Opinion
A120362
8-7-2008
Estate of MARIO JOSEPH CIAMPI, Deceased. JAMES PAGE, as Executor, etc., Petitioner and Respondent. v. CAROLYN S. CIAMPI, Contestant and Appellant, THE REGENTS OF THE UNIVERSITY OF CALIFORNIA et al., Claimants and Respondents.
Not to be Published
Appellant Carolyn Ciampi (Carolyn) challenges an order admitting the will of her husband Mario Ciampi (Mario) to probate. She claims that the trial court erred when it sustained without leave to amend respondent James Pages demurrer to her will contest, because Mario revoked the contested will pursuant to Probate Code section 6120. We affirm the order admitting the will to probate.
All statutory references are to the Probate Code unless otherwise specified.
I.
FACTUAL AND PROCEDURAL BACKGROUND
The following facts are taken from Pages petition to have Marios will admitted to probate, the attachments thereto, and Carolyns "First Amended Contest and Grounds of Objection to Probate of Purported Will" (first amended contest).
Carolyn and Mario were married on June 1, 1983. Carolyn was Marios second wife; Marios first wife, Loretta Ciampi, died in 1972. Mario executed a will on January 31, 1984. The will provided that Mario confirmed Carolyns interest in their community property, and that he intended by the will to dispose of his separate property and his one-half interest in their community property. The will also provided that Carolyn inherit (among other things) $500,000, subject to cost-of-living adjustments. Other provisions called for the distribution of tangible personal property and money to various people and entities, including respondent Roman Catholic Archbishop of San Francisco (Archbishop). The will nominated respondent Page, the nephew of Marios first wife Loretta, as executor. According to Carolyns first amended contest, Mario declared to Carolyn shortly after signing his 1984 will that "he did not intend the provisions of that will to take effect, that he did not want it to be probated," and that he "maintained that position for the remainder of his life."
Mario died on July 6, 2006. Carolyn filed a petition for appointment as administrator (apparently claiming that Mario died intestate), and the trial court appointed her administrator on August 28, 2006. On February 23, 2007, respondent Page filed a copy of Marios 1984 will, and petitioned to have the will admitted to probate. Page requested that Carolyn be removed as administrator upon admission of Marios will to probate.
The will submitted to the trial court has handwritten notes on almost each page, most in the margins. According to Carolyn, Mario marked up his original will with the intent of revoking it. Although many of the notes are illegible (at least on the copy of the will that is included in the record on appeal), we highlight some of the notes that are legible:
Because we accept for purposes of a demurrer that all facts pleaded in Carolyns first amended contest are true, we assume that Mario wrote all the notations on his will, although no evidence was submitted on the issue.
• The will provided that Archbishop receive $50,000 in trust to be used for a library to honor Marios first wife Loretta; it also provided that Archbishop receive $50,000 in trust to purchase books and other materials for the library. Next to three of the paragraphs regarding the trusts, Mario wrote "cancel."
• Mario underlined various specific bequests, and wrote different amounts in the margins. For example, next to a paragraph granting $50,000 in trust to the Harvard College Graduate School of Design, Mario underlined "$50,000" and wrote "100,000" in the margin.
• Mario wrote the word "omit" next to several paragraphs.
• The will provided that Marios niece Lynne Ciampi receive $1,000. Mario crossed out Lynne Ciampis name, wrote "omit" next to it, and also wrote "Lynne deceased" in the margin.
• Next to the article of the will that appointed Page as the trustee of all trusts established under the will, Mario wrote: "Carolyn Ciampi inherits all property and is the administrator. Upon her death all property residue should be left to the University of California for—Ciampi Cen see plans."
It is difficult to read Marios handwriting on this portion of the will. The passage cited above is consistent with Carolyns quotation in her opening brief, the accuracy of which respondents do not challenge. The Regents of the University of California appeared at the hearing on Pages first demurrer; however, they have not filed a brief in this appeal.
• Mario wrote question marks next to various provisions in the will.
• There are no lines over, or notes next to, Marios signature at the end of the will.
Carolyn filed a contest and objection to probate of Marios 1984 will, alleging that Mario "revoked the 1984 will a number of years before his death by marking up the original of the will so as to cancel its provisions with the intent to revoke the will." Page demurred to the contest, arguing that, as a matter of law, Marios will had not been revoked. The trial court sustained the demurrer with leave to amend.
Carolyn filed the first amended contest on August 31, 2007. She again alleged that Mario revoked his 1984 will in its entirety, and that he never wanted the will to be probated. Page again demurred to the contest.
Although not a moving party, respondent Archbishop appeared at the hearing on Pages demurrer to the first amended contest. Archbishop filed a brief in this appeal, and joins in Pages arguments.
