Ford v. Groscup

DRAPER, P. J. By this heirship proceeding (Prob. Code, § 1080), petitioner sought determination that he and his three brothers are pretermitted heirs. Summary judgment dismissing the petition was granted, and he appeals.

The will was prepared by an attorney. After declaring that testator is a widower who has three children, Leslie, Porter and Edith, it provides: “I bequeath all of my estate to my son Leslie F. Groseup, except for the provision of $1.00 to Porter V. Groseup and $1.00 to Edith A. Ford;” and “I declare except as otherwise provided in this Will I have intentionally omitted to provide for any of my heirs living at the time of my death. ’ ’ Testator had a fourth child, Thelma, who died in 1959, some four years before this will was executed. She left four children, petitioner and his three brothers.

Respondent filed his written statement of interest and moved for summary judgment, supported by affidavit of his attorney, who averred that he was a witness to the will, incorporated a copy thereof, and stated that he knew of no factual issues between the parties. Petitioner’s eounteraffidavit averred that: testator had high regard for his daughter Thelma and knew of her death; petitioner was “on very friendly terms” with testator and visited him frequently; petitioner’s brothers also were friendly with testator and “visited him on occasion”; in the month in which the will was executed testator’s “eyesight was very poor and . . . even with glasses he was unable to read documents . . .; his hearing was also very poor; ... he used a hearing aid, but complained that it made so much noise that it bothered him so he turned it down low or off.” Also alleged were conclusions that testator had no reason or wish to omit petitioner and his brothers from his will. The trial court determined that the affidavits showed no fact issues for trial.

If a will omits provision for a child or grandchild of the testator, the heir thus omitted takes the share he would have received in event of intestacy “unless it appears from the will that such omission was intentional” (Prob. Code, [537]§90). Appellant asserts that under the rule of a 1960 decision (Estate of Torregano, 54 Cal.2d 234 [5 Cal.Rptr. 137, 352 P.2d 505, 88 A.L.R.2d 597]) his affidavit raises fact issues which require trial. We cannot agree.

Torregano does make clear that intent to omit may be shown only by the will, while extrinsic evidence is admissible at the instance of the omitted heir to show that the omission was unintended (54 Cal.2d 243-9). The trial court recognized that rule, and considered all the facts alleged in the counteraffidavit. Of course, if those allegations raise any fact issue, directly or by reasonable inference, trial is required, and the judgment must be reversed (Estate of Torregano, supra, Garlock v. Cole, 199 Cal.App.2d 11 [18 Cal.Rptr. 393]).