Bolen v. Zetterberg

Opinion

FLEMING, Acting P. J. John I. Bolen, as conservator of the estate and person of Florence H. Du Nah, appeals the dismissal of a citation he caused to be issued upon the law firm of Zetterberg & Zetterberg for an order directing the firm to deliver to him the will and related documents of the conservatee Du Nah. Bolen also appeals the probate court’s award of attorneys fees as “necessary expenses.” (Prob. Code, § 613.) The appeals were consolidated by order of this court.

Since May 1978 John Bolen has been the conservator of the person and the estate of Florence H. Du Nah. In August 1978 Du Nah asked Stephen Zetterberg, an attorney, to prepare a will for her. After speaking to Du Nah on two separate occasions, Zetterberg concluded she was capable of making a will, and on August 17 he drafted the requested will and related documents. Du Nah then executed the will and instructed Zetterberg to hold it for safekeeping. Shortly thereafter the Zetterberg firm sent a bill for its services to conservator Bolen in care of his attorney, William Fox. Fox responded by letter dated October 17 demanding on behalf of the conservator that Zetterberg deliver the will to him (Fox). Additional correspondence followed, which culminated in a letter to Zetterberg, drafted on Fox’s stationery but “read to” and signed by Du Nah, informing Zetterberg that she (Du Nah) had no recollection of authorizing him to prepare a will for her, that he was a [520]complete stranger to her, and that she wanted him to deliver to Bolen or Fox any document he had assertedly prepared for her. In a letter dated October 27 Zetterberg replied that he was holding the will for safekeeping in accordance with Du Nah’s instructions, and that, although he recognized that ordinarily the maker of a will could request its return, the correspondence he had received indicated clearly that Du Nah was not competent to make such a request. Zetterberg added that although he would be happy to be relieved of the responsibility for the will’s safekeeping, he believed that he was obligated as its custodian to hold it pending the death of the conservatee, at which time he would deliver it to the court.

Bolen then petitioned the court for a citation directing the Zetterberg firm to show cause why the will and related instruments prepared by Zetterberg should not be delivered to him as Du Nah’s conservator. (Prob. Code, § 1903.) The superior court, sitting in probate, without determining whether Du Nah had testamentary capacity when she executed the subject will, found, inter alia, (1) that Du Nah, the conservatee, was not then competent to request the return of the will, (2) that Bolen, the conservator, had no right to its possession because the will was not property belonging to the conservatee’s estate, and (3) that Zetterberg would be violating the confidence of his client Du Nah if he were to give up the will. The court thereupon concluded that Zetterberg was under a duty to retain the will, and that the court had no jurisdiction to order the firm to deliver the document to either the conservatee, who was then incompetent, or the conservator, who had no right to its possession. Accordingly, the court dismissed the citation.