(Sonoma County Super. Ct. No. SPR-79710), Trial Judge:Hon. Elaine M. Rushing.
The opinion of the court was delivered by: Margulies, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
In 2005 and 2006, Eugene Winans (Winans) executed wills excluding his half brother and leaving most or all of his property to appellants, Winans's nieces and nephews by a different brother. Barely one month before his death in 2007, using a different attorney, Winans executed a new will that differed considerably by including his half brother, excluding appellants, and leaving substantial property to his care custodian, respondent Elizabeth Timar and other nonrelatives who were not beneficiaries in the prior wills. Appellants challenged the validity of the new will on the grounds of undue influence by Timar and lack of testamentary capacity. They also challenged with respect to the bequest to Timar the validity of the certificate of independent review obtained by Winans under Probate Code*fn2 section 21351. After substantial discovery by the parties, the trial court granted summary judgment in favor of Timar, dismissing appellants' will contest.
Appellants contend triable issues of fact exist precluding summary judgment. Regarding the certificate of independent review, appellants contend the certifying attorney (1) failed properly to counsel Winans with respect to the "nature and consequences" of the bequest to Timar because he did not explain the statutory scheme under section 21350 and spent only a brief time in counseling, (2) did not conduct the counseling in a confidential manner because others were in the room at the time the counseling occurred, and (3) could not be considered an "independent" attorney because he was designated as executor in the will and stood to earn a substantial fee if appointed. We agree with appellants, finding triable issues of fact as to the substantive adequacy of counseling, the certifying attorney's independence, and the confidentiality of the counseling session. In addition, we find triable issues of fact with respect to Timar's alleged undue influence and Winans's testamentary capacity. Accordingly, we reverse the trial court's grant of summary judgment.
Beginning in late 2003, Winans, then 89 or 90 years old, lived in the Canterbury Home (Canterbury), a six-bed residential care facility in Santa Rosa, owned and operated by Timar. As early as 2004, Winans began suffering significant memory loss, diagnosed by his physician as "chronic dementia." Winans was in Canterbury in part because his poor memory prevented him from caring for himself, including paying bills and remembering to take medicine. As a result, Winans relied on others, often including Timar, to "fill in gaps of information." Winans was also susceptible to depression and suicidal thoughts when not treated with antidepressant medication.
In her position as head of the small care facility, Timar and her staff had more contact with Winans than anyone else during the last years of his life. In addition to caring for his physical needs, Timar made bank deposits for Winans and helped him pay bills by writing out checks for his signature. Winans's holdings were substantial; he owned several rental properties in Northern California, worth over $4 million at his death.
Winans had two sets of legal heirs: his half brother Norman Winans, who had three children, and appellants Mark Winans, Dianne Paolucci, and Phyllis Burton, the three children of another brother, Byron Winans, who died in 1999.*fn3 Appellants had not seen Winans since before Byron Winans's death in 1999 and had little or no knowledge of his personal circumstances during the last years of his life.
On May 5, 2005, Winans executed a will (2005 will) leaving a residence he owned in Forestville (Forestville property) to Susan Hirshfield and Arthur Hughes, who were then tenants in the home, and appointing them executors of his estate. In addition to being Winans's tenant, Hirshfield was his frequent visitor at Canterbury. The 2005 will required the remainder of Winans's property to be distributed by the laws of intestate succession, but Norman Winans and his children were specifically excluded for reasons the record does not make clear. As a result, appellants would have received the entirety of the very substantial residue.
Since 2004, Timar and others had been concerned that Hirshfield and Hughes were attempting to take advantage of Winans. In a form filed that year with the ombudsman who oversaw Winans's care, Timar complained Hirshfield was visiting him frequently and attempting to persuade him to sell her the Forestville property at a reduced rate.*fn4 Whatever the truth of these suspicions, in August 2006, Winans told the ombudsman he wanted to change his will. A new will was executed on September 26, 2006 (2006 will) that deleted the bequest to Hirshfield and Hughes and substituted a "private fiduciary" for Hirshfield and Hughes as the executor. Because the will left intact the instructions for intestate distribution and the exclusion of Norman Winans and his children, appellants would have inherited the entirety of Winans's estate under the 2006 will.
In April 2007, Winans suffered a stroke. The next month, after he returned to Canterbury from the hospital, Timar asked the ombudsman to speak with Winans, who had become agitated after a recent visit from Hirshfield. When she met with Winans, the ombudsman found that his speech and thought were impaired, and he relied on Timar to help him articulate his thoughts. Winans's treating physician testified that by this time Winans was a very sick man, suffering from congestive heart failure, fluid in his lungs, and kidney failure.
