Judge David J. Cowan, Case 18STPB11082 2023-05-05 Tentative Ruling

In summary, MV asserts by his motion as follows:

The Second and Third Grounds for not probating the Will must be denied as there is no triable issue that (a) Amy was lucid when she executed the Will, (b) that the testamentary disposition was not caused by any delusion or (c) that she lacked the mental capacity to make the Will.

The Fourth Ground for not admitting the Will must be denied as there is no triable issue as to the claim that MV acted with menace, duress, fraud and undue influence.

The Sixth Ground for denial of admission of the Will that it lacks the formalities required of a will should be rejected where (a) the Will meets the requirements of Probate Code (“PC”) sec. 6110 and (b) to the extent Amy did not comply with the instructions on the statutory form will that this would not be grounds for denying probate of the Will where the will can instead be admitted by way of PC sec. 6226(c).

In summary, Parents assert by their Opposition, as follows: There are innumerable factual issues requiring denial of the motion, including related to the involvement of MV in Amy’s life in the months leading up to her death, including his knowledge of her intent to commit suicide, admitted failure to take her to a doctor to address her depression, his not advising her family about her mental state and related actions to put money from the sale of a home under his control during this same time frame. Parents file numerous declarations with attached exhibits and bring requests for judicial notice of many documents filed in this and the related case.3 They also offer considerable evidence related to Amy’s relationship with her family, in view of the adverse statements in certain ‘suicide notes,’ as well as concerning the prior litigation with her father (that may be relevant to what occurred here.)

MV’s Reply continues to rely on the law related to the limited inferences to be drawn from a suicide as concerns testamentary capacity, asserts the limited role a delusion can have as a legal basis to set aside a will, argues why there cannot have been undue influence and in turn why the Will was duly executed.

Relevant undisputed facts are as follows:

- Amy took her own life on October 18, 2018 at the age of 43 at 435 N. Kilkea Drive in Los Angeles. (See LAPD Body Worn Video (“BWV”) that are exhibits filed in the opposition)

- Amy had an MBA degree from Pepperdine Univ. and a BS degree from Univ. So. Cal.

- Amy and MV had been married for more than 14 years when she died. They apparently married on March 27, 2004.4

- Amy and her sister Sophia Huang sold the home where Amy had been living at 611 Moreno Avenue in Los Angeles (“the Moreno property”) in January 2018. Amy then went to various temporary places to live, as well as stayed with her mother, until MV could find a place for her to live. Subsequently, and as of when she died, they were living in a rented home at the above address on Kilkea Dr. According to MV, they were in escrow to buy another home.

- Amy appears to have executed one will on or about August 9, 2018 and another one on the next day. In the August 9 will, she inserts MV’s name as Choice 1 (for a surviving spouse) as to who is to receive the balance of her assets. In the Will, she puts MV’s name as Choice 3 as the surviving “person” to receive the balance of her assets. In the August 9 will she attaches her account information whereas in the Will she does not do so.

- Witnesses on August 10, 2018 to Amy executing a will - Eunjung Shim Yang, Ronald Hering and Allyna Nguyen - each testified to Amy having a “sound mind.”

- Amy’s dentist and periodontist testified to her capacity in the weeks before execution of the Will and in the week after.

- MV was purportedly out of the country when Amy executed both wills.5

- Both wills make MV sole heir, as well as nominate him as Executor. Also attached to the August 9 will was a list of Amy’s various financial accounts and with whom she held those accounts.

- In her letter to MV (Ex. 3 to MV Decl.), dated August 13, 2018, Amy refers three times to having a mental disorder. She states relevant here: “I constantly think you are abandoning me when you are not. This is my disorder taking over me. I just cannot leave you alone. I am constantly mad at you for leaving me in reality is how I feel inside abandoned….I thought I would listen to you and [be] obedient to you but in reality I pick and choose what I want to obey and what I want to listen.” She also apologizes to him and praises him.

- In her letter to her mother, with the same date (Ex. 4 to MV Decl.), Amy again refers to having a mental disorder, blames her mother for her intended suicide and expresses regret about her mother involving her in a suit against her father related to the Moreno property and the impact it had on her relationship with her father.

- In her letter to her sister Sophia of the same date (Ex. 5 to MV Decl.), Amy once more refers to her mental disorder. She also again refers to their mother’s involving her in the suit against her father, as well as several times to regret about the mistake in deciding to sell the Moreno property, including stating: “I know the decision I made doesn’t even make sense.” She requests that her sister make sure their mother not receive any of her money.

- In her letter to her father of the same date (Ex. 6 to MV Decl.), Amy yet again refers to her having a mental disorder (the same as her mother.) She notes her mistake in sale of the Moreno property. She states her wish that her mother should not inherit any of her money. She tells him what MV means to her and that he is her husband. She regrets not having spent more time with her father.

DISCUSSION

Filed herewith, the Court has made its rulings on the evidentiary objections each side has filed to the other’s declarations.

