Van Der Oef v. Van Der Oef

California Court of Appeal Jan 21, 1963 No. Civ. 26323Published

Before: Shinn

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Holding. The court held that a property settlement agreement between spouses, which focuses on the division of property and debts, does not constitute a waiver of a widow's right to a family allowance unless the intention to waive that right is expressed in clear and explicit language. Additionally, the court held that there is no statutory authority to award attorney's fees to a widow applying for a family allowance on her own behalf.

Issues

Whether a property settlement agreement effectively waived the widow's right to a family allowance.
Whether a widow is entitled to attorney's fees as part of a petition for a family allowance.

Disposition. reversed

Quotations verified verbatim against the opinion

“The agreement was clearly and exclusively one for the settlement of the ownership of the properties the parties owned or might thereafter acquire.”

“In order for an agreement to be effective as a waiver of widow’s right to a family allowance the intention to waive the right must be expressed in clear and express language”

“The right of a successful applicant for a family allowance to attorney’s fees is not provided for by statute.”

SHINN, P. J.

Grace S. Van Der Oef appeals from an order in probate denying her petition for a family allowance from the estate of her deceased husband. She sought an allowance of $350 per month for her support and $350 as attorneys’ fees “as a part of her support.”

Petitioner was living with and supported by her husband at the time of his death. There are ample assets in the estate to meet her demands and there is no one else who is entitled to a family allowance. After the hearing the court made findings from which it concluded as follows: “I. That the petitioner, Grace S. Van Der Oef, is not entitled to a family allowance inasmuch as she has adequate means for her maintenance from her own properties and estate. II. Under the terms of a Property Settlement Agreement heretofore entered into by and between the decedent and petitioner, Grace S. Van Der Oef, dated January 10, 1958, said petitioner, Grace S. Van Der Oef, waived any beneficial provisions under the laws of inheritance and defeated her claim for family support from decedent’s estate. III. That petitioner, Grace S. Van Der Oef, in her petition, prays for attorneys’ fees and same should not be allowed as a charge against decedent’s estate.”

Petitioner alleged in her petition that she did not have adequate estate of her own and was entitled to a reasonable allowance from the estate for her maintenance in accordance with her station and manner of life. This allegation was found to be untrue upon evidence that the petitioner had living expenses of $460 per month and owned numerous properties producing a gross income of $620.70 per month.

The fact that appellant enjoyed an income in excess of the amount of her living expenses and was possessed of capital of a substantial amount was not a sufficient reason for denying her petition outright.

(Estate of Secord,

84 Cal.App.2d 783 [192 P.2d 81] ;

Estate of Baldwin,

190 Cal.App.2d 78 [11 Cal.Rptr. 604].)

The finding that by the terms of the property settlement agreement with her husband appellant waived her right to

[157]

Van Der Oef v. Van Der Oef

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SHINN, P. J.

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