The trial court sustained Pages demurrer to Carolyns first amended contest without leave to amend, and granted Pages petition to admit the will to probate. The courts minute order states that "there is simply no act by decedent sufficient to sustain a finding that he revoked the entire will as opposed to, perhaps, particular provisions." (Capitalization removed.) The trial courts formal order states: "The Demurrer is sustained without leave to amend. The Court finds as a matter of law that the 1984 Will of Mario Ciampi has not been revoked pursuant to Probate Code section 6120." The order also states: "The Petition of James B. Page to admit the 1984 Will of Mario Ciampi to Probate is granted, all objections and contests having been overruled." Carolyn timely appealed from the order admitting Marios will to probate. (§ 1303, subd. (b) [order admitting a will to probate appealable]; Estate of Weber (1991) 229 Cal.App.3d 22, 24-25 [order dismissing preprobate contest after sustaining demurrer is not appealable; appeal must be from order admitting will to probate].)
II.
DISCUSSION
A demurrer tests the legal sufficiency of a complaint. (Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1497.) Our standard of review is de novo; we exercise our independent judgment about whether the first amended contest states a cause of action as a matter of law. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.)
The parties disagree on appeal, as they did below, whether Marios notes in the margins of his will were sufficient to revoke his entire will. Probate Code section 6120 provides: "A will or any part thereof is revoked by any of the following: [¶] (a) A subsequent will which revokes the prior will or part expressly or by inconsistency. [¶] (b) Being burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it, by either (1) the testator or (2) another person in the testators presence and by the testators direction." Carolyn bears the burden of proving revocation. (§ 8252, subd. (a).) She does not argue that Marios notes created a new will, so section 6120, subdivision (a) does not apply.
As to whether subdivision (b) applies, the parties disagree over whether Marios notes "canceled" his will (Carolyn does not claim that Mario burned, tore, obliterated, or destroyed it). (§ 6120, subd. (b).) It is well settled that to revoke a will, there must be "the joint union of act and intent." (Estate of Olmsted (1898) 122 Cal. 224, 229.) In other words, the testator must have taken physical action to revoke a will with the intent of revoking it. (Id. at pp. 229-230.) Respondent Page concedes that the pleadings establish that Mario intended to revoke his 1984 will when he wrote in the margins of the will. He and Archbishop argue that even assuming Mario intended to revoke his will, his notes were insufficient as a matter of law to cancel the entire will, as the trial court found. We agree.
Archbishop contends that the marks on the will are inconsistent with any purported intent to die intestate.
Estate of Olmsted, supra, 122 Cal. 224 is instructive. In Olmsted, there were numerous "lines, interlineations, erasions, cancellations, and new writings of words, phrases, or sentences" on the face of a will. (Id. at p. 228.) The will had been signed seven times: in the margin of each page of the will, as well as at the end of the will. (Ibid.) Each signature was canceled by two lines "drawn through and across their full length." (Ibid.) Some of the wills clauses were canceled with ink lines drawn the full length of every line of the clause, and by "cross lines extending from the top to the bottom." (Ibid.) The decedent wrote on the last page of the will, " `Owing to the depreciation in my property I will make a new will. " (Ibid.) The court upheld the trial courts refusal to admit the will to probate, concluding that the will had been revoked pursuant to former Civil Code section 1292, which is almost identical to section 6120. (Olmsted, at pp. 226, 229, 233.) The Olmsted court noted that "[o]ne of the recognized modes of revoking a will is by cancellation. In its primal significance the word means a lattice work. As applied to writings, it means the nullification of a writing by drawing upon its face lines in the form of a lattice work, `crisscross. Usually in legal as well as in common acceptance, cancellation is accomplished by the drawing of any lines over or across words with the intent to nullify them. It is common business practice to cancel negotiable instruments and other written contracts by drawing such lines through the signatures of the makers. Such was the method adopted in this case. It is a well-recognized method, as has been said, and one clearly within the letter and the spirit of the statute." (Id. at p. 230.) Although some of the acts of cancellation in Olmsted were "equivocal," there was sufficient evidence of the testators intent to revoke the will. (Id. at pp. 230-231.)
Carolyn acknowledges on appeal that the "marks and writings" on Marios will are "ambiguous." She argues, however, that evidence of Marios intent to revoke his will "clear[s] up" the ambiguity. What this argument fails to acknowledge is that even assuming Mario acted with the requisite intent, his actions were insufficient to revoke his entire will as Carolyn alleged in her first amended contest. Unlike in Olmsted, Mario wrote no lines through the provisions of his will (with the exception of lines written through the name of a niece), and he did not cross out his signature. Although it is true that "if the intent to revoke clearly appears, a slight act within the statute will be deemed sufficient" (Estate of Olmsted, supra, 122 Cal. at p. 230), cases that have addressed what actions are sufficient to "cancel" a will have focused on drawing lines through various provisions of the document. (Estate of Martens (1937) 10 Cal.2d 395, 397-398 [directing another to draw a typewritten line through provision sufficient to revoke that portion of the will]; Estate of Wikman (1906) 148 Cal. 642, 645-646 ["ink-lines" through words were sufficient to revoke part of will]; Estate of Uhl (1969) 1 Cal.App.3d 138, 141 [drawing line through provision was sufficient to cancel it].)
