Opinion
A118912
9-19-2008
Estate of LAURA LANE, Deceased. THOMAS PAIGE et al., Petitioners and Appellants, v. CYNTHIA LANE, Objector and Respondent.
Not to be Published
We uphold a probate courts conclusion that an "assisted signing" validly created a power of attorney under Probate Code section 4121, thus rendering a later transfer of title pursuant to that power valid.
All unspecified section references in this opinion are to the Probate Code.
Section 4022: " `Power of attorney means a written instrument, however denominated, that is executed by a natural person having the capacity to contract and that grants authority to an attorney-in-fact. . . ."
Section 4120: "A natural person having the capacity to contract may execute a power of attorney."
Section 4121: "A power of attorney is legally sufficient if all of the following requirements are satisfied:
"(a) The power of attorney contains the date of its execution.
"(b) The power of attorney is signed either (1) by the principal or (2) in the principals name by another adult in the principals presence and at the principals direction.
"(c) The power of attorney is either (1) acknowledged before a notary public or (2) signed by at least two witnesses who satisfy the requirements of Section 4122."
BACKGROUND
Laura Lanes death in 2005, after a long course of Alzheimers disease, left her daughter, Cynthia Lane, sole surviving joint tenant of the family home in Pacifica. In 1997, Cynthia had used durable powers of attorney obtained earlier that year from her mother, and her father Dell Lane, to execute a grant deed adding herself to title as a joint tenant with her parents.
Cynthia was one of six children of Laura (two being from a prior marriage), and Cynthias right of survivorship under the joint tenancy deed meant, in effect, that the house passed to her outside the estate. An unsigned copy of a 1975 will that was never probated would have left all property to the children, Dell having predeceased Laura in late 1997. After Dells death, Cynthia and a sister, Charlotte Lane, lived in the house and cared for Laura, with Cynthia paying most expenses (e.g., insurance, utilities, taxes) and some of the other siblings using the house from time to time.
For simplicity, we refer to family members initially by their full names but thereafter by their first names.
In May 2006, siblings Thomas Paige and Lionel Lane (petitioners) petitioned for letters of administration and to have Charlotte appointed administrator. They did not seek probate of the will because, the only known copy being unsigned, they alleged that Laura had died intestate. Cynthia demurred. Her pleading is not in the record but was evidently based on the house having passed in a nonprobate transfer, by survivorship, and all estate property having been distributed without administration (§ 13100 et seq.). The petition, however, alleged that Laura, due to Alzheimers disease, lacked legal capacity in 1997 to execute the power of attorney and that a resemblance of the signature to Cynthias raised doubt whether Laura signed it herself. The court overruled Cynthias demurrer and appointed Lionel administrator.
The matter went to a bench trial in April 2007 before the Honorable Rosemary Pfeiffer "on the issue of distribution of the estate of Laura Lane," the "only significant asset not yet distributed at the time of trial [being] the residence . . . ." The disputed issues were Lauras capacity and the validity of the signing. Judge Pfeiffer issued a six-page decision that evaluated testimony by 15 witnesses, but our record contains transcripts of the testimony of only three witnesses. One is Dr. John Luce, who deemed Laura lacking in capacity based on reviewing medical records and a videotape from a 1994 family reunion. (The videotape is not itself in the record.) We also have transcripts of two witnesses to Lauras 1997 signing, Cynthia, and attorney Peter Balogh, who prepared and notarized the document.
Balogh is also Cynthias counsel on this appeal.
The court found, after considering bias and conflicting testimony, that Laura was competent at the January 21, 1997 signing. The decision notes, for example, that Alice Lane, a relative of Dells by marriage who had "no interest in the property" and "nothing to gain or lose by a ruling in this case," had testified that she found Laura capable of conversation and understanding up to early 1997. The court relied on the testimony by Balogh, discounting to some extent that of the caretaker sisters, Cynthia and Charlotte, whom the court found unreliable because of their interests in the outcome. Noting, at one point, a conflict between Cynthias and Baloghs accounts as to whether Laura responded verbally, the court cited this, in a footnote, as one reason why it decided "not to vest significant credibility in any family member."
