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

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

B 027859.

Decided: October 29, 1987

Wells, Barber & Hamor and Virgil R. Wells, Los Angeles, for petitioner. No appearance for respondent. Adams, Duque & Hazeltine, Byron O. Smith, 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.1

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., former § 2016, sub. (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 decedent's last will.

 We do not agree.  Probate Code section 328.3 authorizes the superior court to deny probate to a will which is the product of undue influence.   The statute does not condition such a denial on the existence of a section 370 will contest.   To hold otherwise would significantly undermine the important policy of section 328.3.   In determining a petition for probate of a will, the superior court has a responsibility to protect the interests of all persons interested in the estate.  (Estate of Relph (1923) 192 Cal. 451, 459, 221 P. 361.)   Even in the absence of a will contest, the court must find that the testator was of sound mind and not acting under duress, fraud, or undue influence, though it need not state those findings in writing if they are necessarily subsumed in the judgment or order.  (Estate of Henderson (1925) 196 Cal. 623, 637, 638, 238 P. 938.)

 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) to “parties.”  (Code Civ.Proc. §§ 2017, subd. (a), 2019, subd. (a);  former §§ 2016, sub. (a), 2030, sub. (a), 2033, subd. (a).)  The Code of Civil Procedure does not define the term “party.”

Likewise, the Probate Code does not define “party.”   Surely, though, Philip properly concedes that Elbert is a party.   An heir and beneficiary who has entered his appearance in a probate proceeding commenced by the filing of a petition for probate, and who has filed his own petition for probate of a different will, is entitled, by Probate Code section 1233 and the Code of Civil Procedure, to discovery.


The Supreme Court's order granting review directed us to reconsider whether the question of undue influence may be resolved in any proceeding other than a statutory will contest, in light of three cited Supreme Court decisions and in light of the right to jury trial applicable in proceedings related to will contests.

Swift v. Superior Court (1952) 39 Cal.2d 358, 247 P.2d 6 held that the proponent of a will whose validity is challenged is entitled to jury determination of the issues framed by the challenge.   The court ordered issuance of a peremptory writ prohibiting the probate court from proceeding with the hearing on the petition to admit the will to probate in the absence of a jury.

Estate of Henderson (1925) 196 Cal. 623, 238 P. 938 affirmed an order of the superior court admitting a will to probate.   A will contest had been filed, and the court had impaneled a jury to hear the contest, but apparently the court discharged the jury at the conclusion of the preliminary proof of the will's validity, when the contestant announced she was abandoning her contest.

These two cases do not discuss the parties to, nor discovery in, probate proceedings.

Estate of Relph (1923) 192 Cal. 451, 221 P. 361 also affirmed a judgment admitting a will to probate.   The opinion discusses the order of proof at the combined hearing of a petition for probate and a will contest.   The court also ruled on an issue involving the now archaic rule that a party may not impeach his own witness.   On this point, the court held that the party who called a certain witness during trial of the will contest was not permitted, in connection with the will contest, to impeach his credibility by extrinsic evidence, notwithstanding that the proponent of the will had earlier herself called that witness to testify in support of her petition for probate of the will.   The court reasoned that the witness was, with respect to the will contest, called by the contestant, not by the proponent of the will.   This ruling, and the decision with respect to the order of proof at the combined hearing, were explained by noting that a petition for probate of a will and a contest of the will are “separate and distinct proceedings.”

This characterization should not be expanded beyond its context, for probate is an in rem proceeding (Estate of Relph, supra, 192 Cal. at p. 458, 221 P. 361;  Estate of Henderson, supra, 196 Cal. at p. 636, 238 P. 938);  the res is the decedent's estate.   All probate procedures relate to that res, and the statement that they are “separate and distinct” must be read with that in mind.   Indeed, in its later decision in Swift, discussing the right to jury trial, the court declared that the hearing on a petition for probate is supplementary to and in aid of the trial of the will contest, and is not independent of it.  (Swift v. Superior Court, supra, 39 Cal.2d at p. 363, 247 P.2d 6.)

Estate of Relph also contains the following statement, referring to the hearing on a petition for probate of a will:  “The contestants are not parties to this proceeding and have no right to appear therein․”  (192 Cal. at p. 459, 221 P. 361.)   This statement was unnecessary to the decision of the case, since—as the court itself acknowledged—the contestants had appeared and been permitted to cross-examine the proponent's witnesses.   In addition, because this statement arises in a context so different from the issue presented here, we do not deem it controlling.   Elbert did enter an appearance in the proceeding commenced by Philip's petition for the probate of the will favoring Philip;  Elbert also became a party by filing his own petition for probate of an earlier will.

