McLeland v. Clark

California Court of Appeal Sep 24, 1931 No. Docket No. 7901.Published

Before: York

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Holding. The court held that the six-month statute of limitations for contesting a will, as amended, applies to petitions filed after the amendment's effective date, provided the contestant is allowed the full six-month period following that effective date to initiate the action.

Issues

Whether the one-year or six-month statute of limitations applies to a petition to revoke probate filed after the amendment of section 1327 of the Code of Civil Procedure.
Whether the contestant's right to contest the will was barred by failing to file within six months of the amendment's effective date.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“The whole period contemplated by the new law must lapse, to bar the action.”

“it would seem that when six months had elapsed after the effective date of the amendment, appellant’s right to contest the probate of the will here involved was barred.”

YORK, J.

This is an appeal from an order sustaining demurrer without leave to amend to the petition of contestant to revoke probate of the will of decedent, and from the judgment of dismissal entered pursuant thereto.

The will of decedent was admitted to probate and letters testamentary issued on April 8, 1929. On that date, section 1327 of the Code of Civil Procedure provided that “any interested person may at any time

within one year

after probate file a petition to revoke probate of the will”. An amendment to this section (Stats. 1929, p. 860), which became effective on August 14, 1929, cut down to six months the time within which a contest could be initiated. On February 25, 1930, the contestant, alleging that she was a pretermitted heir of the decedent, filed her petition to revoke the probate of the will. A demurrer that the petition was barred by section 1327 was sustained without leave

[65]

to amend, and contestant appeals from such order and from the judgment of dismissal entered pursuant thereto.

Appellant maintains that the court committed error in sustaining the demurrer for the reason that the law, as it stood at the time the will was admitted to probate, is the governing factor, and that the amendment applies only to wills probated after its effective date. In other words, that appellant had one year from the date the will was probated —April 8, 1929—within which to commence her action to revoke it. Respondents, on the other hand, contend that the law which was in force at the time the petition to revoke probate was filed, applies; and that appellant having failed to commence her contest within six months after the effective date of the amendment, the demurrer was properly sustained. In support of their contention, respondents cite the case of

In re Whiting’s Estate,

110 Cal. App. 399 [294 Pac. 502], In that case the contest was filed two days short of one year after the will was admitted to probate, but within two months and fourteen days after the amendment to section 1327,

supra,

McLeland v. Clark

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YORK, J.

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