The court held that petitioners failed to rebut "the inference of capacity for Laura by a sufficient preponderance of the evidence." The court credited Baloghs account that the signing was " `assisted because her hand shook[,] not because she did not have the intention to sign," and it found no precedent "that would render a document invalid because of assistance received." Accordingly, the court denied petitioners request "to cancel the deed" and decreed that the property "remain[] as titled."
The decision states this after noting that Cynthia argued for "a presumption of legal capacity under Civil Code [section] 2296," which states that "[a]ny person having capacity to contract may appoint an agent . . . ." While that does not state a presumption, all parties appear to accept that there is one. We assume that they have in mind section 810, subdivision (a), which declares "a rebuttable presumption affecting the burden of proof that all persons have the capacity to make decisions and to be responsible for their acts or decisions." No one claims error in this regard.
As will be seen (pt. II, post), this appeal poses no challenge to the finding of capacity. A summary of Baloghs testimony therefore suffices. Balogh explained that he had known the Lanes for many years, acted as a notary public for them many times, and had them in his office numerous times. He had become an attorney in 1993, and for this meeting he prepared powers of attorney for both Dell and Laura. He almost certainly met with both together. He would typically meet separately as well, and did so with Laura. He probably did not do this with Dell, his experience being that Dell "was very clear and had had clarity as to what he wanted."
Balogh did not recall Laura asking questions or verbalizing at all that day, except that, being "very affectionate," she might have said hello to him. He also thought that she squeezed his hand. Balogh met with her alone for two to five minutes, his constant habit as an attorney being to exclude everyone else from the room. He typically asked "a litany" of questions before anyone signed something, particularly if someone was being excluded or it was an act involving one child. He asked Laura "a number of questions. Does she understand the document[;] does she . . . want to appoint Cynthia Lane as power of attorney? Does she trust her daughter to handle her affairs, etc." Laura nodded appropriately, in agreement, to every question. He "felt that she understood the essential nature of her act in appointing [Cynthia] as her agent" and had no compunction at all at her signing in her capacity as an individual. Balogh also used his "experience with them over time. I had seen them over a number of years." At no point through the signing did he have any concerns about her not understanding what was going on. This was clear from past contacts with them and "from the questions I asked and what was going on . . . ." Laura "clearly wanted to appoint Cynthia as her agent."
Balogh described the "assisted signing" this way. Generally, he said, he would "put the document in front of the person." If they "cannot actually physically complete the task of a signature but [are] intending to do so, then I have on numerous occasions had someone either assist or align the book or align the document or help them position a pen in their hand." For example, he would use assistance if someone on their deathbed "were unable because of physical limitations to do anything but a rough X but there was no question of their legal capacity at that time." "[N]o one asked" for the assistance here, and he could "not recall specifically" whether Cynthia just placed Lauras hand at the right spot or followed throughout the entire signature. Lauras "hand had a tremble or some sort of limitation—physical limitation," and "she signed with the assistance of Cynthia." Balogh did not recall whether Dell was present or in a waiting room. "[T]here was nothing unusual or deceptive or anything I was not comfortable with."
Cynthias recollection was more specific. Laura "picked up the pen but as she kind of like—her hand was shaking. And so Mr. Balogh said it would be okay if I assisted her in signing her name." She did not remember whether anyone asked Balogh. Laura "had the pen in her hand already and she was going to go down on the paper and I helped her write her name"—through the entire signature, she believed. Cynthia had similarly said in deposition that she assisted because Lauras hands were shaking and that the shaking was just a physical problem, not a mental one.
