Failure To Authenticate One Witness’s Signature Dooms Admission Of Will To Probate

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A court of appeal recently addressed whether a will was properly admitted to probate.  The will contained a regular and complete attestation but only the genuineness of the signature of the decedent and one of the two subscribing witnesses could be established.  The court held that proof of the signature of the decedent and only one of the two witnesses does not establish a prima facie case of due execution of a will.  (Estate of Taruk Joseph Ben-Ali (--- Cal.Rptr.3d ----, Cal.App. 1 Dist., May 29, 2013).

Facts

Hassan Ben-Ali (“Hassan”) owned a number of properties but experienced financial problems.  Around 1993, Hassan transferred ownership of an apartment building to his son, Taruk Joseph Ben-Ali (“Taruk”).  Hassan may have transferred the property to avoid losing it to the IRS.  Hassan continued to handle all aspects of managing the apartment building.

Taruk married Wendelyn Wilburn (“Wilburn”) on August 3, 2002.  Wilburn last spoke to Taruk by phone on June 8, 2004.  When Wilburn returned from a business trip, Hassan told her that Taruk had left her to start a new life somewhere else.  Hassan continued to manage the apartment building and collect rent.  He forged Taruk’s name on checks and refinancing documents.  In November 2008, Hassan told his attorney, Ivan Golde, that he had found Taruk dead of a drug overdose in 2004.  Because Hassan feared he would lose the apartment building, he took Taruk‘s body to the apartment building and hid it in a wall. 

Hassan committed suicide in December 2008.  Taruk’s body was discovered on the premises of the apartment building.  The police believed Taruk had died in June 2004.  The police found among Hassan’s possessions a purported will for Taruk.  The document was dated August 16, 2002, which was the day before Taruk and Wilburn left for a honeymoon in Hawaii.  The will provided that Taruk’s “wife” was to receive all of his personal property and Hassan was to receive all other assets.  The will named Hassan as executor and Golde as alternate executor.  The attestation clause of the will stated “it was signed by Taruk in the presence of two witnesses who also signed in the presence of each other and that Taruk declared to them the document was his ‘Last Will and Testament.’”  Although Wilburn was listed as one witness, the name and address of the second witness were illegible and the identity of this witness was never uncovered.   Wilburn denied signing or witnessing the will.

Taruk’s brother and Golde sought probate of the will.  Wilburn and Taruk’s daughter contested the validity of the will.  The probate court admitted the will to probate finding “a rebuttable presumption of due execution” arising “as a matter of law from the regular and complete attestation clause on the signature page of the will, buttressed by evidence of the genuineness of the signatures of Taruk and Wilburn.”

Decision

To be valid, a will must be signed by the testator and, pursuant to Probate Code section 6110 (c)(1), it must also be witnessed by being signed “by at least two persons each of whom (A) being present at the same time, witnessed either the signing of the will or the testator’s acknowledgment of the signature or of the will and (B) understand that the instrument they sign is the testator‘s will.”  Here, the probate court found that the regular and complete attestation clause was prima facie evidence that the unknown witness’s signature was valid.  The court of appeal disagreed.  It is proof of the decedent’s and the witnesses’ signatures that establishes a prima facie case of due execution.  Proof of the signature of only one of the witnesses and the decedent does not.

The testimony of a subscribing witness is not required by the Evidence Code to authenticate a writing.  Witness signatures can be authenticated through comparison by the trier of fact or through the testimony of an eyewitness, expert, or lay person who is familiar with the witness’s handwriting.  There was no evidence produced in this case about the signature of the unidentified witness.  The court found that there was “no adequate evidentiary basis for determining the illegible entry on the signature page of the will was in fact a signature and, if so, that it was made by a person distinct from the testator who was competent, present during the execution, and understood the instrument to be a will.”   Therefore, the probate court erred when it admitted the will to probate on the basis of section 6110, subdivision (c)(1).

A will not executed in compliance section 6110, subdivision (c)(1) may be admitted to probate under subdivision (c)(2) “if the proponent establishes by clear and convincing evidence the testator intended the instrument to constitute his will at the time he signed it.”  The court concluded that no such finding could be made in this case.  Taruk was only 34 years old at the time the will was allegedly executed.  There were no witnesses that knew about the will or its execution.  There was no evidence Taruk has spoken with anyone regarding his intentions or that Wilburn had told anyone that Taruk had not provided for her in his will.  No original or copy of the will was found among Taruk’s belongings.  The will was found in Hassan’s belongings and evidence showed that he was willing not only to engage in fraud and dishonesty but to hide Taruk’s body behind a wall to protect his financial interests.  Also, the expert who authenticated Taruk’s signature was not informed Hassan had previously forged Taruk’s signature. 

The court concluded no reasonable fact finder could conclude that Taruk intended the document to constitute his will.  The court reversed the judgment of the probate court and directed it to enter a new judgment denying the admission of the will to probate.