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Destiny Gularte et al v. Danine Pradia et al

March 3, 2011

DESTINY GULARTE ET AL., PETITIONERS AND APPELLANTS,
v.
DANINE PRADIA ET AL., OBJECTORS AND RESPONDENTS.



Super. Ct. No. PR080076 San Luis Obispo County

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

CERTIFIED FOR PUBLICATION

Estate of STEVEN WAYNE STOKER, Deceased.

At one time the Probate Code appeared to refute the dictum, "Nothing endures but change." Not anymore.

A purported will is not executed in compliance with Probate Code requirements because it lacks witnesses' signatures. We conclude the will is valid because the trial court found by clear and convincing evidence that testator who signed it intended it to be his will. (Prob. Code, § 6110, subd. (c)(2).)*fn1

Destiny Gularte, Donald Karotick and Robert Rodriguez (appellants) appeal a judgment that denied a petition to probate a 1997 will and a trust of Steven Wayne Stoker (decedent), and granted the petition of Danine Pradia and Darrin Stoker (respondents) to probate decedent's 2005 will. We conclude, among other things, that: 1) challenges to the validity of decedent's 1997 trust were not barred by the 120-day limitations period in section 16061.8, 2) the trial court did not err by ruling that the 2005 will was valid, and 3) substantial evidence supports the judgment and the findings that decedent had revoked the 1997 will and trust. We affirm.

FACTS

On May 22, 1997, decedent executed a will and nominated Gularte to be the executor of his estate. In Article Two of the will, he listed Karotick and Gularte as the beneficiaries of gifts of personal property. In Article Three, he stated, "I give the residue of my estate to the trustee of the 1997 Steven Wayne Stoker Revocable Trust, created under the declaration of trust executed on the same date as, but immediately before, the execution of this will . . . ." Gularte was listed as the successor trustee of that trust. Decedent died on February 27, 2008.

On March 17, 2008, Gularte filed a petition to probate the will and requested that she be appointed the executor.

On March 18, Gularte served a notice to decedent's children (respondents) that pursuant to sections 16061.7 and 16061.8, they had 120 days to bring an action to contest the trust.

On March 25, Pradia filed an objection to Gularte's petition to probate the 1997 will and claimed that her father had executed a more recent will. She objected to Gularte being appointed executor. She said, "Gularte is the former girlfriend of my father. My father and [Gularte's] relationship ended in an angry moment in 2001, about 7 years ago. My father told me in November 2007 that he was afraid of [Gularte] and thought she was coming into his home and taking things."

On April 28, respondents filed a petition to probate a handwritten will signed by their father on August 28, 2005. The will provides, "To Whom It May Concern: [¶] I, Steve Stoker revoke my 1997 trust as of August 28, 2005. Destiny Gularte and Judy Stoker to get nothing. Everything is to go to my kids Darin [sic] and Danene [sic] Stoker. Darin [sic] and Danene [sic] are to have power of attorney over everything I own." The will contained no witnesses' signatures.

At trial, Anne Marie Meier testified that she was a very close friend of decedent. One night in 2005, decedent was discussing "estate planning," and he asked Meier to "get a piece of paper and a pen." He then dictated the terms of the 2005 will. Meier wrote that document in her handwriting "word for word" from decedent's dictation. She handed it to him, "he looked at it and he signed it." Decedent told Meier that this was his last will and testament. Moreover, in front of the witnesses, he urinated on the original copy of the 1997 will and then burned it.

Homer Johns, a friend of decedent's, testified that he saw decedent sign the 2005 will.

The trial court found that respondents "established that the 2005 document was created at Decedent Stoker's direction and that he signed it," and that there was clear and convincing evidence that the 2005 will "evinces Decedent Stoker's intent." The court ruled that "[s]ince the 2005 will has been accepted ...


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