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Estate of Ben-Ali

California Court of Appeals, First District, First Division

May 29, 2013

Estate of TARUK JOSEPH BEN-ALI, Deceased.
WENDELYN EYVONNE WILBURN et al., Contestants and Appellants. IVAN W. GOLDE, Petitioner and Respondent, v.

Alameda County Superior Court, Hon. Marshall Ivan Whitley, Trial Judge, Alameda County Super. Ct. No. HP09432597

Goins & Associates, Vernon C. Goins and Yasmin Gilani for Contestant and Appellant Wendelyn Eyvonne Wilburn.

Law Offices of Edward J. Simone and Edward J. Simon for Contestant and Appellant Brittany Desmond.

Feldman Law Group and Aaron R. Feldman for Petitioner and Respondent.

Margulies, Acting P.J.

The intestate heirs of decedent Taruk Joseph Ben-Ali appeal from a judgment admitting the decedent’s will to probate. Appellants contend there was insufficient evidence of due execution under Probate Code[1] section 6110. We agree, and reverse the judgment.


A. The Parties

Taruk, born in 1968, was the only biological child of Hassan Ben-Ali and Ann Jackson. Hassan and Jackson were married in 1973 and divorced in 1974, but maintained a relationship over the next 34 years. Hassan also had a son from a different relationship, D’Artagnan Lloyd, with whom Hassan had little contact before 2006. According to Hassan’s attorney, respondent Ivan Golde, Hassan was a very shrewd and savvy real estate investor who had owned a lot of properties over the years and had also gone through financial problems, including tax problems. One of Hassan’s properties was an apartment building at 2235 Ashby Avenue in Berkeley (hereafter Ashby property or Ashby building), which Hassan had transferred to Taruk in approximately 1993, perhaps to avoid losing the property to the IRS.

In 1995, Jackson moved into an apartment in the Ashby building. Hassan occupied another apartment in the building at that time and, according to Jackson, continued to handle all aspects of managing the property despite title being in their son’s name. On August 3, 2002, Taruk married appellant Wendelyn Wilburn. According to Wilburn, Hassan opposed the marriage, believed Wilburn just wanted to obtain a portion of the Ashby property, and persisted in trying to talk Taruk out of marrying her down to the day of their wedding. At the time of the marriage, Taruk had a young daughter from a previous relationship, appellant Brittany Desmond, and Wilburn had a son. Wilburn was aware when she married Taruk that he had spent time in prison and had a history of drug problems. According to Wilburn, drugs were not an issue for Taruk during their relationship and marriage until sometime in early 2004, when he relapsed into using drugs.

B. Decedent’s Disappearance and Death

Wilburn was on a business trip in Las Vegas on June 8, 2004, when she communicated with Taruk by telephone for the last time. Over the next two days, Wilburn repeatedly tried to call Taruk from Las Vegas, but got no answer. When she returned from her trip, she called Hassan to find out if he knew where Taruk was. Hassan told her Taruk had decided to leave her and start a new life somewhere else. He told similar stories to Jackson and others who inquired about Taruk’s whereabouts. Wilburn testified she did not believe Hassan, and made attempts to locate Taruk, but neither Wilburn nor anyone else reported Taruk’s disappearance to the police. Between June 2004 and December 2008, Hassan continued to manage Taruk’s apartment building in Taruk’s name, collected rents, forged Taruk’s name on checks drawn against Taruk’s bank accounts, and refinanced the property in the amount of $600, 000 by forging Taruk’s signature and the signature of a notary.

In November 2008, Hassan called Golde and asked to meet with him. Hassan informed Golde that Taruk had in fact died in 2004. Hassan explained he had found Taruk dead of a drug overdose in a hotel room. Not wanting to report the death for fear of losing the Ashby property, he had taken Taruk’s body to the property and hidden it in the wall of a storage area of the building. Hassan further informed Golde that a person who had assisted him in the removal and concealment of Taruk’s body was extorting substantial sums of money from him by threatening to reveal what had happened.

Hassan committed suicide on December 15, 2008, while Berkeley police officers were visiting the property. Two days later, Taruk’s body was discovered on the premises. Police believed Taruk had died four and half years earlier, in June 2004. Hassan left a will, not contested in this proceeding, in ...

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