Szekely v. Los Angeles County Physician's Aid Ass'n

California Court of Appeal Apr 4, 1980 No. Civ. No. 57180Published

Before: Marshall

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Holding. A general disinheritance clause in a will that explicitly omits "heirs" is sufficient to demonstrate a testator's intent to disinherit a pretermitted grandchild, even if the grandchild is not specifically named. Such a clause effectively bars a claim of pretermission regardless of whether the testator also incorrectly stated they had no children.

Issues

Whether a general disinheritance clause omitting "heirs" is sufficient to disinherit a grandchild not specifically named in the will.
Whether a testator's declaration that they have no children prevents the operation of a general disinheritance clause regarding a grandchild.

Disposition. reversed

Quotations verified verbatim against the opinion

“We conclude that the use of the term, “heir,” in the disinheritance clause adequately expresses on the face of the will decedent’s intention to cut off inheritance by Carol.”

“The law is clear, therefore, that a disinheritance clause expressly omitting heirs indicates an intent to bar children or grandchildren and such clause overcomes any statement by the testator that he had no such relatives.”

Opinion

MARSHALL, J.* Nature of the Case

This is an appeal from a judgment of the trial court which adjudged a daughter of an adopted son of the decedent to be the pretermitted heir of decedent. The appeal is based on the judgment roll, neither party having requested the reporter’s transcript or a settled statement.

Facts

Carol Jean Szekely (hereafter referred to as Carol), daughter of Theodore Laszlo Szekely, an adopted son of Joseph Szekely (hereafter referred to as Joseph), who died before Joseph, filed a petition to determine her entitlement to distribution of Joseph’s estate, he having died on July 25, 1977.

Joseph executed a will wherein he left 16-2/3ds of his estate to Catherine Elizabeth Milch, daughter of a son of his cousin; 16-2/3ds to another daughter of a son of the cousin, Judith Andrea Milch, both in trust, and 16-2/3ds to Mrs. Agi Kovats, granddaughter of his deceased [239]sister. The remaining half was to go to the Los Angeles County Physician’s Aid Association.

Joseph declared in his will that he was not “currently” married, and “that I have never been the father of any child.” In paragraph “Eighth,” he stated that “Except as otherwise provided in this Will, I have intentionally with full knowledge omitted to provide for my heirs. If any legal heir of mine or any devisee, legatee or beneficiary under this Will shall contest it or any of its parts or provisions, then in that event I give to each such person the sum of $1.00 only, and any share as interest given to that person shall be revoked and augment proportionately the shares of such of the beneficiaries hereunder as shall not have joined or participated in said contest.”

The will makes no specific reference to either the adopted son or the son’s daughter, Carol.

Carol petitioned the probate court to establish her right to the entire estate as a pretermitted heir—a granddaughter—under Probate Code section 90, which directs distribution to grandchildren omitted from the will “unless it appears from the will that such omission was intentional.” Carol’s petition was granted and judgment was entered to that effect. Catherine, Judith and the Los Angeles County Physician’s Aid Association have appealed.

Szekely v. Los Angeles County Physician's Aid Ass'n

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