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Court of Appeal, Second District, Division 2, California.

Elbert E. HENSLEY, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; Philip S. HENSLEY, Real Party in Interest.


Decided: July 03, 1987

Wells, Barber & Hamor and Virgil R. Wells, Los Angeles, for petitioner. No appearance for respondent. Adams, Duque & Hazeltine, C. Forrest Bannan, and Lesley C. Elliott, Los Angeles, for real party in interest.


Petitioner seeks a writ of mandate establishing his right to obtain discovery in a probate proceeding.

On January 9, 1987, real party Philip S. Hensley filed a petition for probate of his mother's holographic will.   That will makes property dispositions favoring Philip over decedent's other three children.   It also contains an in terrorem clause which, by its terms, takes effect “if anyone contests this Will or its validity.”

One of decedent's other children, petitioner Elbert E. Hensley, entered an appearance in the proceeding commenced by Philip's petition for probate.   Later, on May 1, 1987, Elbert filed a petition for probate of two earlier wills, in which the decedent had treated her four children substantially equally.

Elbert sought to take Philip's deposition.   Philip declined.   Elbert then moved for an order compelling Philip to appear for deposition.   The trial court denied the motion, sustaining Philip's position that Elbert has no right to discovery until he makes himself a “party” by filing a will contest pursuant to section 370 of the Probate Code.   Elbert then filed this petition for a writ.

In his written opposition to the petition, Philip explicitly abandons his contention that Elbert is not a party to the proceeding commenced by Philip's petition for probate.   He argues, instead, that any facts Elbert might seek at the proposed deposition would not be “relevant to the subject matter” of Philip's petition for probate, and would therefore fall beyond the statutory scope of discovery.  (See Code Civ.Proc., § 2016, subd. (b).)  Philip posits that the sole issue raised by his petition for probate (in the absence of a section 370 will contest) is whether the will he offered for probate was the decedent's last will.

 We cannot agree.   The superior court is not required to admit a will to probate if no one files a contest.   To the contrary, section 329 of the Probate Code provides that in such a situation the court may admit the will to probate.   Section 328.3 specifies that the court may deny probate to a will which is the product of undue influence;  such a denial is not conditioned on the existence of a section 370 will contest.   To hold otherwise would significantly undermine the important policy of section 328.3.

Section 1233 of the Probate Code makes certain portions of the Code of Civil Procedure, including the discovery provisions and those governing civil actions, applicable to all matters of procedure in probate proceedings.   The right to discovery is granted by the Code of Civil Procedure (with a minor exception not applicable here) only to “parties.”  (Code Civ.Proc., §§ 2016, subd. (a), 2030, subd. (a), 2033, subd. (a).)  (This rule will not change when the new discovery statute becomes effective on July 1, 1987.   See new Code Civ.Proc. §§ 2017, subd. (a), 2019, subd. (a).)  Though the Code of Civil Procedure does not define the term “party,” it does provide that both actions and special proceedings are judicial remedies prosecuted by one “party” against another “party.”  (Id., §§ 20–23, 308, 1063.)

A probate proceeding, though it does not appear among the several special proceedings defined by Part 3 of the Code of Civil Procedure, is a special proceeding (Coberly v. Superior Court (1965) 231 Cal.App.2d 685, 690, 42 Cal.Rptr. 64), the direct product of the statutory control given the superior court over the administration of decedents' estates.  (Prob.Code, § 300.)

 The Probate Code, like the Code of Civil Procedure, does not define “party.”   It does specify that in a section 370 will contest, “the contestant is plaintiff and the petitioner is defendant.”  (Prob.Code, § 371.)   It also provides that in any probate proceeding involving an issue of fact, “[t]he party affirming is plaintiff, and the one denying or avoiding is defendant.”  (Prob.Code, § 1230.)   If an heir, having entered his appearance in a probate proceeding and having filed his own petition for probate of a different will, still had to file a will contest to become a “party,” the section 1233 reference to the discovery provisions of the Code of Civil Procedure would be narrowed to near insignificance.   We conclude Philip has properly conceded that Elbert is a party.   Elbert is entitled to the deposition he seeks.

This is a proper case for issuance of a peremptory writ in the first instance.  (Code Civ.Proc., § 1088;  Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177–180, 203 Cal.Rptr. 626, 681 P.2d 893.)   All parties were informed this court was considering issuing a peremptory writ in the first instance.   The matter having been fully briefed, issuance of an alternative writ would add nothing to the exposition of the issues.

Let a peremptory writ of mandate issue, directing respondent to vacate its order of May 29, 1987, denying petitioner's motion to compel attendance at deposition, and to enter a new order granting the motion. Our stay order filed June 4, 1987, is dissolved.


ROTH, P.J., and GATES and FUKUTO, JJ., concur.