Metropolitan News-Enterprise


Thursday, September 10, 2009


Page 1


C.A. Orders Hearing on Survivor Issue in Inheritance Dispute

Disinherited Sons’ Ability to Take Father’s Share of Grandmother’s Estate Contested


By SHERRI M. OKAMOTO, Staff Writer


The disinherited sons of a Trinity County man whose body was discovered the same day as his mother’s death are entitled to an evidentiary hearing to determine if their father had predeceased their grandmother, the First District Court of Appeal has ruled.

Div. Two reversed San Mateo Superior Court Judge Rosemary Pfeiffer’s order denying Jason and Ean Lensch’s petition to determine survival in an Aug. 31 decision, which was ordered published yesterday,

Jason and Ean Lensch’s paternal grandmother, Gladys Lensch, passed away in March 2008 at the age of 98. She left a three-sentence holographic will in which she directed her estate be equally divided between her two children to provide for the well-being of her four grandchildren.

Eleven hours after her death, Gladys Lensch’s son, Jay Lensch, was found dead from a self-inflicted gunshot. The time of death on his death certificate was recorded as the time his body was found.

Sons Disinherited

Jay Lensch left a 10-page handwritten will, with a four-page addendum, which left nothing to his sons.

The sons subsequently petitioned to determine survival, arguing that the order of death could not be determined by clear and convincing evidence and so they should inherit under their grandmother’s will in place of their father.

They asserted that the deputy coroner who had investigated their father’s death told them and their attorney that Jay Lensch’s death could have occurred up to two days before the date entered on the death certificate, but that it was customary to use the time of discovery as the time of death in cases such as this.

Executors’ Opposition

The executor of Jay Lensch’s estate opposed the petition, arguing that survival was not required for Jay Lensch to take under his mother’s will. He further contended that death certificates are proof of time of death and that Jason and Ean Lensch’s petition was therefore premised on “inadmissible opinions, speculation, and hearsay.”

Pfeiffer  agreed that survival was not required under Gladys Lensch’s will, but based upon Jay Lensch’s death certificate, Pfeiffer determined that Gladys Lensch had predeceased her son and that no further evidentiary hearing was required.

Writing for the appellate court, Justice Paul R. Haerle explained that absent a survival requirement, Gladys Lensch’s gift to her son would fail if he had predeceased her.

As the motion for a survival determination was contested, Haerle said the trial court had abused its discretion in proceeding based solely on the submitted declarations and verified pleadings, pursuant to Estate of Bennett (2008) 163 Cal.App.4th 1303

Joined by Justices James R. Lambden and James A. Richman, Haerle directed the matter remanded for an evidentiary hearing to be conducted.

Haerle also clarified that a clear-and-convincing standard would apply to the question of survivorship and that the executor would bear the burden of proof.

The case is Estate of Lensch, A123296.


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