Anderson v. Tinsley

Opinion

GILBERT, P. J. In probate matters, justice can be illusive if not absent. In Estate of Shellenbarger (2008) 169 Cal.App.4th 894 [86 Cal.Rptr.3d 862], we acknowledged our obligation to follow the law of succession even when we believed to do so was unfair. We had no choice in light of our Supreme Court’s admonition that it is vain for the courts to argue against the injustice of statutory rules governing the law of succession. (Estate of De Cigaran (1907) 150 Cal. 682, 688 [89 P. 833].)

But in the case we decide here, the Probate Code itself gives the probate judge discretion to reach a fair result. A good deed finds its reward, not its punishment.

[905]Carol Anderson, trustee of the Gertrude Will Revocable Trust, appeals an order determining that Gertrude Will is not an omitted spouse in the trust or estate of decedent Ted Will. (Estate of Gagnier (1993) 21 Cal.App.4th 124, 128-129 [26 Cal.Rptr.2d 128]; Prob. Code, § 140 et seq.)1 We affirm.

FACTS AND PROCEDURAL HISTORY2

On April 13, 1980, Ted Will executed a will and trust, declaring that he was divorced and had five children, including respondent Lori Tinsley. Many years later, Ted became reacquainted with his high school classmate, Gertrude Fochs, a widow with five adult children. Ted and Gertrude later lived together in his Ventura home. Ted had acquired substantial real properties in Ventura and elsewhere. Gertrude assisted him with accountings of income from his real properties and stock holdings.

Ted, then 81 years old, and Gertrude, then 80 years old, decided to marry. Gertrude suffered from lung cancer, and Ted intended to obtain medical insurance and treatment for her. They contemplated that she would not survive Ted due to her illness.

On October 1, 2003, Ted and Gertrude visited Grover Howe, Ted’s longtime attorney. Ted presented Gertrude with a prenuptial agreement drafted by another attorney. The agreement provided that Ted and Gertrude waived their respective community property interests and inheritance rights in each other’s property. It also provided that the separate property of each party would pass to his or her children, but that Gertrude could live in Ted’s home for five years rent free after his death. The agreement contained schedules listing the assets of each party. Gertrude later described the prenuptial agreement as “he keeps his assets, I keep mine.”