During the meeting with the ombudsman when Winans expressed agitation about Hirshfield's activities, those present discussed whether he needed an attorney. When the ombudsman suggested contacting the attorney who had drafted Winans's wills, Timar told the ombudsman that attorney was tainted and said she knew another one. Later that month, attorney Patrick Coyle was contacted on Winans's behalf, but it is unclear who selected Coyle to act as Winans's attorney. Despite her comment during the meeting, Timar claimed in a declaration she had no role in retaining Coyle. He was initially contacted by another attorney and the husband of Malinda Kozel, a tenant in a building Winans owned in San Francisco.
Regardless of the means by which he was selected, Coyle first met with Winans on May 31 at Canterbury. Winans told Coyle he thought he had signed a document giving away the Forestville property to Hirshfield and asked Coyle to investigate. Coyle found Winans to be alert and responding appropriately at this time. Although hard of hearing, he gave no signs of mental incompetence. After investigating and determining Winans had not given away the Forestville property, Coyle had another meeting with him. At that time, Winans told Coyle he had executed an earlier will leaving property to his brother Norman, but he destroyed it after a falling out.*fn5 Winans said he was uncertain whether Byron and Norman were still alive, but he recalled failing to attend the funeral of one of his four brothers. Winans said he had resolved not to leave any property to his brothers' children, who he believed were upset over his failure to attend that funeral. At some point, Coyle became aware Winans wanted to execute a will.
Based on Winans's statements, Coyle concluded Winans had destroyed his previous will. Coyle later asked Timar whether Winans had a will, and she answered she "didn't know," although there was evidence indicating she was aware of Winans's earlier wills. It was not until much later that Coyle learned of the 2005 and 2006 wills.
Under the impression Winans had no will, Coyle arranged for Ira Lowenthal, an attorney who shared office space with Coyle, to draft one. Coyle and Lowenthal met with Winans on June 8, 2007. Winans told the attorneys he wanted to leave the house in Forestville to Timar because she had taken care of him over the last few years. Winans also wanted to give bequests to a few longtime tenants in his other properties. During this meeting, Winans remained uncertain whether his brother Norman was alive, but he now recalled Byron's death, although he incorrectly placed it only the year before. He also recalled it was Byron's children, appellants, who ignored him because he was unable to attend their father's funeral and said he did not want to include them in the bequests for this reason.*fn6 Winans selected Coyle as his executor.
Following these discussions, Lowenthal drafted a will (2007 will) for Winans devising the Forestville property to Timar. The remaining beneficiaries, who divided the residue, were Norman Winans, Janice Hilpert, Malinda Kozel, and Raffie Vaknin, all tenants of Winans's properties, and Joan Schefer, a piano player at Canterbury with a "30 year plus history" with Winans. Expressly omitted from the 2007 will were Byron and appellants, thereby reversing the family bequests in the 2006 will executed less than a year earlier. The reason for the reversal as to Norman Winans is unclear. Because Coyle and Lowenthal were unaware of the earlier wills, they did not inquire about this change.
On June 11, Coyle and Lowenthal met with Winans at Canterbury for execution of the 2007 will. Also present was a notary public Lowenthal had brought to witness the signing. After Lowenthal read the terms of the will to Winans, Coyle counseled Winans pursuant to section 21351, informing Winans he was giving property to Timar, asking whether he had been pressured to give the bequest or whether any threats or promises had been made to obtain the bequest, and telling Winans if he had any "problems" with Timar he and Lowenthal could take care of them. Winans said his bequest was voluntary. This interaction took no more than one to five minutes. Coyle later prepared a certificate of independent review under the statute and sent it to Winans.
Based on his observations, which spanned approximately six meetings with Winans, Coyle saw no sign of mental deficits. At the time Coyle and Winans discussed a new will, Coyle testified, Winans was aware of his property, was generally aware of his family, knew what he wanted to do with his property, and had rational reasons for that disposition. Coyle concluded Winans was genuinely grateful to Timar for the care she had given him and saw no signs Timar had exercised any undue influence over Winans. Lowenthal reached similar conclusions during his conversations with Winans regarding the will.
Winans died on July 15, 2007, barely a month after executing the 2007 will. Soon after, Lowenthal filed a petition for probate of the will. In response, two will contests were filed, one by Hirshfield and Hughes and the other by appellants. Both will contest petitions alleged Winans lacked testamentary capacity when he executed the 2007 will and was subject to Timar's undue influence. Appellants' petition also alleged Timar was statutorily disqualified from receiving a bequest because she was a caregiver of Winans when the 2007 will was executed. Following substantial discovery, the probate court granted motions for summary judgment filed by Timar with respect to both will contests, holding the "evidence offered.... [is] inadequate to raise any ...