to resist petitions that threaten the estate's assets or challenge a probated will, and the trial court did not abuse its discretion in authorizing the administrator to oppose such petitions.

Issues

Whether an estate administrator has a duty to resist a petition to determine community property that would reduce the estate's corpus.
Whether an estate administrator has a duty to resist a petition to probate a later-dated will after an initial will has been admitted to probate.
Whether the trial court abused its discretion in authorizing the administrator to incur costs to oppose these petitions.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“Where a will has been admitted to probate, the executor has the right to resist a contest if an allegedly later will is presented”

“The trial court has the discretion to determine whether the claimants or the estate will bear the expense”

“In resisting the petitions here the bank has a duty to act as a representative of the estate and not as an advocate for the residuary legatees.”

Opinion

BROWN (Gerald), P. J.

Thomas H. Denman appeals the order instructing Bank of America, NT & SA (Bank) to resist his petitions to determine community property and to probate a later dated will.

Alice T. Denman died December 28, 1976, leaving an estate in excess of $6 million. Alice’s will dated September 16, 1975, with a codicil, was filed on January 28, 1977, and made the following dispositions: $500 per month to her maid, $10,000 to a church, $1,200 per month plus all property owned or possessed in Nevada to her husband, Tom, specific monetary bequests to her sisters and the rest and residue equally to her five nieces and nephews. It was admitted to probate. Tom filed a petition to determine community property interests on May 11, 1977 (Prob. Code, § 650 et seq.) and a petition to probate an acknowledgment and agreement as a will and an addendum as a codicil on February 23, 1978. The administrator-with-will-annexed, Bank, filed a successful petition to incur extraordinary costs to oppose these two petitions.

Tom argues the administrator of an estate must take a neutral position when the claimants disagree about the estate’s distribution and the court’s order that Bank can intervene here places it in a conflict of interests. However, the law in this area is neither so simple nor so clear. Where a will has been admitted to probate, the executor has the right to resist a contest if an allegedly later will is presented

(Jay

Superior Court,

10 Cal.App.3d 754, 758 {89 Cal.Rptr. 466]). Generally the executor likewise has been found to have a duty to resist such claims. (See

Estate of Korthe, 9

Cal.App.3d 572, 574, 578 [88 Cal.Rptr. 465].) However, insofar as the extent of the executor’s duty is unclear so also is his right to compensation

(Estate of Parsons,

65 Cal. 240, 241 [3 P. 817];

Estate of Costa,

191 Cal.App.2d 515, 520 [12 Cal.Rptr. 920]). The trial court has the discretion to determine whether the claimants or the estate will bear the expense (Prob. Code, § 1232;

Estate of Hart,

119 Cal.App.2d 310, 314 [259 P.2d 703]). Since the trial court has discretion in

Estate of Denman v. Denman

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