Estate of Tolman
104 Cal. Rptr. 3d 924, 181 Cal. App. 4th 1433 (2010)
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Rule of Law:
A general disinheritance clause that excludes unmentioned heirs is insufficient to express the 'contrary intention' required to overcome California's anti-lapse statute, which allows the issue of a predeceased kindred beneficiary to take in the beneficiary's place.
Facts:
- Nellie G. Tolman executed a will in 1981.
- The will provided specific cash bequests of $10,000 each to her granddaughters, Deborah C. Tomlinson and Laurie Onan, and stated that if either predeceased Tolman, 'this gift shall lapse.'
- The will bequeathed the entire remainder of the estate to Tolman's daughter, Betty Jo Miller, but this provision did not include a lapse clause or specify an alternative disposition.
- The will contained a general disinheritance clause (Paragraph 7) stating, 'Except as otherwise specifically provided for herein, I have intentionally omitted to provide herein for any of my heirs who are living at the time of my demise...'
- Betty Jo Miller predeceased her mother, Nellie G. Tolman.
- Miller was survived by her son, Michael J. Jennings, and the children of her deceased daughters (Tolman's great-grandchildren).
Procedural Posture:
- After Nellie G. Tolman's death, her granddaughter, Deborah C. Tomlinson, and grandson, Michael J. Jennings, filed competing petitions for probate in the probate court (a division of the superior court, which is the trial court).
- Tomlinson filed a petition to determine persons entitled to distribution, arguing Jennings and the other issue of Betty Jo Miller were not entitled to inherit.
- The trial court denied Tomlinson's petition, ruling that Jennings and Miller's other descendants were entitled to take Miller's share under Probate Code section 21110.
- Tomlinson, as the appellant, appealed the trial court's order to the Court of Appeals of California; Jennings is the respondent.
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Issue:
Does a general disinheritance clause in a will, which states an intention to omit all unmentioned heirs, express a sufficiently 'contrary intention' under Probate Code section 21110 to prevent the issue of a predeceased residual beneficiary from inheriting that beneficiary's share?
Opinions:
Majority - Lichtman, J.
No. A general disinheritance clause that omits unmentioned heirs does not express the contrary intention required by Probate Code section 21110 to defeat the anti-lapse statute. The court reasoned that the issue of a deceased beneficiary do not take as 'heirs' of the testator, but as 'statute-made devisees' in place of the originally named beneficiary. Relying on precedent such as Larrabee v. Tracy and Estate of Pfadenhauer, the court explained that such general exclusionary clauses only purport to exclude those claiming as direct heirs of the testator, not those who take by right of representation as lineal descendants of a named beneficiary under the anti-lapse statute. The court also noted that Tolman explicitly provided for lapse in other bequests, demonstrating she knew how to express such an intent but chose not to for the residual gift to her daughter, Miller. Therefore, the general clause was insufficient to block Jennings from inheriting his mother's share.
Analysis:
This decision reaffirms the strong public policy favoring California's anti-lapse statute and sets a high bar for what constitutes a 'contrary intention' to defeat it. It clarifies that boilerplate disinheritance clauses aimed at 'heirs' are ineffective against statutory claims made by the issue of a predeceased beneficiary. The ruling emphasizes the need for testators to be explicit and specific if they wish for a gift to a kindred beneficiary to lapse rather than pass to that beneficiary's descendants. This precedent instructs will drafters that to avoid the application of section 21110, they must include language directly addressing the specific gift, such as stating it shall lapse or providing a substitute disposition, rather than relying on general exclusionary language.
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