Metropolitan News-Enterprise


Friday, April 3, 2009


Page 1


C.A. Upholds Holographic Will Leaving Estate to Gay Group

Actual Notice of Proceedings Held Insufficient to Trigger Time Limits Where Petition Not Served


By a MetNews Staff Writer


Actual notice of intestate probate proceedings was insufficient to trigger time limitations on the introduction of a holographic will, the Third District Court of Appeal has ruled.

The panel Wednesday affirmed a lower court ruling awarding an estate worth more than $1 million to The Human Rights Campaign Inc., which bills itself as America’s largest civil rights organization working to achieve lesbian, gay, bisexual and transgender equality.

The court agreed with Butte Superior Court Judge Barbara L. Roberts that Probate Code Sec. 8226(c)’s time limits did not bar probate of the holographic will of Stanley Wade Kelly. The failure of Kelly’s father, who was the administrator of his estate and would have been entitled to all of it had Kelly died intestate, to mail the organization notice of the petition for letters of administration was held fatal to his limitations claim.

The Human Rights Campaign was the sole beneficiary of the holographic will Kelly sent to the group in 2003.

In March 2007, Kelly was found dead at his Paradise home at the age of 53. As his partner and his mother had pre-deceased him, his father E. George Kelly was his sole intestate heir.  

Letters of Administration

E. George Kelly petitioned for letters of administration later that month, claiming that his son had died intestate, and the probate court issued letters of administration with full authority to administer the estate in April 2007.

Discovering some payable on death accounts of which The Human Rights Campaign was designated the beneficiary, Kelly subsequently notified the organization of his son’s death and the group informed him of the holographic will.

The Human Rights Campaign filed a petition in December to admit the holographic will into probate, designate it as the beneficiary, and revoke the order appointing Kelly as administrator of his son’s estate.

As administrator of the estate, Kelly filed a report in January stating that his son had died intestate, leaving total assets of $1,404,735.30, and proposing that the entire estate be distributed to him.

A few days later, The Human Rights Campaign petitioned to probate the holographic will and filed an opposition to the report.

Petition Argued Untimely

Kelly argued that the organization’s petition was untimely because he had notified the group the estate was being administered as an intestate estate in May 2007, and The Human Rights Campaign had waited 225 days to file its petition to probate the will.

Sec. 8226(c) provides that if the proponent of a will has “received notice of a… petition for letters of administration,” the proponent must petition for probate of the will within 120 days of the order determining the decedent to have died intestate.

Roberts noted that Kelly, as administrator, had a superfiduciary duty “not to mislead the court, and…to make sure that the estate is probated and that it follows the wishes and the intent of the decedent.” 

She found that written notice on a Judicial Council form was required to trigger the time limits of Sec. 8226(c) and overruled Kelly’s objections to the petition to probate the will.

Writing for the appellate court, Justice Tani Cantil-Sakauye explained that the word “received” as used in the statute indicated that the proponent of the will must have actually been given notice.

In the context of the Probate Code, “notice” has a particular meaning, as it may have constitutional due process implications, and requires that notice be given by mail or personal delivery, she continued.

‘Notice’ Not ‘Knowledge’

By using “received notice,” in Sec. 8226(c) instead of “obtains knowledge,” as used elsewhere in the Probate Code, “the Legislature presumably meant something different than knowledge or awareness,” the justice reasoned, rejecting Kelly’s argument that The Human Rights Campaign’s actual knowledge of the probate proceedings, as illustrated by numerous communications with the group, was sufficient notice.

Justices George Nicholson and M. Kathleen Butz joined Cantil-Sakauye in her opinion.

Paradise attorney Shannon S. Thompson, who represented Kelly, predicted that Wednesday’s decision is “going to render Sec. 8226(c) inoperable because an administrator is going to have to know who has any document they claim to be a will and they have to receive a copy of the notice of petition.”

She explained “someone holding a will they don’t like can simply hide it…they could hold it for years and defeat the testator’s intent and nobody will know about the will.”

While Thompson acknowledged the decedent’s intent was that his estate would go to The Human Rights Campaign, she said “the group did absolutely nothing” to assert its interest. She contended that allowing the group to file the will 225 days after it received notice of the probate proceedings does not serve the purposes of the statute and creates “very bad law in California.”

James Scott Corporon of the Corporon Law Office represented The Human Rights Campaign; neither he  nor the group could be reached for comment.

The case is Estate of Kelly, 09 S.O.S. 1947.


Copyright 2009, Metropolitan News Company