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C.A. Directs Admission of Will to Probate Lacking Signatures of Two Witnesses
By a MetNews Staff Writer
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The Court of Appeal for this district has held that a typed and signed document making a testamentary disposition of the writer’s assets was intended to be a will and must be admitted to probate even though it does not bear the signatures of two witnesses, thus providing an example of the rare circumstance under which an unwitnessed instrument will be so admitted under legislation effective Jan. 1, 2009.
Prior to that legislation, the two-witness requirement was dispensed with only where the will was a holographic one. However, under an amendment, Probate Code §6110(c)(2) now provides that where there are no subscribing witnesses, the will is valid “if the proponent of the will establishes by clear and convincing evidence that, at the time the testator signed the will, the testator intended the will to constitute the testator’s will.”
Los Angeles Superior Court Judge Jonathan L. Rosenbloom had declined to admit to probate an Aug. 16, 2002 statement on office stationery in which the testator, Melanie Berger, who was then a male but wore female clothing, signed, leaving all of his property to his fiancée, Maria Quinn. Berger underwent a sex-change operation a few days later; the two women continued dating for six months, but then broke off their relationship.
2020 Death
Berger died in 2020 and Maria Quinn, now Maria Coronado, filed a petition seeking to have the 2002 letter admitted to probate. That was opposed by Berger’s estranged sister, Glee Berger who claimed the estate under intestate succession.
Rosenbloom said, in explaining his denial of letters testamentary: “I think the very fact that I still have doubts about the letter and its context speaks to the clear and convincing evidence standard found in Probate Code § 6110(c)(2)....Further, by virtue of the fact that the document is not witnessed, under case law, interpreting Section 6110, I believe we are compelled to look at extrinsic evidence. And that evidence creates further doubt, and similarly does not meet the clear and convincing evidence standard, showing that Melanie Berger intended for this letter to be her will.” In her appellate brief, the sister, who apparently had no contact with the decedent over the preceding 18-year period, pointed out:
“(1) the Letter was allegedly formed when Melanie had been in a four (4) month relationship with Coronado…; (2) Coronado did not offer any witnesses who knew anything about the Letter or the circumstances of its execution…; (3) Coronado testified that she never spoke about the Letter or the testamentary wishes with Decedent, despite being engaged to her…; (4) Coronado did not provide evidence to support that Decedent spoke about the Letter with anyone between 2002 and its discovery after her passing in 2020…; (5) Coronado did not offer evidence as to how the typed Letter had been prepared, who had drafted it, or who Decedent might have consulted about its terms or phrasing; (6) although Melanie had a folder in her desk marked ‘important documents,’ the Letter was found under a stack of loose-leaf papers in her desk drawer.”
The sister added:
“Coronado did not produce any witnesses who either transcribed the Letter for Decedent, saw Decedent draft the Letter, or could testify that Decedent acknowledged the Letter as her will.”
Hoffstadt’s Opinion
In his opinion, filed Friday, reversing Rosenbloom’s order, Justice Brian M. Hoffstadt of Div. Two, said:
“[W]e can reverse only if we conclude that the evidence below as a matter of law compels a finding by clear and convincing evidence that Melanie intended her August 16, 2002, letter to be testamentary. This is a very heavy burden, but it is not insurmountable.”
He declared:
“This is one of those rare cases where this very heavy burden has been met.”
Evidence Recited
Hoffstadt explained:
“Taken together, the words in the letter itself and the circumstances surrounding its creation and execution compel the finding, as a matter of law, that Melanie intended her letter to have testamentary effect. The substance of the letter names Maria as Melanie’s ‘sole beneficiary in the event of [her] death’ as well as the person who has ‘full discretion’ to dispose of ‘all [of her] personal possessions and property’; lists four of Melanie’s most significant assets (namely, her house, her retirement account, her car, and her checking account); and even contemplates that ‘inquiring family members’ might seek some of her belongings, but leaves it to Maria to decide which ‘personal belongings’ to give them.”
The jurist continued:
“The format of the letter also evinces a level of formality consistent with a document meant to have enduring effect: Melanie drafted the letter on her work stationery; recited her full name, address, and social security number; addressed it ‘[t]o whom it may concern’; started the letter with a recitation of her ‘sound mind and excellent health’; and concluded the letter with a recitation of the date and location of signing as well as her signature.
“The surrounding circumstances further—and, in our view, conclusively—confirm Melanie’s intent ‘to make a revocable disposition of [her] property to take effect upon [her] death.’…Melanie told Maria—the ‘sole beneficiary’ and effective executor of the will—that Melanie was executing a ‘will’ and Melanie did so in an email sent on the very same day she created and executed the letter.”
Berger had placed a copy of the document on a chair, for Quinn to find, but that copy had been lost. However, a copy Berger had retained was come upon by a pastor in going through Berger’s effects.
Hoffstadt found significance in that, declaring that Berger “kept the original for herself in a place where it was likely to be found—and was, indeed, found—decades later.”
He did not address the sister’s point that the document was not in a folder containing “important documents.”
Hoffstadt who, typically, is meticulous in numbering the issues he addresses and precedes the discussion of the final issue with the word, “lastly,” wrote:
“Lastly, the sister at oral argument asserted that there was no evidence presented regarding Melanie’s competency to execute a will or whether she was under any undue influence at the time she wrote the letter.
“These assertions are irrelevant to the question of whether the document was intended as a will, which is the only question before us.
“Whether it is enforceable as a will is a distinct and separate issue not presently before us.”
The case is Estate of Berger, 2023 S.O.S. 1795.
Copyright 2023, Metropolitan News Company