Hants v. Borderre

Opinion

EVANS, J. Velma Church Clark (decedent) died testate on November 6, 1981. Her will was admitted to probate and on December 1, 1981, Jack Burford (Burford) was appointed executor. Letters testamentary issued the following day.

The crux of this appeal involves the fifth, sixth, and seventh paragraphs of the decedent’s will. Each paragraph granted claimant and respondent Jean Borderre a testamentary option to purchase certain real property. Although the will specified the purchase price for each parcel, it was silent as to the method and time for the exercise of the options.

In December 1981, Burford convened a meeting of the potential heirs and devisees, which was attended by Borderre. At the meeting the options granted to Borderre under the terms of the will were discussed. At that time, Borderre indicated he had not decided whether he would exercise the options.

[896]In March 1982, Burford resigned as executor and in early April 1982, David Hants (Hants), decedent’s grandson and a residuary devisee under the will, was appointed executor.1 Later that month, Hants contacted Borderre to discuss Borderre’s intentions concerning the options. Because of potential tax consequences to the estate, Hants suggested Borderre consider the possibility of leasing the property in lieu of exercising the options to purchase. At the conclusion of the meeting, Borderre again indicated that he still had not decided whether he would purchase the property.

On June 18, 1982, more than six months after the issuance of letters testamentary, Borderre advised Hants of his decision to exercise the options. Hants informed Borderre the exercise of the options was not timely, as the six-month period provided in Probate Code section 854 for the exercise of an option had expired.

In February 1983, Hants filed a petition for instructions seeking a determination of the right, if any, of Borderre to exercise the options granted him under the will. Borderre filed objections to the petition and also filed a petition for preliminary distribution. Objections to Borderre’s petition were filed by all of the residuary devisees and beneficiaries except Hants. Following hearing and argument, the trial court held that although Borderre had not complied with the procedures set forth in Probate Code section 854, that failure did not extinguish the right to exercise the options and granted the petition for partial distribution and ordered Hants to take such steps as were necessary to carry out the conveyance authorized by the options. This appeal ensued.