Part IV - Estate of Taruk Joseph Ben-Ali

In continuation of our blog on the Estate of Taruk Joseph Ben-Ali, Wendelyn Wilburn (Taruk's wife, contestant and appellant) appealed the probate court's decision admitting Taruk's will to probate. The appellants contend that (1) the trial court made a mistake in applying a presumption of due execution since Golde failed to establish the genuineness of the signatures of both witnesses which is in contravention with Probate Code section 6110, and (2) Golde also failed to establish by clear and convincing evidence that Taruk intended the instrument to be his will.

The Court of Appeal agreed with the appellants and reversed the probate court's judgment. The Court of Appeal believes that the rule in California and elsewhere is that proof of the signatures of the decedent and the witnesses makes a prima facie (referring to a lawsuit or criminal prosecution in which the evidence before trial is sufficient to prove the case unless there is substantial contradictory evidence presented at trial) case of due execution. However, proof of the signature of the decedent and of only one of the witnesses does not. In this case, there was no adequate evidence for determining the unreadable entry on the signature page of the will was in fact a signature and, if so, that it was made by a person separate from the person who was competent, present during the execution, and understood the instrument to be a will. The Court of Appeal also found that no clear and convincing evidence was provided indicating that Taruk intended the instrument to be his will since he has not spoken of the will or his testamentary intent to anyone and neither was an original or copy of the will found in his residence or among his belongings. Meanwhile, it has been determined that Hassan (Taruk's father) would go to extremes of fraud and dishonesty in order to retain control of the Ashby property, including but not limited to fraudulently forging Taruk's signature. Accordingly, the Court of Appeal reversed the judgment and sent it back to the probate court for further action.

*This blog entry was not written by an Attorney and should not be construed as professional legal advice.

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