Carolyn stresses that Olmsted, supra, 122 Cal. 224 "did not describe every method of cancellation." She argues that by (1) writing " `cancel " and " `Omit " next to "every substantive distributive provision" of the will and (2) providing in handwritten notes that Carolyn inherit all his property, Mario canceled his entire will. Carolyn argues that Estate of Martens, supra, 10 Cal.2d 395, and Estate of Wikman, supra, 148 Cal. 642, are distinguishable, because they involved only partial revocations that did not refer to "the whole will." We disagree that Marios notes were sufficient to cancel his entire will. As the trial court noted, the handwritten notes regarding Carolyns inheritance were not a sufficient "physical act" to cancel the entire document. At most, Marios notes show that he intended to make a new will at some point in the future, but the notes were insufficient to actually cancel his valid will.
At oral argument, Carolyns counsel pointed to Marios writing on the will that "Carolyn Ciampi inherits all property and is the administrator. Upon her death all property residue should be left to the University of California . . . ." He argued that this language was sufficient to revoke the will, because it was inconsistent with the wills substantive provisions. Again, we disagree. It is well settled that a testator can revoke a will by holographic instrument. (Estate of Smith (1948) 31 Cal.2d 563, 567.) In Smith, a testator wrote across the typewritten portion of the first page of an unexecuted carbon copy of her will: " `I Katherine Allen Smith do hereby revoke this will it is now nul and void (nul & void) Katherine Allen Smith July 10th 1945. " (Id. at p. 565.) Similar writing appeared across dispositive provisions of the second page of the two-page will. (Ibid.) The court held that this was an effective revocation of the will by holographic instrument. (Id. at pp. 567-568.) Here, by contrast, the writing Carolyn points to was written in the middle of the instrument, it was not written across any specific provision, it was not signed and dated, and it did not specifically indicate an intent to revoke the will. As Carolyns counsel acknowledged at oral argument, Carolyn does not claim that Marios writing amounted to a valid holographic instrument. Again, Marios notes were not a sufficient physical act to actually cancel his will.
Carolyn repeatedly argues that she was precluded from offering evidence regarding Marios intent to revoke his 1984 will. For example, she claims that "[r]ejecting" testimony about Marios intent is contrary to Evidence Code section 1260, which exempts certain statements about wills from the hearsay rule. Because the limited role of a demurrer is to test the legal sufficiency of a pleading (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994), it would have been inappropriate to consider evidence that Carolyn claimed she could eventually produce. It is the trial courts role to treat the demurrer as admitting all material facts properly pleaded. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) Here, even assuming that Mario had the requisite intent to revoke his entire will as alleged in the first amended contest, his actions were insufficient as a matter of law to do so. Additional evidence of Marios intent would not alter this conclusion.
The statute provides: "(a) Evidence of a statement made by a declarant who is unavailable as a witness that he has or has not made a will, or has or has not revoked his will, or that identifies his will, is not made inadmissible by the hearsay rule. [¶] (b) Evidence of a statement is inadmissible under this section if the statement was made under circumstances such as to indicate its lack of trustworthiness."
We stress that Carolyns first amended will contest alleged that Mario revoked his will "in its entirety." (Italics added.) Pages demurrer challenged the legal sufficiency of that claim, and the trial court correctly concluded that Marios entire will was not revoked. As cases cited by the parties recognize, a testator may revoke portions of a will, while leaving other provisions intact. (Estate of Martens, supra, 10 Cal.2d at p. 398; Estate of Wikman, supra, 148 Cal. at pp. 645-646; Estate of Cumming (1979) 96 Cal.App.3d 867, 871; Estate of Uhl, supra, 1 Cal.App.3d at p. 143; Estate of Callahan (1965) 237 Cal.App.2d 818, 824-825 [destruction of part of will does not result in revocation of remainder of will].) Although the trial courts minute order here acknowledged that "particular provisions" of Marios will were "perhaps" revoked, its order admitting the will to probate excludes no particular provision, presumably because Carolyns contest did not request that the court do so. We likewise do not consider whether Marios will was partially revoked. As respondent Archbishop notes, the only theory presented below or on appeal was that Mario revoked his entire will.
III.
DISPOSITION
The order admitting Mario Ciampis will to probate is affirmed.
We concur:
Ruvolo, P.J.
Reardon, J.