May 18, 2011
Estate of Stoker: “The Urinary Revocation”
Be sure to calendar our upcoming Long Beach Estate Planning, Trust, and Probate Law Section Brown Bag Lunch, set for Thursday, June 2, 2011 at noon in Department G of the Long Beach Superior Court. Our Speaker, Attorney Michael T. Lebeau, will be discussing Propositions 13 and 58.
Concerning the Estate of Steven Wayne Stoker, two primary issues discussed: the effective the urinary revocation of a trust (no joke), and the courts admitting of a formal will to probate that did not meet the requirements of formal will execution. The decedent executed a will and trust in 1997. In 2005 decedent asked her friend to get a piece of paper out and write down what he told her to write. The decedent dictated the will and the friend wrote it down verbatim. Decedent then signed the new document. He then got the 1997 trust out, urinated on it in front of them, and burned it up.
The issue then was whether or not the 120 day notice sent out to restrict the timing of any challenges to the trust was successful in doing so and secondly whether or not the failure of any witness to execute the dictated will of the decedent caused it to be invalid.
The court said that the 120 day restriction on challenging the trust was not in place because the trust was revoked prior to becoming irrevocable. The 1997 Trust was revoked (no, not because Decedent urinated on it) because Decedent specifically revoked it by reference in the 2005 document.
With regard to the 2005 formal will lacking witnesses the trial court ruled that the 2005 will evidences "decedent Stokers intent." Probate code section 6110 subdivision two provides "that if the will was not executed in compliance with paragraph 1 it shall be treated as if it was executed in compliance with that paragraph if the proponent of the Will establishes by clear and convincing evidence that at the time that testator signed the will testator intended it to constitute the testators will." Since the trial court made the finding that the 2005 document constituted decedents will. The statutory language is clear and broad.
So, the 1997 Trust is revoked by the 2005 Will prior to becoming irrevocable. The 120 day notice for any challenge to the trust was thus ineffective. The filing of the 2005 document for probate and service on the proponents of the trust was an effective challenge to the trust; and, though having someone else write-out one's wishes makes the document a formal will requiring two witnesses and not a holographic will, the code allows proponents of the will to overcome the deficiency by the very stiff standard of clear and convincing evidence that the will set forth the intentions of decedent.
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John T. Anderson, Section Chair
Certified Specialist in Probate, Trust and Estate Planning
By the California State Bar Board of Legal SpecializationCopyright © 2011 by John T. Anderson
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