DISCUSSION
I. Appealability
Code of Civil Procedure section 904.1, subdivision (10), renders appealable "an order made appealable by the provisions of the Probate Code . . .," and "the appealability of an order of the probate court is determined not from its form, but from its legal effect" (Estate of Martin (1999) 72 Cal.App.4th 1438, 1442).
Cynthia disputes the appealability of the order, insisting that, since it involved a challenge to the exercise or validity of a power of attorney, it was governed by division 4.5, part 4, of the Probate Code (§ 4500 et seq.), and hence section 1302, subdivision (a), making appealable "[a]ny final order under Section 4541 . . . ." She argues that no such appeal lies here, and that we must dismiss the appeal, because the petition did not seek any orders under section 4541.
Section 4541 authorizes filing a petition under that part for, among other things, "(b) Passing on the acts . . . of the attorney-in-fact . . . ." Assuming, however, that this petition could have been brought under that provision as challenging Cynthias act of executing the joint tenancy grant deed, we agree with petitioners that the order is in any event appealable under section 1303, which renders appealable "the grant or refusal to grant" orders "(f) Determining heirship, succession, entitlement, or the persons to whom distribution should be made," or "(g) Directing distribution of property."
The petition, while requesting an administrator and administration of the estate, was immediately recognized by Judge Pfeiffer as a request for property distribution, for in appointing Lionel administrator, she postponed fixing a bond amount, writing that the amount was "to be set if property is returned to estate." Her later decision began: "This matter was tried on the issue of distribution of the estate of Laura Lane," and ended: "The requests to cancel the deed or charge rent are denied. The property remains as titled." This was in essence a refusal to grant an order determining entitlement or directing the distribution of property (§ 1303, subds. (f)-(g)), and while the underlying issues included the validity of a power of attorney, we test the appealability of a probate order "not from its form, but from its legal effect" (Estate of Martin, supra, 72 Cal.App.4th at p. 1442).
We have jurisdiction and therefore deny Cynthias request for dismissal.
II. Issues and Standard of Review
In their opening brief, petitioners frame the issue of the assisted signings validity as "a question of law" based on "undisputed facts," thus requiring de novo review. One would assume from this that petitioners do not challenge the capacity finding. However, this assumption turns murky as the brief goes on to urge that this case is unlike will cases that have upheld assisted signings because we have "allegations of fraud and incapacity." This policy plaint permeates petitioners briefing (see pt. III, post), but to illustrate it, petitioners marshal testimony on the question of capacity that is largely contrary to the courts finding.
Cynthia cries foul, urging in her respondents brief that petitioners are trying to mount a partly factual attack in the guise of a pure question of law, and they correctly note that a mixed question of law and fact, like capacity, requires review of any predicate facts for substantial evidence, and only then an assessment of the legal consequence of the facts. (Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881, 888.)
In their reply brief, petitioners clarify that they do not seek review of the capacity finding, only "a de novo review of the lower courts finding of law" that assisted signing is allowed by section 4121, and that they simply want us to be aware that "allegations and evidence of fraud and incapacity" were "present in this case." We note further that, even if petitioners did seek to overturn the capacity finding, their failure to provide a complete record of all pertinent testimony would result in a waiver of the point. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575; Estate of Feeney (1983) 139 Cal.App.3d 812, 817.)
Petitioners clarification of the issue might settle the matter, but we find that neither party is correct in assuming that the validity of the assisted signing in this case poses a pure question of law. One factual conflict is resolved right in the decision. Cynthia recalled overhearing a back-and-forth conversation lasting a few minutes, with Laura responding verbally more than once; Balogh recalled no verbal responses, only Laura nodding her responses. A footnote in the decision cites this as "an indication of the unreliability of interested family members and the basis for the Courts decision not to vest significant credibility in any family member," and signals that the court rejected Cynthias version on that point. That could bear, for example, on the question of whether Laura implicitly approved of Cynthia later assisting her in signing. Thus not all of the pertinent facts were undisputed.
