Robinson v. MacBride

VAN DYKE,

*

This is an appeal from a judgment denying a petition for revocation of probate of a will of decedent on

[557]

the ground that the contestants were not persons “interested” within the purview of section 380 of the Probate Code and that for lack of such interest they were incapacitated to maintain their contest.

Contestants sought revocation of the probate of a will dated July 3,1959, on the ground that it was executed by the testator under the undue influence of one Alice Schoener. Respondents by their answer admitted that contestants are the testator’s sole heirs at law. Respondents denied generally the allegations of undue influence and alleged further that contestants did not have such an interest as would enable them to commence or maintain their contest. This was said to be so by reason of the fact that by a prior valid will each contestant received either the same or a lesser bequest than by the will in contest, and hence would not be benefited by revocation of probate.

Respondents moved for, and over the objection of contestants the court granted, a prior hearing of the issue of lack of interest.

In recognition, supposedly, of the legal effect of their admission that the contestants were the sole heirs of the decedent, with therefore a prima facie right to contest, respondents, over objections of the contestants, offered evidence that a prior will dated December 19, 1958, had been executed with due formality by the testator, who then possessed full competency to devise property by will, and that the will was not produced by undue influence. Appellants offered no evidence and the court thereafter adopted findings as follows: ‘ That on the 19th day of December, 1958, said Ralph C. Robinson duly made, executed and published a ‘Last Will and Testament,’ a copy of which is attached to the ‘Answer to Petition for Revocation of Probate of Will’ on file herein, reference to which is hereby made for full particulars; ... In the event that the Last Will and Testament of said Ralph C. Robinson, deceased, dated July 31st, 1959, heretofore admitted to probate herein, is not the Last Will and Testament of said decedent, then said Last Will and Testament dated the 19th day of December, 1958, is the Last Will and Testament of said decedent; ...”