Mack v. Bank of America

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

Before: Ault

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Holding. The court held that contestants lacked standing to challenge a will because they failed to make a prima facie showing that a prior will, upon which their interest relied, could be admitted to probate as a lost or destroyed will under Probate Code section 350. The court further held that the trial court correctly determined it lacked jurisdiction to consider additional evidence after a notice of appeal had been filed.

Issues

Whether contestants established standing as 'interested persons' to contest a will based on a prior, missing will.
Whether the requirement that a lost or destroyed will be in existence at the time of the testator's death refers to physical or legal existence.
Whether the trial court retained jurisdiction to consider additional evidence after the filing of a notice of appeal.

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.””

“The evidence before the court on the motion for summary judgment demonstrated the 1963 will could not be probated and that contestants were left without standing to contest the subsequent will.”

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.

Respondents moved for summary judgment, basing their motion in part on Macks’ answers to the written interrogatories and in part on the declaration of Richard W. Fleming, a trust officer of the Bank of America. Mr. Fleming’s declaration established the bank had custody of decedent’s 1963 will from October 31, 1963, until May 6, 1966, when it was delivered by the bank to Mrs. Lane at her request. The declaration incorporated a receipt for the will signed by the decedent.

The trial court granted the motion for summary judgment and entered judgment dismissing the contest on April 16, 1969. The Macks filed notice of appeal on May 22, 1969. The following day, their motion for an order allowing additional evidence and for entry of judgment in favor of contestants was denied on the ground the court lacked jurisdiction.

Only an “interested person” may contest a will before or after probate. (Prob. Code, §§ 370, 380.) An “interested person” is one who has “. . . such a pecuniary interest in the devolution of the testator’s estate, as would be impaired or defeated by the probate of a will or be benefited by the setting aside of the will.” (Estate of Collins, 268 Cal.App.2d 86, 91 [73 Cal.Rptr. 599].) (See also Estate of Robinson, 211 Cal.App.2d 556, 558 [27 Cal.Rptr. 441]; Estate of Arbuckle, 98 Cal.App.2d 562, 566 [220 P.2d 950, 23 A.L.R.2d 372].)

Mack v. Bank of America

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