Moreover, even undisputed facts can support conflicting inferences. " ` "[E]ven though all the facts are admitted or uncontradicted, nevertheless, if it appears that either one of two inferences may fairly and reasonably be deduced from those facts, there still remains in the case a question of fact to be determined by the . . . trial judge . . . . In so far as the evidence is subject to opposing inferences, it must upon a review thereof be regarded in the light most favorable to the support of the judgment." [Citation] . . . . [Citation.] ` "Even if this court were of the opinion that that determination was wrong, it would not have the power to substitute its deductions for those of the trial court. For . . . when opposing inferences may reasonably be drawn from the facts in a case, the finding of the trial court will not be set aside." [Citation.] [Citation.]" (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 633.)
We therefore review the validity of the assisted signing as a mixed question of law and fact, and we cannot take the courts broad statement about Cynthias reliability as a complete rejection of her testimony. Our duty is to view conflicting facts and inferences in a light most favorable to the decision (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 571), and a factfinder is free to partially believe a witnesss testimony (People v. Maxwell (1979) 94 Cal.App.3d 562, 576). Thus, except where the court made an express finding against Cynthia on a particular point, we assume that the court resolved all conflicts in favor of its decision (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925-926), even if that meant relying on Cynthias testimony.
III. Validity of the Assisted Signing
We have set out the full requirements of section 4121 for a valid power of attorney (fn. 1, ante). Petitioners challenge is confined to subdivision (b), which requires that the instrument be "signed either (1) by the principal or (2) in the principals name by another adult in the principals presence and at the principals direction." Petitioners, noting that Laura did not sign entirely on her own or verbally direct a signing by Cynthia, contend that neither type of signing occurred here, and that policy considerations of capacity and fraud militate against finding statutory compliance. Cynthia contends that both types of signing were satisfied, and that no policy prohibition is warranted. We need not consider every argument, for the record and precedent support a signing "by the principal."
We start, as we must, by viewing conflicting facts and reasonable inferences most favorably to the judgment. Balogh, who knew Laura from years of prior contact and tested her responses that day, saw that she nodded affirmatively to each of his questions. He recalled, as bolstered by his usual practice, that he asked Laura if she understood the document, wanted her daughter appointed, and trusted her daughter to handle her affairs. He understood that Laura "clearly wanted to appoint Cynthia as her agent." Then, as related by Cynthia, Laura "picked up the pen," "had the pen in her hand" and "was going to go down on the paper," when a trembling or shaking hand posed a "physical" (not "mental") limitation that required Cynthia to help.
The record thus shows that Laura understood what she was doing, wanted to sign, started to sign, and was impeded only by a trembling hand. Cynthia recalled that Balogh "said it was okay" to assist, and so she did, guiding her mothers hand, probably for the full signature. The fact that Laura was capable of expressing agreement through a nod supports an inference that she could have expressed disagreement through a shake of the head or other nonverbal sign. No such sign appears, making it reasonable to infer, since she had legal capacity, that she assented to being helped in this manner.
Do those facts render the signing valid under section 4121, subdivision (b)? We turn first to the words of the statute, "generally the most reliable indicator of legislative intent" (In re J. W. (2002) 29 Cal.4th 200, 209), and in analyzing the language, "we seek to give meaning to every word and phrase in the statute to accomplish a result consistent with the legislative purpose, i.e., the object to be achieved and the evil to be prevented" (Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1159).
What our facts present may be described as circumstances falling between the specified categories of signings (1) "by the principal" and (2) "in the principals name by another adult in the principals presence and at the principals direction." (§ 4121, subd. (b).) Under category (1): Laura did not sign entirely on her own; she was assisted by a daughter who guided her trembling hand. Under category (2): Laura did not delegate the task to her daughter or, of course, verbally "direct" such a delegation; she kept her hand on the pen and thus had no occasion to "direct" Cynthia to sign for her. Nevertheless, viewing the facts favorably to the decision, Laura did assent to the help she received. On these facts, we hold that this was a category (1) signing "by the principal."
