Brown v. Saleski

California Court of Appeal Oct 24, 1990 No. No. D010146Published

Before: Huffman

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Holding. The court held that a surviving spouse who married the testator after the execution of a will is entitled to a share of the estate under Probate Code section 6560 because the will's general disinheritance clause failed to manifest a specific intent to exclude the after-acquired spouse.

Issues

Whether a general disinheritance clause in a pre-marriage will satisfies the requirements of Probate Code section 6561(a) to disinherit a surviving spouse.
Whether the evidence presented was sufficient to rebut the statutory presumption of revocation under Probate Code section 6560.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“Beatrice has simply not met her burden of proving Russell’s intent to disinherit Lila and rebut the presumption of revocation under section 6560.”

Opinion

HUFFMAN, ACTING P. J. Gilbert A. Brown, executor of the will of Lila Demos Shannon (also known as Lila King Demos), appeals on behalf of Lila’s estate from an order of the probate court denying her petition for determination of heirship as an omitted spouse under Probate Code1 section 6560 in the estate of Russell Donovan Shannon. We reverse.

Factual and Procedural Background

On January 25, 1974, Russell, an unmarried widower, executed his last will and testament, naming his daughter, Beatrice Marie Saleski, executrix and sole beneficiary. The will also provided his grandson, Donald Saleski, would inherit his estate in the event Beatrice did not survive him for “thirty (30) days” and contained a disinheritance clause which provided as follows: “Seventh: I have intentionally omitted all other living persons and relatives. If any devises, legatee, beneficiary under this Will, or any legal heir of [1151]mine, person or persons claiming under any of them, or other person or persons shall contest this Will or attack or seek to impair or invalidate any of its provisions or conspire with or voluntarily assist anyone attempting to do any of those things mentioned, in that event, I specifically disinherit such person or persons, [¶] If any Court finds that such person or persons are lawful heirs and entitled to participate in my estate, then in that event I bequeath each of them the sum of one ($1.00) dollar and no more.”

On April 27, 1986, Russell married Lila. On February 22, 1988, Russell died. He did not make any changes in his will after his marriage to Lila and before his death. His 1974 will was admitted to probate May 9, 1988, and Beatrice was named executrix of his estate.

On September 27, 1988, Lila filed a petition for family allowance (§ 6540), to set apart probate homestead (§ 6520) and or determination of entitlement to estate distribution as an omitted surviving spouse (§§ 1080, 6560). The court denied the petition for family allowance and Lila withdrew her petition to set apart probate homestead. The remaining issue of Lila’s entitlement to share in Russell’s estate was heard December 14, 1988, and taken under submission.

On March 24, 1989, the probate court issued its order denying Lila’s petition to determine heirship. She timely appealed only from this latter order.2

Brown v. Saleski

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