The Impact of a Survivorship Requirement on a Holographic Will

    In 2009, the California Court of Appeals heard an appeal from the probate court's order denying thepetition of grandchildren to determine survival and to determine persons entitled to distribution of the estate of their grandmother, Gladys Lensch under Probate Code sections 220, 21109, and 21110.

     Lensch had a simpleholographic will which stated in full: "I Gladys Lensch do hereby declare, being of sound mind, that my estate be equally divided between my daughter Claudia and my son Jay. Claudia being married has 2 daughters, and my son by a previous marriage has 2 sons. They will provide for the well being of my grandchildren in the event of my death or serious incapacity due to lengthy illness. God Bless the Family. Gladys Clausen Lensch May 10 1993."

     However, shortly after Lensch died, her son, Jay was found dead in his home after an apparent suicide. The time of death for Lensch's son was unclear. As such her grandchildren filed a petition stating that they should take in the place of their father, Jay. The trial court denied their petition on the basis that Lensch's will did not require her son Jay to survive her in order to take under her will.

     The Appellate court reviewedProbate code 21109 and 21110 and found that Lensch's bequest was not conditioned on her son Jay's survival, and that she did not make an alternate disposition. Therefore pursuant to section 21109 and 21110 if Jay died before Lensch then her bequest to Jay fails under section 21109 and passes to Jay's children under section 21110. The Court concluded that, although the trial court was correct in finding that Lensch's will contained no survivorship requirement, it erred in denying appellants' petition on this basis and an evidentiary hearing was required to determine survivorship.