LARSEN v. LARSEN (1984)

William Edwin Larsen appeals from a judgment forfeiting his interest in his mother's estate because he violated the in terrorem clause in her will. We affirm the judgment.

By will dated July 28, 1973, Mother Larsen specifically bequeathed one parcel of real property to her son Edwin and two parcels of real property to her daughter Alberta. The residue of her estate was to be divided equally between the siblings.¹

The will contains two provisions which are pertinent here: “Any apparent inequality in value of the properties in favor of my daughter [Alberta] is intended to equalize the gifts my children shall have received from me, in that my son has received substantial amounts from me during my lifetime,”² and: “If any beneficiary under this Will in any manner, directly or indirectly, contests or attacks this Will or any of its provisions, any share or interest in my estate given to that contesting beneficiary under this Will is revoked and shall be disposed of in the same manner provided herein as if that contesting beneficiary had predeceased me without issue.”

When his mother died in 1978 Edwin presented a creditor's claim to her estate³ seeking $41,786 for services to his mother during her lifetime and for travel expenses incurred by him in rendering those services. The creditor's claim expressly states: “All of the foregoing services were rendered in accordance with an oral agreement between claimant and decedent by which she agreed to devise certain property in exchange therefor and which was breached by decedent.”

Alberta, the executrix, denied the claim. On January 24, 1979, Edwin filed a “Complaint for Services Rendered.” His complaint expressly states: “That during or about the month of April, 1971, the decedent, Mary Cecelia Larsen, made a representation to claimant that if he would continue during the time that he lived away from Lompoc, California, return to her place of residence in Lompoc, California, and continue to perform all of the services that he had been performing concerning her business and her personal welfare, she would leave a certain parcel of real property to him by her Will in addition to the one-half of the remainder of her estate. Thereafter, in reliance upon the said representation, claimant rendered the said services so mentioned, each of which was of major benefit to the said decedent. That it was determined that at the time of the death of the said decedent she did not do what she had previously represented and bequeath the said parcel of real property to claimant.”

The Estate answered and cross-complained, seeking a declaration that Edwin's legacy had been forfeited pursuant to the in terrorem clause. The parties then conducted (from what appears in the record in SM 26798) somewhat “hostile” discovery until early 1981.

In April of 1981, the Estate, in response to a motion to dismiss the cross-complaint on the grounds that only the probate court had jurisdiction to determine forfeiture, if any, dismissed the cross-complaint on its own motion. It was then that the executrix filed the Probate Code 1080 petition in the Estate proceedings (SM 24657)⁴ requesting the court to determine that, by the filing of his complaint, Edwin had forfeited his right to receive any part of the estate under the will. On January 1, 1983, the probate court determined that the language quoted above constituted an “indirect” attack upon the will in violation of its in terrorem clause, and ordered Edwin's legacy forfeited.

Edwin filed this appeal. He also filed an at-issue memorandum in his suit on the creditor's claim (SM 26798). The Estate responded with motions to compel the discovery which Edwin had consistently failed to provide since 1980.⁵ The court's first order required Edwin to produce the documents within ten days or suffer sanctions. Edwin failed to comply. The court then imposed sanctions of $400 and ordered Edwin to comply under threat of dismissal of his complaint. Edwin dismissed the action himself.

Edwin informs us that “this case presents a single, straightforward issue of law: Is a beneficiary's suit on a creditor's claim for services to a decedent a ‘contest’ of or ‘attack’ upon the decedent's will, compelling forfeiture of the claimant's gifts under the will?” We disagree.

“We recognize that while no-contest clauses ‘are to be given effect according to the intent of the testator, yet it is also the rule … that such a provision—being by way of forfeiture and condition subsequent—is to be strictly construed and not extended beyond what was plainly the testator's intent.’ (Estate of Bergland, 180 Cal. 629, 633 [182 P. 277, 5 A.L.R. 1363]; see also Estate of Miller, 230 Cal.App.2d 888, 901-902 [41 Cal.Rptr. 410], and cases collected.) By the same token, however, we must not rewrite the testatrix's will in such a way as to immunize legal proceedings plainly intended to frustrate her unequivocally expressed intent from the reach of the no-contest clause.” (Estate of Kazian (1976) 59 Cal.App.3d 797, 802, 130 Cal.Rptr. 908.)

“Whether there has been a contest within the meaning of the language used in a no-contest clause is to be determined according to the circumstances in each case.” (Estate of Friedman (1979) 100 Cal.App.3d 810, 817, 161 Cal.Rptr. 311; Estate of Basore (1971) 19 Cal.App.3d 623, 631, 96 Cal.Rptr. 874.) “The answer cannot be sought in a vacuum, but must be gleaned from a consideration of the purpose that the testatrix sought to attain by the provisions of her will.” (Estate of Kazian, supra, 59 Cal.App.3d at p. 802, 130 Cal.Rptr. 908.)

There may be instances where a beneficiary of a will who is also a legitimate creditor of the estate could file a creditor's claim without violating an in terrorem clause. However, the facts in this case support the implied finding that Edwin was using his creditor's claim to disguise his attack upon the will.

Mother Larsen specifically bequeathed two parcels of property to Alberta (valued at $26,000 and $47,500) and one parcel to Edwin ($58,500). She executed her will more than two years after Edwin began to render the services upon which his creditor's claim was based. She specifically stated that any apparent inequality in the value of the properties in favor of Alberta was intended to equalize the gifts which her children received from her because Edwin had received substantial gifts during her lifetime.