The issue is whether category (1), which does not say anything about "assisted" signing, is violated by signing assistance. Petitioners view is that the language does not allow "assisted" signings, but we find that position too extreme. Petitioners use the term "assisted" as if it were a term of art, but in truth, a signing may be "assisted" in a variety of ways. "Assist" commonly means "[t]o give help or support to, especially as a subordinate or supplement; aid[.]" (American Heritage Dict. (3d ed. 1992) p. 112.) By that definition, all of the examples Balogh gave of having helped other clients sign other documents qualified. He said that he would "put the document in front of the person," and, if he or she could not "actually physically complete the task of a signature" but intended to do so, would have someone "align the book or align the document or help them position a pen in their hand." All of that is "assistance," as commonly understood, and petitioners do not clearly signal whether they would find any or all of such help to exceed the scope of a signing "by the principal." Forbidding the positioning of a document or the placing of a pen in a principals hand, for example, would surely be an absurd result inconsistent with the evident legislative intent.
The requirements of personal signing or directing another to sign in ones stead (§ 4121, subd. (b)) clearly operate to ensure volition by the signer and the absence of fraud, and thus the validity of any "assisted" signing must be measured against those purposes, and in a manner that is fact-specific. Laura had been examined about what she was about to do. She understood, expressed her understanding by nods of her head (given diminished verbal abilities), wanted to sign, picked up the pen on her own, and was "going to go down" onto the document when it appeared that that a shaking hand would pose a physical impediment. Cynthia and Balogh noticed this, we infer, soon enough that Laura had no need to ask or gesture for help. Cynthia supported her hand throughout the signature, and there is no evidence that Laura resisted this help in any way. Nor is there evidence that the assistance supplanted, rather than supplemented, Lauras own efforts. Volition being a key purpose served by a personal signing, we hold that the assistance Laura received here, in the total circumstances, fell within the scope of a signing, in code contemplation, "by the principal" (§ 4121, subd. (b)(1)).
We are not persuaded by petitioners constant refrain that there should be no tolerance for assisted signing in this case because there were "allegations of fraud and incapacity." "Allegations" are a poor measure for determining, at any given signing, whether a principal should be given assistance. Fraud and incapacity can also be "alleged," formally or colloquially, without any justification. Thus we look not to allegations, but to evidence. Here, beyond the precautionary concerns explored by Balogh in testing Lauras capacity and intentions, there was evidently no concern by anyone. Lauras husband Dell and son Lionel (now a petitioner) were present that day, evidently without voicing any concern or objection.
Petitioners derive their "fraud and incapacity" argument from case law that, in testing the validity of will creations, notes, as policy support, the absence of fraud or incapacity in a given case. Such observations were made, for example, in validating use of a mark, in lieu of a signature, by one who knew how to write but was unable to do so by reason of physical infirmity. (In re Guilfoyle (1892) 96 Cal. 598, 599-601.) Similarly, lack of fraud or incapacity was noted in approving postdeath witness attestations to a principals acknowledgement of a power of attorney. (Estate of Rabinowitz (2003) 114 Cal.App.4th 635, 639-640; see also Torres v. Torres (2006) 135 Cal.App.4th 870, 874-877 [statutory form power of attorney (§ 4401) validly executed by principal who wrote "X," instead of initials, on lines designating powers conferred].) In this case, petitioners parrot the twin grievances of fraud and incapacity, yet they presented evidence below only on capacity, not fraud. The court made no finding on fraud, and petitioners claim no error in that regard. And, as already noted, the courts resolution of the capacity issue is unchallenged on appeal. Thus we have before us no issue of fraud or incapacity.
