Estate of Lane

California Court of Appeal May 7, 1970 No. 9956Published

Before: Ault

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Holding. The court held that contestants lacked standing to challenge a will because they could not establish the physical existence of a prior will at the time of the testator's death as required by Probate Code section 350. Consequently, the prior will was inoperative as a basis for standing, and the summary judgment dismissing the contest was proper.

Issues

Whether contestants had standing as 'interested persons' to contest a will based on a prior, non-produced will.
Whether the 'existence' requirement of Probate Code section 350 refers to physical or legal existence.
Whether the trial court retained jurisdiction to consider additional evidence after a notice of appeal had been filed.

Disposition. affirmed

Quotations verified verbatim against the opinion

“To establish status as "interested persons," with standing to contest the 1967 will, the Macks were required to make a prima facie showing they could prove the 1963 will as a lost or destroyed will under the provisions of Probate Code section 350.”

“The word "existence," used in the code section, means "physical existence" rather than "legal existence."”

7 Cal.App.3d 402 (1970) 86 Cal. Rptr. 620 Estate of JUANITA V. LANE, Deceased.

KENNETH F. MACK et al., Plaintiffs and Appellants,

BANK OF AMERICA et al., Defendants and Respondents.

Docket No. 9956. Court of Appeals of California, Fourth District, Division One.

May 7, 1970. [404] COUNSEL

Marinos, Augustine & Delafield, Sullivan, Marinos, Augustine & Delafield, James S. Marinos, Ronald R. Hrusoff and Robert A. Prahl for Plaintiffs and Appellants.

Provence & Provence, Norma A. Mokma, Higgs, Jennings, Fletcher & Mack, Vincent E. Whelan, Joel C. Estes, Curran, Golden, McDevitt & Martin and O'Neill P. Martin for Defendants and Respondents.

OPINION

AULT, J.

Contestants, Kenneth F. Mack and Alta Colleen Mack (Macks), appeal from a summary judgment dismissing their petition for revocation of probate and will contest.

Juanita V. Lane died on February 14, 1968. Her will, executed on April 3, 1967, and the codicil thereto, executed May 19, 1967, were admitted to probate on March 12, 1968. On July 25, 1968, the Macks filed a petition for revocation of the probate of the will and codicil on the ground the decedent lacked testamentary capacity. The Macks were not related to the decedent nor to her predeceased husband. They sought to establish standing to contest the will by showing they were the sole beneficiaries of a previous will executed by the decedent in October 1963.

[405] After the contest was filed, respondents, the beneficiaries of the 1967 will, submitted written interrogatories to the contestants for answer. The Macks' answers indicated they could not produce the original 1963 will, but had a copy which had been furnished by the attorney who drew it. The answers also conceded contestants had no evidence to establish the 1963 will was in existence at the time of Mrs. Lane's death, or that it had been lost or destroyed fraudulently or through public calamity during her lifetime.

Estate of Lane

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OPINION

AULT, J.

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