Golde v. Wilburn
216 Cal. App. 4th 1026, 157 Cal. Rptr. 3d 353 (2013)
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Rule of Law:
To establish a prima facie case for the due execution of a will, the proponent must provide evidence of the genuineness of the signatures of both the testator and all statutorily required subscribing witnesses. Proof of the genuineness of the testator's signature and only one of two witnesses' signatures is insufficient to create a presumption of due execution.
Facts:
- Taruk Ben-Ali's father, Hassan Ben-Ali, managed an apartment building that was legally owned by Taruk.
- On August 3, 2002, Taruk married Wendelyn Wilburn, a union Hassan opposed.
- A typewritten document, dated August 16, 2002, purported to be Taruk's will. It left most of his assets, including the apartment building, to Hassan.
- The purported will contained signatures attributed to Taruk, 'Wendy Ben-Ali' (Wilburn), and a second, illegible witness whose identity was unknown. Wilburn denied knowingly signing a will.
- Taruk disappeared in June 2004. Hassan told family and friends that Taruk had left to start a new life.
- For the next four and a half years, Hassan forged Taruk's name on financial documents to control the apartment building.
- In November 2008, Hassan confessed to his attorney 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 maintain control of the property.
- Hassan committed suicide in December 2008. Police subsequently found Taruk's body and the purported will among Hassan's possessions.
Procedural Posture:
- Ivan W. Golde, the alternate executor named in the will, filed a petition in the probate court to admit the purported will of Taruk Ben-Ali to probate.
- Taruk's wife, Wendelyn Wilburn, and daughter, Brittany Desmond (appellants), filed a contest challenging the will's validity.
- The probate court conducted a trial on the issue of due execution.
- The probate court found that the signatures of Taruk and Wilburn were genuine and held that the will's attestation clause created a presumption of due execution, which extended to the second, unidentified witness signature.
- The probate court admitted the will to probate and denied the will contest.
- Wilburn and Desmond appealed the judgment of the probate court to the Court of Appeal of California, First Appellate District.
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Issue:
Is proof of the genuineness of the testator's signature and only one of two attesting witnesses' signatures sufficient to establish a presumption of due execution for a will under California Probate Code § 6110?
Opinions:
Majority - Margulies, Acting P. J.
No. Proof of the genuineness of the testator's signature and only one of two attesting witnesses' signatures is insufficient to establish a presumption of due execution. The court reasoned that the presumption of due execution, which can arise from a complete attestation clause or other evidence, is fundamentally based on proof of the genuineness of the signatures of the testator and all subscribing witnesses. Here, the proponents of the will provided evidence for Taruk's signature and one witness's signature (Wilburn's), but offered no evidence to authenticate the second, illegible signature. Without proof of both witness signatures, no presumption of due execution arises. Furthermore, the court held that the proponents failed to establish by clear and convincing evidence that Taruk intended the document to be his will, as required by the statutory harmless error rule, due to the numerous suspicious circumstances, particularly Hassan's extensive fraud and concealment of Taruk's death for financial gain.
Analysis:
This decision clarifies the evidentiary foundation required to invoke the common law presumption of due execution for a will in California. It establishes a bright-line rule that the genuineness of the signatures of both the testator and all statutorily required witnesses is a necessary prerequisite for the presumption to apply. This holding limits the ability of will proponents to rely on the presumption in cases where a witness is unknown or their signature cannot be authenticated. The case also illustrates the high burden of the 'clear and convincing evidence' standard under the harmless error doctrine, showing that it cannot overcome substantial evidence of fraud or other suspicious circumstances surrounding a will's creation and discovery.
