Estate of Ben-Ali
Filed 5/29/13, CERTIFIED FOR PUBLICATION (2013)
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Rule of Law:
Under California Probate Code § 6110, a presumption of due execution for a will requires proof of the genuineness of the signatures of the testator and both attesting witnesses. Proof of the testator's signature and only one of the two required witness signatures is insufficient to create a prima facie case of due execution.
Facts:
- Hassan Ben-Ali transferred ownership of an apartment building to his son, Taruk Joseph Ben-Ali, around 1993, possibly to protect it from the IRS.
- On August 3, 2002, Taruk married Wendelyn Wilburn, a union which his father, Hassan, opposed.
- A typewritten document, purported to be Taruk's will, was dated August 16, 2002, two weeks after his marriage.
- The purported will left Taruk's personal property to his unnamed "wife" and all other assets, including the apartment building, to his father, Hassan. It contained signatures purported to be from Taruk, Wilburn, and an illegible, unidentified second witness.
- In June 2004, Taruk disappeared. Hassan told family and friends, including Taruk's wife and mother, that Taruk had decided to leave and start a new life.
- Between 2004 and 2008, Hassan managed the apartment building, forged Taruk's signature on checks, and fraudulently refinanced the property for $600,000.
- In November 2008, Hassan confessed to his attorney, Ivan Golde, that Taruk had died of a drug overdose in 2004 and that he had concealed the body in a wall of the apartment building to avoid losing the property.
- On December 15, 2008, Hassan committed suicide. Police discovered Taruk's body two days later and found the purported will among Hassan's possessions.
Procedural Posture:
- After Taruk's death was discovered, his wife, Wendelyn Wilburn, filed a petition for letters of administration in Alameda County Superior Court (the probate court).
- Ivan Golde, named as alternate executor in a purported will, filed a competing petition to probate that will.
- Wilburn and Taruk's daughter, Brittany Desmond, filed contests challenging the validity of the purported will.
- The probate court conducted a trial and found the will was duly executed, admitted it to probate, and denied Wilburn's petition.
- Wilburn and Desmond (appellants) appealed the probate court's judgment to the California Court of Appeal, First Appellate District, with Golde as the respondent.
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Issue:
Is evidence of the genuineness of the testator's signature and the signature of only one of two subscribing witnesses sufficient to establish a will's due execution under Probate Code § 6110, subdivision (c)(1)?
Opinions:
Majority - Margulies, Acting P.J.
No. Evidence of the genuineness of the testator's signature and only one of two witnesses is insufficient to establish due execution. The court reasoned that the presumption of due execution, which can arise from a will with a complete attestation clause, is founded upon proof of the genuineness of the signatures of the testator and the witnesses. Here, the proponents of the will failed to produce any evidence authenticating the signature of the second, unidentified witness. The court distinguished precedent like Estate of Pitcairn, clarifying that such cases allow a presumption of due execution when witness signatures are proven genuine but the witnesses are unavailable or forgetful, not when a witness's signature itself is unproven. The court also addressed the alternative path to validation under § 6110(c)(2), which allows a will to be probated if the proponent proves by clear and convincing evidence that the testator intended it to be his will. The court found that no reasonable fact-finder could meet this high standard due to numerous suspicious circumstances, including Hassan's extensive fraud, the will's discovery among his possessions, and other inconsistencies, which cast substantial doubt on the document's authenticity.
Analysis:
This decision clarifies the evidentiary requirements for establishing a will's due execution in California. It firmly establishes that the presumption of due execution cannot cure a complete failure of proof regarding one of the two statutorily required witness signatures. The ruling reinforces that the harmless error doctrine of Probate Code § 6110(c)(2) is not a simple workaround for formal defects; it requires a high burden of proof ('clear and convincing evidence') that becomes especially difficult to meet in cases with suspicious facts. This case serves as a strong reminder to estate planners of the critical importance of adhering to execution formalities and cautions courts against validating wills where the circumstances surrounding their creation and discovery are tainted by fraud and deception.
