Estate of Sauressig 9/29/04 CA2/4

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B167907

Case Date: 09/29/2004

Preview:Filed 9/29/04

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR Estate of TIMOTHY KIRK SAURESSIG, Deceased. SCOTT SMITH, Petitioner and Appellant, v. SHIRLEY K. GOFF, Objector and Respondent. B167907 (Los Angeles County Super. Ct. No. BP 076076)

APPEAL from orders of the Superior Court of Los Angeles County, H. Ronald Hauptman, Temporary Judge. (Pursuant to California Constitution, article VI, section 21.) Reversed. Paul Buchberg for Petitioner and Appellant. Hinojosa & Wallet, Lynard C. Hinojosa and Trudi Sabel for Objector and Respondent. ____________________________________

In this case we conclude that a person who otherwise satisfies the requirements of Probate Code section 61101 as a witness to the execution of a will may fulfill the signature requirement after the testator's death. Since the trial court concluded otherwise, we reverse. FACTUAL AND PROCEDURAL SUMMARY In December 1999, Timothy Kirk Sauressig went to Mail Boxes, Etc. in Van Nuys and asked proprietor Joongok Shin, who is a notary public, to notarize the execution of his will. Ms. Shin did so, and Sauressig delivered a copy of the 1999 will to his friend Scott Smith. On December 26, 2000, Sauressig again went to Mail Boxes, Etc. and asked Ms. Shin to notarize his will (the 2000 will). Ms. Shin notarized the 2000 will, and Sauressig delivered copies to Smith and Harry Ernst. Smith was appointed executor, and he, Ernst and Cliff Thomas were the sole beneficiaries under the 2000 will. Sauressig died in August 2002. In October, Smith filed a petition for probate of the 2000 will. He filed a proof of subscribing witness, executed by Ms. Shin. Smith contended the 2000 will qualified as a holographic will because on the envelope containing the typed will, decedent had written in his own handwriting "DEC. 26th, 2000" and "TIMOTHY K SAURESSIG'S LAST WILL AND TESTAMENT." The Public Administrator filed objections and exceptions to the petition, asserting that the proposed will failed to comply with the statutory requirements. He also filed a competing petition for letters of special administration. On December 16, 2002, the trial court denied the petition for probate of the 2000 will, finding that it did not qualify as a holographic will because its material terms were typed, and it did not qualify as a formal will because it contained the signature of only one witness. The court granted the petition for letters of special administration.

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All statutory references are to the Probate Code unless otherwise indicated. 2

On December 23, 2002, Division One of this court published its opinion in Estate of Eugene (2002) 104 Cal.App.4th 907, 912, holding that an otherwise qualifying witness's subscription of a will after the testator's death is not prohibited by section 6110. In light of this new case, Smith renewed his petition for probate of the 2000 will, on the ground that there was a second qualifying witness to the decedent's execution of his will. This individual was Theodore Boody, who is the husband of notary Joonkok Shin and assists Ms. Shin in managing Mail Boxes, Etc. According to his supporting declaration, Mr. Boody heard decedent request that Ms. Shin notarize his will, saw decedent sign a document which he understood to be decedent's new will, and saw Ms. Shin notarize decedent's signature on the will. Mr. Boody stated that he was "ready and willing to sign the will as a witness to the signing of the will by [decedent] on December 26, 2000." Smith sought relief under Code of Civil Procedure section 473, reconsideration under Code of Civil Procedure section 1008, subdivision (b), or new trial. Opposition to the motion was filed by claimant and interested person, Shirley K. Goff. The Public Administrator joined in the opposition. After hearing argument, the trial court denied the motion. Smith appeals from the order denying the petition for probate, and from the order denying his renewed petition. DISCUSSION I We first address the issue of appealability. Appellant sought relief from the order denying the petition for probate on several alternative grounds: renewal of the petition "and/or" reconsideration of the order pursuant to Code of Civil Procedure section 1008, subdivision (b); relief from the order pursuant to Code of Civil Procedures section 473, subdivision (b); and/or new trial. Reconsideration was sought based on the existence of new law (Estate of Eugene, supra, 104 Cal.App.4th 907) and new facts (discovery of a second, non-subscribing witness to the execution of the will). Relief from the order was based on the grounds of reasonable mistake and surprise, based on counsel's failure to anticipate the holding in Estate of Eugene and consequent excusable neglect in failing to 3

discover pertinent facts. New trial was sought based on accident or surprise, newly discovered evidence, and the assertion that the order denying probate was contrary to law. The court denied the motion and ordered respondent's counsel to prepare a notice of ruling. The record contains the court's minute order, which states, "Motion denied." There is no other notice of ruling in the record. Denial of a motion under Code of Civil Procedure section 473 is appealable. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 611.) There also is authority supporting the appealability of denial of a motion for reconsideration where, as here, it is based on new grounds not entertained in conjunction with the original order. (Ojavan Investors, Inc. v. California Coastal Com. (1994) 26 Cal.App.4th 516, 523, fn. 4; see also Tunis v. Barrow (1986) 184 Cal.App.3d 1069, 1076.) The appeal is properly before us. We turn to the merits. II "Before 1983, a formal or witnessed will had to be in writing, subscribed, acknowledged and published by the testator, and attested by two witnesses in the presence of the testator." (Estate of Eugene, supra, 104 Cal.App.4th at pp. 910-911; Prob. Code, former

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