Except for the parcels of real property and the small residue, the balance of her property passed to the children outside of probate by way of joint tenancy bank accounts. Thus, in order to satisfy Edwin's $41,786 creditor's claim, one of the parcels of real property would have to be sold. That would plainly frustrate Mother Larsen's testamentary intent.

Edwin's attempt to distinguish In re Kitchen (1923) 192 Cal. 384, 220 P. 301 is unavailing. There, Mrs. Kitchen's will left to her niece, Lulu, the sum of $2,000 and various jewelry and other personal property. Lulu filed a creditor's claim for $25,000 based upon an alleged express oral promise by Mrs. Kitchen that, if Lulu would live with her and “act as a daughter and perform the duties of a daughter” (which Lulu had done), Mrs. Kitchen would “amply provide for and adequately compensate” Lulu in her will. When Lulu's claim was rejected, she filed suit. That suit constituted an “attack” upon the will. (Id., at p. 389, 220 P. 301.)

Edwin claims that we are not bound by Kitchen because the in terrorem clause here is more “narrow” than the one involved in that case. We disagree.

The in terrorem clause here prevents a beneficiary from “contesting or attacking” the provisions of the will “directly or indirectly.” That clause is sufficiently broad to include what the probate court found to be Edwin's “indirect attack.” (See e.g., In re Kitchen (1923) 192 Cal. 384, 220 P. 301; Estate of Kazian, supra, 59 Cal.App.3d 797, 130 Cal.Rptr. 908; Estate of LeFranc (1952) 38 Cal.2d 289, 239 P.2d 617; Estate of Fuller (1956) 143 Cal.App.2d 820, 300 P.2d 342; Estate of Friedman, supra, 100 Cal.App.3d 810, 161 Cal.Rptr. 311.)

Edwin himself fatally describes the nature of his suit for services rendered: “The claim is premised upon the fact that the will does not leave appellant the property he claims was promised him, and therefore that he did not receive the consideration for his services.” This argument admits that, if the will had read the way Edwin had expected it to read, as opposed to the manner in which Mother Larsen intended that it read, there would have been no creditor's claim and no lawsuit. That is the definition of a “contest of” or “attack upon” a will. (Estate of Kazian, supra, 59 Cal.App.3d 797, 802, 130 Cal.Rptr. 908; Estate of Howard (1945) 68 Cal.App.2d 9, 11, 155 P.2d 841.)

Edwin's argument also distinguishes this case from Estate of Black (1984) 160 Cal.App.3d 582, 206 Cal.Rptr. 663, upon which he relies. The alleged “contest” in Black was an action to establish an implied domestic partnership under Marvin v. Marvin (1976) 18 Cal.3d 660, 134 Cal.Rptr. 815, 557 P.2d 106. The issue was not the manner in which the testator had disposed of his property, but the fact that he had disposed of it at all. “[T]he decedent did not have the right and did not intend to dispose by will of that property which represents [the claimant's] partnership interest based on the lengthy unmarried relationship, and which she was entitled to claim regardless of the will.” (Id., at p. 591, 206 Cal.Rptr. 663, emphasis added.) See also Estate of Schreck (1975) 47 Cal.App.3d 693, 121 Cal.Rptr. 218, a claim to establish that certain property was held in joint tenancy, where the court held that no violation of the in terrorem clause occurred because: “[t]he widow merely claimed what was already her own.” (Id., at p. 697, 121 Cal.Rptr. 218.) Edwin was not claiming what belonged to him; he was quarreling with the manner in which his mother disposed of property which belonged to her. Accordingly, Black is not applicable here.

We are mindful that equity abhors a forfeiture, and that forfeiture provisions should be strictly construed. (Estate of Bergland, supra, 180 Cal. 629, 631, 182 P. 277.) However, the result in this case is not unfair. The loss of an inheritance due to the violation of an in terrorem clause is not a “forfeiture” in the strict sense of that term. An heir's “right” to take under a will is not absolute. Mother Larsen was entitled to dispose of her assets in whatever manner she chose. (Estate of Fritschi (1963) 60 Cal.2d 367, 373, 33 Cal.Rptr. 264, 384 P.2d 656.) She chose to make her legacies subject to the condition that an heir not attack her intended testamentary disposition. Edwin did not abide by that condition.

The judgment is affirmed.

FOOTNOTES

1.  The residue was insignificant—$2,094.44. The total real property was valued at $132,000.

2.  There was an inequality in the distribution of the real property; Alberta received $20,640 more than Edwin. However, when the joint tenancy bank accounts which passed outside of probate are considered, Alberta received only $9,870.60 more than Edwin.

3.  We have taken judicial notice of the entire record in the Estate of Mary Cecelia Larsen (Super.Ct. Santa Barbara Co., No. SM 24657) and Larsen v. Estate of Larsen (Super.Ct. Santa Barbara Co., No. SM 26798). (Evid.Code, § 452, subd. (d).)

4.  Probate Code section 1080 provides, in pertinent part: “Anytime after the commencement of the time for filing or presenting claims and prior to the time a petition for final distribution has been filed, the executor or administrator, … may file a petition … praying that the court determine who are entitled to distribution of the estate ․”

5.  The Estate had requested Edwin to produce documents supporting his claimed expenses pursuant to the alleged agreement with his mother. It also requested Edwin's financial records for the seven years prior to his mother's death, and itemizations of gifts and transfers of money and property from Mother Larsen to him, as well as accountings of assets which he held in joint tenancy with her.

STONE, Presiding Justice.

ABBE and GILBERT, JJ., concur.