Cynthia urges that the Power of Attorney Law (§ 4000 et seq.), by expressly incorporating the general law of agency unless otherwise specified (§ 4051; see 1995 Comprehensive Power of Attorney Law (1994) 24 Cal. Law Revision Com. Rep. (1994) pp. 336-338), sets less rigorous standards for powers of attorney than wills. Whatever the case, on the question here of signing requirements, the power of attorney requirements are expressly set out and essentially the same for wills. Section 6110 states in part: "(b) The will shall be signed by one of the following: [¶] (1) By the testator. [¶] (2) In the testators name by some other person in the testators presence and by the testators direction." There is no obvious distinction between that provision and section 4121, subdivision (b) (see fn. 1, ante).
Two will cases relied upon by petitioners work against them, in principle. The testator in Estate of Holloway (1925) 195 Cal. 711, had to be lifted up in his bed and, since he could not hold a pencil himself, have his hand guided while signing. (Id. at pp. 716-717.) His ability to verbally affirm that this was what he wanted led the Supreme Court to uphold the execution as a code-authorized signing " `at the direction " of the testator (former Civ. Code, § 1276, subd. 1), but the courts reasoning is broader, and instructive here: "The fact that another person did the writing or guided the testators hand because he was physically weak comes within the provisions of [the code section], and raises no presumption against the due execution of the will. [Citation.] . . . The question is not whether the testator himself, or another person at his request, signed the will at the end thereof, but whether the testator had sufficient understanding to direct the disposition of his property. This question . . . has particular reference to the physical capacity of the testator . . . ." (Id. at p. 719, italics added.) While Laura could not express herself verbally, the record shows that she had capacity and understood what she was doing. Moreover, unlike the testator in Holloway, Laura was able to pick up the pen, hold it and move toward the document unassisted. This shows less ambiguity in her act than would have been the case had the testator in Holloway lacked any verbal expression.
Similarly, the testator in Estate of Clark (1915) 170 Cal. 418 had to be raised up, with the will placed in front of him, had to partly pantomime his desires, could physically do no more than make a mark, and could not hold a writing implement on his own. Someone had to guide his hand to make a mark next to his name as affixed by someone else. (Id. at p. 421.) The Supreme Court held. "Neither the fact that testator made his wishes known partly by pantomime and partly in answer to questions, nor the circumstance that the mechanical work of affixing his name to the will was performed by another serves to invalidate the instrument. [Citation.]" (Id. at p. 424.)
Petitioners cite a case dealing with a policy of strict compliance to avoid fraud, regardless of a testators intentions, at least regarding a one-time code formality that the testators signature appear at the end of a will. (Estate of McCabe (1990) 224 Cal.App.3d 330, 333.) The same case, however, goes on to note a competing policy of substantial compliance designed to favor validity. (Id. at pp. 333-334.) In the end, that case found substantial compliance where a decedents mark was placed near his name and, while a witness had not repeated the decedents name as required for verifying a mark (Civ. Code, § 14; Code Civ. Proc., § 17), the opportunity for fraud was "minimal." (McCabe, at p. 334.) Here, as already noted, there are not even "allegations" of fraud, much less evidence. Our construction of the circumstances as a valid signature by the principal (§ 4121, subd. (b)) also makes it unnecessary to consider the code formalities of attesting to a "mark."
Finally, petitioners urge us to consider cases from "other states," by which they mean just Wisconsin. Sister state decisions on similar statutes can be persuasive when the law of our own state is uncertain; if unsound, however, sister-state decisions will not be followed, even for identical statutes. (Acco Contractors, Inc. v. McNamara & Peepe Lumber Co. (1976) 63 Cal.App.3d 292, 296.) Petitioners rely principally on Matter of Estate of DeThorne (Wis.App. 1991) 163 Wis.2d 387 , which we call DeThorne I in light of an ensuing related decision that they do not cite. Cynthia does not address any Wisconsin cases. We find DeThorne I distinguishable and, in any event, unpersuasive in light of California precedent allowing assisted signings where, as here, the signers volition and intent are clear.
