Metropolitan News-Enterprise


Thursday, March 22, 2012


Page 1


Supreme Court to Hear Dispute Over Multimillion Dollar Estate

Court of Appeal Held Testator’s Words, Not His Intent, to Be Dispositive




The California Supreme Court yesterday agreed to decide whether the estranged nephews of a local man who died in 2007 were entitled to inherit his $5 million estate, contrary to what the Court of Appeal acknowledged was the testator’s intent.

The justices, at their weekly conference in San Francisco, voted 5-2 to grant review in Estate of Duke, B227954. Chief Justice Tani Cantil-Sakauye was joined by Justices Ming Chin, Marvin Baxter, Carol Corrigan and Goodwin Liu in voting to hear the case, with Justices Kathryn M. Werdegar and Joyce L. Kennard voting to allow the lower court decision to stand.

Div. Four of this district’s Court of Appeal ruled in December that Irving Duke’s holographic will failed to fulfill his purported intent to leave his assets to the Jewish National Fund and City of Hope. The ultimate disposition of the property in favor of Robert and Seymour Radin was mandated by the unambiguous failure on the face of the will to include a testamentary provision for the circumstances of Duke’s death, the panel said.

The high court, however, took Justice Steven Suzukawa up on this suggestion:

“Perhaps it is time for our Supreme Court to consider whether there are cases where deeds speak louder than words when evaluating an individual’s testamentary intent.”

Holographic Will

Duke had prepared his holographic will in 1984, in which he purported to devise all of his property to his wife, with the exception of “the sum of One dollar ($1.00) and no more” left to his brother.

If he and his wife were to “die at the same moment,” Duke provided, “my estate is to be equally divided” with one-half donated to the City of Hope in the name of his sister, and the other half given to the Jewish National Fund to plant trees in Israel in the names of his parents.

Duke indicated he had intentionally omitted all other persons, whether heirs or otherwise, not specifically mentioned, and specifically disinherited all persons claiming to be his heirs.

His wife died in 2002, and Duke died five years later. After his death, a Los Angeles deputy public administrator found his will in his safe deposit box at his bank, and the will was admitted to probate. 

The Radins, the sons of Duke’s sister and his sole surviving relatives, subsequently filed a petition for determination of entitlement to estate distribution and moved for summary judgment.

They argued that the charitable organizations were only eligible to take if Irving and his wife simultaneously met their demise. The Radins contended that the will did not address distribution of the estate where Duke survived his wife, as had occurred, and so the result was a complete intestacy under which the estate passed to them.

Testamentary Intent

The charities opposed the motion, asserting that the trial court should consider extrinsic evidence of Irving’s testamentary intent, which included his statement to a City of Hope representative that he was “leaving his estate to City of Hope and to Jewish National Fund.”

Los Angeles Superior Court Judge Mitchell L. Beckloff found that the will was not ambiguous, and therefore, that the proffered extrinsic evidence was inadmissible. He then ordered entry of judgment in favor of the Radins.

Writing for the appellate court, Suzukawa agreed that no ambiguity existed in the will and said the finding of intestacy was inescapable since a court “cannot engage in conjecture as to what the testator may have intended but failed to express in order to avoid a conclusion of intestacy.”

While a “more flexible” rule regarding admission of extrinsic evidence of testamentary intent might be advisable, the justice said, the state high court’s precedent does not allow it.

Other Action

In other conference action, the Supreme Court:

Unanimously declined to hear a challenge to the revised environmental impact report for mixed-use Phase II of the huge Playa Vista development south of Marina del Rey.

Opponents of the project contended that the REIR by the City of Los Angeles failed to adequately discuss the impact of the project’s contributions to global climate change.

In an opinion filed last Nov. 9 and certified a month later for publication, Div. Three affirmed a judgment and order by Los Angeles Superior Court Judge John Torribio approving the revised EIR for the project, which is also known as The Village.

The city approved a final EIR for Phase II in April 2004, which was challenged by the City of Santa Monica, along with the Ballona Wetlands Land Trust, Anthony Morales, and Surfrider Foundation. Morales is chief of the Gabrielino/Tongva Tribal Council of San Gabriel, and has accused the developer of insensitivity in building on Native American burial grounds.

The challenge was initially rejected in Superior Court, but the Court of Appeal reversed. While rejecting a number of arguments by the petitioners, it concluded that the EIR’s land use analysis was misleading in certain respects, that the document should have discussed preservation as a means of mitigating archeological impacts, and that it failed to adequately analyze wastewater impacts.

On remand, Torribio ordered that the petitions be granted in part and denied in part, and granted a writ of mandate requiring the city to revise the EIR. In addition to addressing the issues identified by the Court of Appeal, the city in 2010 revised the report’s executive summary and prepared a new section discussing the impacts of global climate change, pursuant to AB 32, which had been enacted subsequent to the certification of the original EIR.

Torribio upheld the revised EIR, and the Court of Appeal affirmed.

“We conclude that the revised EIR adequately discusses preservation in place and the impacts of sea level rise resulting from global climate change,” Justice Walter Croskey wrote.

The case is Ballona Wetlands Land Trust v. City of Los Angeles (Playa Capital Company, LLC), B231965.  

Ordered the disbarment of Mervyn H. Wolf, a longtime personal injury, workers’ compensation, and employment lawyer in the San Fernando Valley.

Wolf, who was admitted in 1968 and has a record of public discipline going back to 1995, pled no contest to misdemeanor charges in 2010 and was sentenced to 200 hours of community service and three years of summary probation.

Wolf was accused of having taken settlement funds from his clients in multiple personal injury, workers’ compensation, and wrongful termination cases between June 2003 and June 2004. He allegedly deposited settlement checks into his client trust account, and then embezzled the funds.

He was placed on involuntary inactive status in 2006 and entered the State Bar’s Alternative Discipline Program, citing mental health issues.

His plea in the criminal case enabled him to avoid trial on five felony counts, but the State Bar Court placed him on interim suspension in November 2010 because one of the offenses was grand theft, which necessarily involves moral turpitude. That conviction is now final, and the Supreme Court yesterday unanimously denied review of Wolf’s summary disbarment. 


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