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In re Estate of Will

January 27, 2009


(Ventura County Super. Ct. No. P079649). Kent M. Kellegrew, Judge.

The opinion of the court was delivered by: Gilbert, P.J.


In probate matters, justice can be illusive if not absent. In Estate of Shellenbarger (2008) 169 Cal.App.4th 894, we acknowledged our obligation to follow the law of succession even when we believed to do so was unfair. We had no choice in light of our Supreme Court's admonition that it is vain for the courts to argue against the injustice of statutory rules governing the law of succession. (Estate of De Cigaran (1907) 150 Cal. 682, 688.)

But in the case we decide here, the Probate Code itself gives the probate judge discretion to reach a fair result. A good deed finds its reward, not its punishment.

Carol Anderson, trustee of the Gertrude Will Revocable Trust, appeals an order determining that Gertrude Will is not an omitted spouse in the trust or estate of decedent Ted Will. (Estate of Gagnier (1993) 21 Cal.App.4th 124, 128-129; Prob. Code, § 140 et seq.)*fn1 We affirm.


On April 13, 1980, Ted Will executed a will and trust, declaring that he was divorced and had five children, including respondent Lori Tinsley. Many years later, Ted became reacquainted with his high school classmate, Gertrude Fochs, a widow with five adult children. Ted and Gertrude later lived together in his Ventura home. Ted had acquired substantial real properties in Ventura and elsewhere. Gertrude assisted him with accountings of income from his real properties and stock holdings.

Ted, then 81 years old, and Gertrude, then 80 years old, decided to marry. Gertrude suffered from lung cancer, and Ted intended to obtain medical insurance and treatment for her. They contemplated that she would not survive Ted due to her illness.

On October 1, 2003, Ted and Gertrude visited Grover Howe, Ted's longtime attorney. Ted presented Gertrude with a prenuptial agreement drafted by another attorney. The agreement provided that Ted and Gertrude waived their respective community property interests and inheritance rights in each other's property. It also provided that the separate property of each party would pass to his or her children, but that Gertrude could live in Ted's home for five years rent-free after his death. The agreement contained schedules listing the assets of each party. Gertrude later described the prenuptial agreement as "he keeps his assets, I keep mine."

Howe read and explained each provision of the prenuptial agreement to Ted and Gertrude and answered their questions. He also informed Gertrude that he was Ted's attorney and was not representing her. Howe offered to obtain independent counsel at Ted's expense for Gertrude. She declined the offer and stated that she had read the agreement. Ted and Gertrude executed the document after leaving Howe's office.

The following day, Ted and Gertrude married. During the marriage, the parties filed separate income tax returns, maintained their separate properties, and did not acquire any community property or hold joint bank accounts.

The uncertainty of human expectations became apparent when, two years after the marriage, Ted died, leaving Gertrude the survivor. He had not amended his 1980 will and trust nor had he executed another will and trust after his marriage to Gertrude.

Gertrude later filed a petition in the probate of Ted's estate contending that she is an omitted spouse. She sought a one-third statutory interest in Ted's trust and estate pursuant to section 21610, subdivision (c). Gertrude asserted that the prenuptial agreement is unenforceable because it did not comply with the specific requirements of Family Code section 1615 concerning advice of independent counsel, seven days' advance notice of the agreement, and a separate written explanation of property rights relinquished. Lori, the administrator of Ted's estate, conceded that circumstances surrounding execution of the prenuptial agreement did not meet the specific requirements of Family Code section 1615, subdivision (c).

The probate court determined that the prenuptial agreement was independently enforceable pursuant to Probate Code, Part 3, "Contractual Arrangements Relating to Rights at Death," Chapter 1, "Surviving Spouse's Waiver of Rights." (ยง 140 et seq.) It also found that the agreement represented the parties' mutual intentions, it was fair and reasonable, Gertrude knew the extent and nature of Ted's financial affairs at the time, and it would be inequitable not to honor ...

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