DeThorne I construed a will-creation statute that is materially like our own (fn. 5, ante), except that a will not signed by the testator, but by another, must be at the testators " `express direction " (DeThorne I, supra, 471 N.W.2d at p. 782, quoting Wis. Stats. § 853.03(1)). Testator Robert DeThorne, a cancer patient who had returned home weak, after treatment, seemed to try to sign a will placed before him in bed but had difficulty grasping the pen, which slipped from his hand at least five times before a friend of his wifes held his hand or wrist to steady it. The resulting signature was the product of both peoples efforts but with no way to ascertain the relative contributions of each. The testator did not resist but never expressly asked for assistance. (DeThorne I, at p. 781-782.) This was held invalid under case precedent, the court reasoning: "Where the actual signature of the testatrix [sic] is physically influenced by a third party, the danger of fraud is present. It is not alleviated by the fact that Robert may, in some degree, have also influenced the signature." (Id. at p. 783.)
DeThorne I was a two-to-one decision by the Wisconsin Court of Appeals, and a dissenter argued that the assistance was valid under state supreme court precedent in Estate of Komarr (Wis. 1970) 46 Wis.2d 230 (Komarr ), which had found too conducive to fraud assistance given to a testator who had a paralyzed hand, what the high court likened to an inanimate object. Here, the dissent stressed, the testator was assisted but had physical volition, unlike the testator in Komarr. (DeThorne I, supra, 471 N.W.2d at pp 783-785 (dis. opn. by Sundby, J.))
The dissents reasoning gained ascendancy in DeThorne v. Bakken (Wis.App. 1995) 539 N.W.2d 695 (DeThorne II), a case not cited by petitioners. There, the Court of Appeals unanimously upheld a defense judgment in a malpractice action brought against the attorney who had supervised the will execution invalidated in DeThorne I. (DeThorne II, at pp. 696-698.) This panel, differently constituted except for the author, agreed with the trial court that there was no breach of professional duty because a reasonable attorney in the circumstances would not have anticipated DeThorne Is restrictive reading of Komarr. (DeThorne II, at pp. 698-700.) "The irony of our result in this case," the panel noted, "does not escape us." (Id. at p. 700.)
While the majority in Thorne I said it did not reach "the question of whether any unrequested physical assistance in the signing or making of a will is impermissible" (DeThorne I, supra, 471 N.W.2d at p. 783), it offered no guidance beyond its conclusion on the facts and its broadly prohibitive reasoning. Our facts are distinguishable. Laura required less assistance, being able to take and hold the pen and move toward the power of attorney before receiving any assistance. This evidence of volition certainly lessened the risk of fraud that troubled the majority in DeThorne I, as does the fact that attorney Balogh privately examined Laura, immediately beforehand, about her capacity and intentions.
Beyond its factual differences, we question the soundness of DeThorne Is seemingly broad result. The case has so far escaped scrutiny by the Wisconsin Supreme Court but has been criticized elsewhere (see Leslie, The Myth of Testamentary Freedom (1996) 38 Ariz. L.Rev. 235, 267 & fn. 162) and, as DeThorne II highlights, is arguably inconsistent with Wisconsin high court precedent. In our view, its broad prohibition of assistance is also impossible to reconcile with this statement by our own Supreme Court: "The fact that another person did the writing or guided the testators hand because he was physically weak comes within the provisions of [the code], and raises no presumption against the due execution of the will. [Citation.] . . . The question is not whether the testator himself, or another person at his request, signed the will at the end thereof, but whether the testator had sufficient understanding to direct the disposition of his property." (Estate of Holloway, supra, 195 Cal. at p. 719, italics added.)
We uphold the trial courts finding of validity in the assistance rendered to Laura in executing the power of attorney.
DISPOSITION
The judgment is affirmed.
We concur:
Haerle, J.
Lambden, J.