Tuesday, April 22, 2014
Court of Appeal Rejects Challenge to Codicil Replacing Executor
Panel Says Person Named to Administer Estate Lacks Standing to Contest Being Ousted
By KENNETH OFGANG, Staff Writer
A person who was named as an executor in a will cannot contest a codicil by which the testator named someone else to that position, the Court of Appeal for this district ruled yesterday.
Div. Five rejected a challenge to the codicil executed by Sonia Sobol, a landlord who died in 2012 at the age of 89, leaving an estate worth about $22 million. She was predeceased by her husband, and by her only child, both of whom died prior to the execution of her 2010 will.
That will left all of Sobol’s property to a trust, created the same day the will was executed. Sobol was named trustee and primary beneficiary of the trust, which upon her death was to make gifts of $250,000 and an apartment in Israel to specified beneficiaries, with the remainder going to a foundation created to support medical research and a hospital in Israel.
The will named Woodland Hills attorney Jay Rose as executor and as successor trustee, following Sobol. But less than three months before her death, Sobol executed a codicil revoking Rose’s nomination as executor and naming three co-executors, including Los Angeles attorney Terry Shaylin. The other co-executors were a physician who had worked with Sobol’s late son and a longtime business associate.
In support of the probate petition, Shaylin declared that she had represented Sobol and an affiliated company in a bankruptcy reorganization that was still pending at the time of Sobol’s death, and had also represented the affiliated company in civil litigation. She said Sobol had asked her to prepare documentation naming her and the two others as co-executors and co-trustees in place of Rose.
The other two women filed declarations recounting their conversations with Sobol and her requests that they serve as her trustees and executors.
Rose objected to the petition on grounds of lack of testamentary capacity, undue influence and conflict of interest on the part of Shaylin, and improper execution of the codicil. The objection was accompanied by declarations from attorney Steven R. Friedman and Sobol’s nephew, Fred Maidenberg.
Friedman recounted a meeting with Sobol six months before her death, in which she appeared physically weak and “unclear in thought.” She was unable, he said, to discuss a number of events related to her interests, including a judgment of nearly $10 million against her as a result of a worker being injured on a property she owned in West Hollywood.
Sobol, he said, urged him to discuss the matters with her nephew, whom she called “Freddy.”
Maidenberg explained in his declaration that he was a certified public accountant and had prepared Sobol’s, and her late husband’s, tax returns and given them business advice for years. He did not charge Sobol fees, he said, but in April 2012—two months before her meeting with Friedman—she gave him $25,000 as a gift.
He confirmed Friedman’s account of his aunt being physically weak and in a poor mental state in June 2012. He said he had his last conversation with her in August or September—she died in December of that year—and that she made all sorts of strange accusations about his trying to take her money and have her institutionalized, and said she was going to hire a new accountant.
Rose said in his own declaration that he had represented Sobol in a 2008 matter, an attack on her husband’s trust, and had drafted the 2010 will and trust document at her request, and that she also gave him a power of attorney regarding healthcare decisions.
The co-executors demurred on the ground of lack of standing. In April of last year, Los Angeles Superior Court Judge Reva Goetz sustained the demurrers. She also ruled that an attempt at joinder by Maidenberg was improper, “even if he has standing,” and appointed the co-executors as set forth in the codicil.
Presiding Justice Paul A. Turner said the trial judge was correct. Rose had no interest in the estate, and therefore could raise a contest, the jurist said.
Maidenberg, he added, did not contest on appeal the judge’s ruling regarding joinder, and in any event lacked standing because he was not named in the will or trust.
The contention that Rose’s status as the executor in the original will made him an “interested person” with standing under Probate Code §48 “has no merit,” Turner said.
Lack of Standing
The presiding justice acknowledged that two prior cases holding that a replaced executor lacked standing differed from the present case because the codicils in those cases changed dispositive provisions, whereas Sobol merely replaced her executor. But other cases are not so limited, he said.
Turner further noted that there was no evidence that the executors acted or intended to act in a manner contrary to Sobol’s wishes, and that the attorney general—whose duties include protection of charitable trusts—had been served with the pleadings in the case and was free to act on the foundation’s behalf.
The probate court, he said, is also free to address the question of undue influence on its own motion. Whether it does so, he said, is “in the hands of the probate court and the Attorney General.”
The case is In re Sobol, 14 S.O.S. 1915.
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