Estate Of Ben-Ali

216 Cal.App.4th 1026 (2013)

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Nature of the Case

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Facts

Joseph (H1), born in 1968, was the only biological child of Hassan Ben-Ali (H) and Ann Jackson (W). H and W were married in 1973 and divorced in 1974, but maintained a relationship over the next 34 years. H also had a son from a different relationship, D'Artagnan Lloyd, with whom H had little contact before 2006. H was a very shrewd and savvy real estate investor. H owned an apartment building at 2235 Ashby Avenue in Berkeley, which H had transferred to H1 in approximately 1993, perhaps to avoid losing the property to the IRS. In 1995, W moved into an apartment in the Ashby building. H continued to handle all aspects of managing the property despite title being in their son's name. On August 3, 2002, H1 married Wendelyn Eyvonne Wilburn (W1). H opposed the marriage. He believed that W1 just wanted to obtain a portion of the Ashby property. At the time of the marriage, H1 had a young daughter from a previous relationship, Brittany Desmond, and W2 had a son. W1 was aware when she married H1 that he had spent time in prison and had a history of drug problems. W1 was on a business trip in Las Vegas, and H2 disappeared. H told her H1 had decided to leave her and start a new life somewhere else. W1 did not believe H. No one reported H1's disappearance to the police. Between June 2004 and December 2008, H continued to manage H1's apartment building forging H1's name on checks and refinanced the property in the amount of $600,000 by forging H1's signature and the signature of a notary. In November 2008, H admitted to his attorney that H1 had died of a drug overdose. He had taken H1's body to the property and hidden it in the wall of a storage area of the building. H stated that a person who had assisted him in the removal and concealment of the body was extorting substantial sums of money from him by threatening to reveal what had happened. H committed suicide on December 15, 2008. Two days later, H1's body was discovered. H left a will, not contested in this proceeding, in which he named his former spouse, W, as the sole beneficiary of his estate. In H's possessions police found a purported will of H1, bearing the apparent signatures of H1 and two attesting witnesses. It was dated August 16, 2002, two weeks after H1 and W1 were married. It recited that H1 had one living child, Brittany Desmond. W1 was to receive all of H1's personal property, and H was to receive all other assets. Desmond “has been provided for by a life insurance policy on H1's, which is held in trust for her by H” H was identified as executor of the estate. One name and address on the attestation clause was illegible, and the person was never identified. The primary issues were whether the will was duly executed according to the requirements of section 6110, subdivision (c)(1) or, if not, whether the will's proponents proved by clear and convincing evidence under section 6110, subdivision (c)(2) that H1 intended the instrument to constitute his will when he signed it. A forensic document expert believed with a high degree of certainty H1's signature on the will was authentic based on comparing it with known signatures. He believed W1's signature was “probably” genuine based on comparison with one known signature by W1 in which she signed as “Wendy Ben-Ali.” W1's forensic document expert claimed they were not genuine. W1 testified H1 asked her to sign something in 2004, which he told her was a medical release needed. W1 never lived at the Ashby building and did not use or sign documents with the surname “Ben-Ali,” except for one application she filled out with H1 on August 2, 2002. The court accepted that both signatures were genuine. It held that ills are often executed in anticipation of taking a trip, and this will was executed that morning. The court held the regular and complete attestation clause was prima facie evidence of the validity of the unknown signature. Because W1 had a financial interest in having the will invalidated, her testimony must be viewed carefully. W1 appealed.