Finally, reading these three decisions together for their implications, they seem to stand for the propositions that the factual issues raised by a challenge to the validity of a will must be determined by a jury, and that proof of the existence and prima facie validity of a will is an issue addressed to the court, and is made in a hearing supplementary to the hearing of a will contest, if one has been filed.

These decisions may conceivably have some effect on future proceedings in this case.   In particular, Philip contends Elbert's actions have already amounted to a contest within the meaning of the in terrorem clause of the will Philip offered for probate, and he argues that before this court can consider the relief sought in Elbert's writ petition, we must so rule.   No such issue is before us, however.   No section 370 contest has been filed, and we express no view on the proper course of subsequent proceedings in the superior court.   The only issue presented by Elbert's petition for a writ is whether the trial court erred in denying his motion to compel Philip to give his deposition.   The mere taking of a deposition will neither derogate the right to jury trial of will contests nor adjudicate the question of undue influence.


Philip makes several arguments based on considerations of judicial administration and public policy.2

First, Philip contends Elbert seeks “unfettered discovery.”   We do not so regard one deposition.   In addition, the superior court is not powerless to prevent harassment or oppression in discovery.  (See Coberly v. Superior Court (1965) 231 Cal.App.2d 685, 691, 42 Cal.Rptr. 64.)

Secondly, Philip tells us that ordering this deposition “in effect permits any person interested in an estate to freeze totally its adminstration [sic] merely by serving discovery,” undermining the public policy favoring prompt disposition of probate proceedings.   We cannot imagine that a party's reasonable efforts to discover the truth are likely to throw the judicial system into chaos.   Indeed, any delay here is attributable only to Philip's own efforts to avoid giving his deposition.

Finally, Philip contends a ruling in Elbert's favor will vitiate in terrorem clauses.   Courts enforce such clauses to avoid unnecessary litigation and effectuate the wishes of testators, not because of any public policy favoring wills which are the product of undue influence.   In reaching our decision, we have weighed these competing policies, as well as the policies favoring liberal discovery and disfavoring forfeitures, and the court's own interest in assuring that its judgments are based on truth.

In the circumstances of this case, Philip's position is particularly lacking in equities.   If Philip did exert undue influence, his position is an attempt to conceal this information from the probate court.   If he did not, he is demanding that Elbert forfeit his inheritance in order to find out.   Under these circumstances, it was an abuse of discretion for the superior court to deny Elbert the deposition he seeks.

Certainly the record creates particular suspicion of undue influence by Philip.   It contains three wills, dated February 1982, August 1982, and February 1984.   The first appears to have been prepared by an attorney (or at least copied from an attorney's form), and the latter two are holographic.   Apparently Philip has a law degree, and the relative degree of sophistication of the last will, especially compared to the simplicity of the earlier holographic will 3 , suggests Philip may have dictated it to his mother.   In the last will the testator explains that her reason for leaving Philip at least $375,000 more than any of his siblings is to compensate for the fact that he received no inheritance from his father, who died in 1954.   It is understandable that Elbert should like to ask Philip how their elderly mother came to decide for the first time in 1984 to rectify an injustice done him thirty years earlier.

The alternative writ is discharged.   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.



1.   We granted the petition on July 3, 1987, by an opinion formerly published at 193 Cal.App.3d 341, 238 Cal.Rptr. 263.   The Supreme Court granted Philip's petition for review on September 25, 1987, and transferred the petition to us, with directions to vacate our decision, issue an alternative writ, and reconsider the petition.   We have complied.

2.   We did not deem it necessary to address these contentions in our earlier opinion.   Because Philip has reiterated them in his petition for review and in his return to the alternative writ, however, we will discuss them here.  (See Krueger v. Superior Court (1979) 89 Cal.App.3d 934, 939, 152 Cal.Rptr. 870.)

3.   For instance, the last will states in part:  “I want [Philip] to be in the same economic position as if he had received an inheritance at [the time of his father's death] equal in amount and kind to what his other brothers and sister then received.  [¶] ․ This amount shall go to Philip free and clear of any taxes, which taxes shall be paid from the rest of the estate that is not his portion.  [¶] ․ The remainder of my estate shall go in equal shares to my four children ․ or to their respective heirs if they do not survive me.  [¶] The executor of my estate shall be Philip Stephen Hensley and shall not be required to post any bond.  [¶] If anyone contests this Will or its validity, such person shall receive nothing from me as if that person had died before me without surviving children.”The earlier holographic will is noticeably shorter and less sophisticated.