Despite a lack of witnesses, letter held to be a will as a matter of law

Tim Kowal May 31, 2023

A will must be signed by two witnesses. The decedent didn’t do that in Coronado v. Berger (D2d2 May 25, 2023 No. B321347) --- Cal.Rptr. 3d --- (2023 WL 3675787). But there is an exception if the petitioner proves, by clear and convincing evidence, that the decedent intended the document as a will. And here, the letter identified the beneficiary and executor, was written on letterhead and recited the testator’s sound mind and good health, along with the testator’s full name, address, and social security number. And the testator emailed the beneficiary about it the next day.

The probate court didn’t buy it, probably because the testator and beneficiary were only romantically involved for a short time and then broke up a short time later. But the Court of Appeal reversed in an opinion that basically asks, “what more could you ask for?” The probate court pointed to the fact that the relationship between the testator (a trans woman) and the beneficiary (a woman) was only six-months old at the time and had fallen apart a few months later. But “it is not for the courts to act in a parens patriae role over competent adults by second-guessing the wisdom of their personal decisions.”

And what happens after a will is executed is not probative of the testator’s intent at the time of execution.

Takeaway: What is noteworthy about this case is that the petitioner had a heavy burden in the probate court, making her burden in the appellate court all-but-impossible. “[W]e can reverse only if we conclude that the evidence below as a matter of law compels a finding by clear and convincing evidence” that the testator intended the letter as a will.

And yet she succeeded. The two takeaways from this published opinion reversing on a factual finding on the issue of testamentary intent are (1) the wisdom of the bequest is irrelevant; and (2) acts subsequent to execution are irrelevant. If a probate court relies solely on irrelevant evidence like this, and the balance of the evidence supports a testamentary intent, then maybe the court will reverse.

But it’s still a long shot.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.

Get “Not To Be Published,” a weekly digest of these articles, delivered directly to your inbox!

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality."

— Will Durant

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody."

—T.H. White, The Once and Future King

"Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading. They cannot ask that a judgment afterwards obtained be set aside merely because their equilibrium was slightly disturbed by an unexpected motion."

— Posz v. Burchell (1962) 209 Cal.App.2d 324, 334

"So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, 'Buy spear from side or bear it,' that is, buy off the feud or fight it out."

— Roscoe Pound, An Introduction to the Philosophy of Law

“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”

— James Madison, Federalist 62

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor."

— Rubin v. Green (1993) 4 Cal.4th 1187

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind."

— Sir Thomas More in Robert Bolt's A Man for All Seasons

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws."

— Plato (427-347 B.C.)

"A judge is a law student who grades his own papers."

— H.L. Mencken

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else."

— Hon. Sir Owen Dixon, Chief Justice of Australia

Despite a lack of witnesses, letter held to be a will as a matter of law

Related Posts:

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality." — Will Durant

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody." —T.H. White, The Once and Future King

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor." — Rubin v. Green (1993) 4 Cal.4th 1187

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind." — Sir Thomas More in Robert Bolt's A Man for All Seasons

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws." — Plato (427-347 B.C.)

"A judge is a law student who grades his own papers." — H.L. Mencken

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else." — Hon. Sir Owen Dixon, Chief Justice of Australia

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly. — Leviticus