The Perils of Creating Your Own Estate Plan

by Ervin Cohen & Jessup LLP
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Who says trust and estate law isn’t interesting?  The case of Ivan Golde v. Wedelyn Eyvonne Wilburn reads like an episode from Dateline.  Drugs, extortion, forgery, and a mysterious death are all facts underlying the Court of Appeal’s decision in this will contest dispute.

Hassan Ben-Ali (“Hassan”) had a son by the name of Taruk Joseph Ben-Ali (“Taruk”).  Hassan was a shrewd but savvy real estate investor who allegedly transferred an apartment building to Taruk to avoid losing the property to the IRS.

Taruk mysteriously disappeared in 2004.  When his wife, Wedelyn Wilburn (“Wilburn”), reached out to Hassan to locate his whereabouts, she was told that Taruk had decided to leave her and start a new life somewhere else.  Meanwhile, Hassan continued to manage the apartment building in Taruk’s name.  He collected rents, forged Taruk’s name on checks drawn against Taruk’s bank accounts, and refinanced the property to the tune of $600,000 by forging Taruk’s signature and the signature of a notary.

Things came to a head in 2008 when Hassan confessed to his lawyer, Ivan Golde, that Taruk had supposedly died of a drug overdose in 2004.  He explained that he didn’t want to report the death for fear of losing the apartment building and that he had taken Taruk’s body to the apartment building and hid it in the wall of a storage area.  Hassan also claimed that a person who had assisted him in the removal and concealment of Taruk’s body was extorting money from him by threatening to reveal what happened.

Shortly after confiding to the lawyer, Hassan committed suicide while the police were visiting his apartment building.  Taruk’s body was discovered two days later in the wall of the apartment building as Hassan had described to his lawyer.

The Police found Taruk’s purported will bearing his signature and that of two witnesses among Hassan’s possessions.  One of the witness signatures to the will was allegedly Wilburn’s.  The other signature was illegible and the identity of that person was never determined.  The will provided that Taruk’s wife was to receive all of Taruk’s personal property and Hassan was to receive all of the other assets.  Hassan was identified as the executor of Taruk’s estate and Hassan’s lawyer Ivan Golde was named as the alternate executor.

Hassan’s lawyer filed a petition to probate the will and Wilburn objected to the petition.  The issue at trial revolved around the validity of Taruk’s will.  The trial court granted the lawyer’s petition to probate the will and Wilburn challenged that ruling at the Court of Appeal.

In a published decision, the Court of Appeal reversed the trial court’s decision and held that the will was invalid because it failed to satisfy all of the requirements set forth in Probate Code Section 6110.  Probate Code Section 6110 requires that a will be signed by the testator and witnessed by two persons, each of whom were present at the time of signing and understood that the instrument they witnessed and signed was the testator’s will.  A will can also be admitted if the above-mentioned requirements have not been met but it is shown, by clear and convincing evidence, that the testator intended the document to be his will.

As part of its opinion, the Court of Appeal found that there was no evidence to validate the signature of the unidentified witness.  The Court of Appeal further held that the proponents of the will failed to show, by clear and convincing evidence, that Taruk intended this instrument to constitute his will.  There were no witnesses who knew anything about the will or the circumstances of its execution including Taruk’s wife; there was no evidence concerning the will’s preparation, who drafted it, or who Taruk consulted about its phrasing; no original or copy of the will was found at Taruk’s residence or among his belongings; and the will was found among the belongings of Hassan who was willing to go to great lengths of fraud and dishonesty in order to protect his financial interests and retain control of the property.

This case highlights why drafting your own will can be risky.  Although the facts of this case strongly suggest that the Court of Appeal reached the right decision (i.e., this will was likely created by Taruk’s father), most people are unfamiliar with the requirements of creating a will which generally require strict adherence.  If you are serious about where your property goes after death, consulting with a lawyer about the creation of a will or a trust is of paramount importance.  If you do not adhere to these requirements, the Court may apply the rules of intestacy to your situation to decide who gets your assets.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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