O'Dell v. McKenna

Opinion

GAUT, J. 1. Introduction

Patricia M. McKenna (McKenna), daughter of decedent Gladys N. Peterson, filed a will contest naming the executor, her sister Sandra Sue O’Dell (O’Dell). The trial court entered judgment against McKenna on April 13, 1998,1 finding that the decedent had testamentary capacity, consulted with her own lawyer regarding the provisions of the will, had properly executed the will, and had not been under undue influence from O’Dell or any other third party. That judgment ordered admission of the will. No appeal was filed from that decision and that judgment is final.

After entry of the judgment in the will contest, the trial court heard and granted O’Dell’s motion to enforce the no contest clause in the will of the decedent. McKenna appeals from that decision, arguing that Probate Code section 213072 exempts her from the effect of the no contest provision in her mother’s will.

The issue in this case is solely the scope of the exemption granted by section 21307 from a no contest provision in a will.

We conclude that McKenna’s action satisfied the requirements of section 21307 and therefore we reverse the trial court order enforcing the no contest provision.

[4342]. Facts

Gladys N. Peterson, the decedent (Decedent), died on February 15, 1996. Her will, dated February 9, 1996, listed her adult children: O’Dell, McKenna, and Harold W. Peterson, her son. The will left Decedent’s home and most of the tangible personal property to O’Dell. The residue of the estate was left one-third to McKenna and two-thirds to O’Dell. The will named O’Dell as executor.

The will contained the following provision:

“No Contest - Contestant Disinherited: If any beneficiary under this will in any manner, directly or indirectly, contests or attacks this will or any of its provisions, any share or interest in my estate given to that contesting beneficiary under this will is revoked and shall be disposed of in the same manner provided herein as if that contesting beneficiary had predeceased me without leaving issue.”

O’Dell filed the petition for probate of the will and for letters testamentary on March 4, 1996. On May 6, 1996, McKenna filed objections to probate of the will under section 8250. The trial court heard testimony on the objections and on April 13, 1998, rendered its judgment rejecting the objections. Thereafter, at O’Dell’s request, the trial court ordered enforcement of the no contest provisions of the Decedent’s will.