Hirschi v. Eubanks

California Court of Appeal Dec 11, 1980 No. Civ. 58416Published

Before: Hastings

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Holding. A testator may effectively disinherit an unnamed heir by including a clause that expressly excludes any person who would be entitled to a share of the estate if the testator had died intestate. Such a clause satisfies the requirements of Probate Code section 90 even if the testator erroneously declares in the will that they have no living children or issue.

Issues

Whether a testator's declaration that they have no living children prevents the application of a general disinheritance clause to an unnamed grandchild.
Whether a disinheritance clause referencing persons who would be entitled to the estate if the testator died intestate is sufficient to disinherit a pretermitted heir.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It is now established decisional law that an heir or heirs may be disinherited if they belong to a class of persons expressly excluded from the testator’s will.”

[683]

Opinion

HASTINGS, J.

By way of summary judgment the trial court found that Leigh Ann Hirschi, a minor, was not a pretermitted heir of Evelyn J. Hirschi, deceased. This appeal followed.

On June 9, 1969, decedent’s only son, Robert C. Hirschi (Robert) died. His surviving spouse, Judith (guardian ad litem), was pregnant with appellant, having become so on May 14, 1969. Appellant was born on February 1, 1970. Between that date and decedent’s death on July 15, 1977, a period of seven years, decedent consistently and publically refused to acknowledge appellant as the issue of her son.

Decedent’s last will dated August 17, 1976, and codicil dated March 14, 1977, were admitted to probate on August 19, 1977. Appellant was not specifically named in the will.

Decedent’s will contained the following clauses material to the issues at hand:

“Third: I declare that I have no living children, my only child, Robert C. Hirschi, having predeceased me, leaving no issue,...”

“Ninth: I declare that I have intentionally omitted to provide for any other person, not specifically named herein, and if any person shall claim any portion of my Estate by reason of relationship, or otherwise, or if any person who, if I died intestate, would be entitled to any part of my Estate, or if any of the Devisees or Legatees, or their successors in interest, shall either directly or indirectly, alone or in conjunction with any other person, contest any provision of this Will upon any grounds whatsoever, or attack, oppose or seek to set aside this Will, or to impair, invalidate or set aside any of its provisions, then, in such event, I give, devise and bequeath to such person or persons, the sum of One Dollar ($1.00), and no more, in lieu of any other share or interest in my Estate.”

Appellant filed a “Petition for Determination of Entitlement to Estate Distribution” as a pretermitted heir, and then sought a summary judgment on the issue. Respondents who are the specifically named legatees under the will, also moved for a summary judgment in their favor and moved for an order dismissing appellant’s petition.

Hirschi v. Eubanks

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HASTINGS, J.

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