Burdens of Proof

MV asserts that Parents have the burden of proof on their grounds supporting their will contest. Further, he contends that he is not required to conclusively negate any of those elements and instead needs merely to show that the evidence submitted by the party with the burden of proof is only likely or less than likely to be able to meet that burden, citing Aguilar v. Atl. Richfield (2001) 25 Cal.4th 826, 853. By contrast, Parents argue that MV is required to present evidence that negates an element (Guz v. Bechtel Nat’l (2000) 24 Cal.4th 317, 334 or that it will not be possible for Parents to possess needed evidence. (Aguilar, supra)

Invalidating a will on grounds of undue influence must be by “clear and convincing evidence” as opposed to merely a “preponderance of the evidence.” (Doolittle v. Exch. Bank (2015) 241 Cal.App.4th 529, 545)

Invalidating a will based on lack of capacity by contrast is by the preponderance of the evidence. (In re: Lingenfelter’s Estate (1952) 38 Cal.2d 571, 580) However, where testamentary capacity is presumed under PC sec. 810(a), i.e., at a low threshold, the burden on the contestant challenging capacity is high. (Eyford v. Nord (2021) 62 Cal.App.5th 112, 122)

MV’s burden of proof is as to “due execution” of the Will under PC sec. 8252(a); i.e., the signature of testator and witnesses makes out a prima facie case. The burden then shifts to the contestant. (Estate of Burdette (2000) 81 Cal.App.4th 948, 946)

As discussed below, even assuming the Court were to adopt the language MV relied upon, putting a greater burden on Parents and less on MV, MV fails to meet his burden and Parents meet their burden.

Applicable Law

Relevant here, PC sec. 6100.5(a) states: “An individual is not mentally competent to make a will if, at the time of making the will…

(1) The individual does not have sufficient mental capacity to do any of the following:

(A) Understand the nature of the testamentary act.

(B) Understand and recollect the nature and situation of the individual’s property.

(C) Remember and understand the individual’s relations to living descendants, spouse, and parents, and those whose interests are affected by the will.

(2) The individual suffers from a mental health disorder with symptoms including delusions or hallucinations, which delusions or hallucinations result in the individual’s devising property in a way that, except for the existence of the delusions or hallucinations, the individual would not have done.”

MV cites Lingenfelter, supra for the proposition that suicide by a decedent in and of itself does not necessarily mean that person lacked capacity to execute a will. Review of the facts of that case, however, are instructive: Mrs. Lingenfelter committed suicide a week after her husband passed away. The opinion is replete with references to the decedent’s changing (or borderline) emotional state that was at one moment sound and then if provoked quite different. The jury verdict finding her of unsound mind was based upon evidence that the Supreme Court believed should not have been considered as it was not germane to when she executed the will – in front of her attorney from whom she sought advice and who testified to her soundness of mind. The Court further held that the provisions of the will did not appear to have been influenced by any delusion and that there was logic to support the testatrix’s decision as to how to leave her estate (that disinherited the ‘natural objects of her bounty’ (her sister) but instead gave money to friends and for the care of her cat.) Significantly, the opinion also drew two dissenting opinions that there was substantial evidence to support the jury verdict she was of unsound mind.

In re: Ross’ Estate (1962) 204 Cal.App.2d 82, that MV also relies upon, is also relevant here: In Ross, summary judgment was affirmed against the will contestants who had argued a series of attempted suicides and then ultimate suicide were not enough to support a contest even with opinion of the decedent’s psychiatrist that she was of unsound mind. Her lawyer and his assistant testified she was of sound mind. The Court followed Lingenfelter, supra, and its oft quoted language that the intent of a testator “cannot be destroyed by showing a few isolated acts, foibles, idiosyncrasies, moral or mental irregularities or departures from the normal unless they directly bear upon and influenced the creation and terms of the testamentary instrument.” Id., 38 Cal.2d at 581

Here, by contrast to the facts in Lingenfelter, as set forth below, Parents are not asserting that the suicide alone is the only evidence that Amy lacked capacity or suffered delusions. There were numerous facts that create a triable issue as to whether MV’s actions or inaction and Amy’s undue dependence on him (regardless of whether that relationship was one of dependent adult abuse) created a situation whereby she made the dispositions she did in the Will that left her whole estate to MV; i.e., that her condition did directly affect the terms of the Will. Moreover, Amy’s seeming depression was not ‘on and off’ (as with persons who have dementia and can have greater lucidity at different times) but appears to have developed into an ongoing condition due to which she had also seemingly sought to commit suicide in August 2018 while staying with her mother – in the same time frame when she executed the Will.6

Material disputed facts:

The second ground for the contest: Whether Amy was suffering from delusions.

On the one hand, Amy’s dentist, Dr. Toth, testified that he was not concerned about her capacity and did not observe – two months before Amy executed the Will - anything suggesting delusions on her part. Similarly, her periodontist, Dr. Gordon, who saw Amy the week before and after Amy executed the Will, did not note anything to suggest any lack of capacity on her part. In addition, Ronald Hering and Allyna Nguyen, the two subscribing witnesses to Amy executing the Will, both testified that Amy was of sound mind.7 While the testimony of subscribing witnesses is entitled to be given great weight (Goetz Estate (1967) 253 Cal.App.2d 107), given their presence when a testator executes a will, as MV argues, for summary judgment purposes this does not change whether there is a dispute about the evidence. Courts cannot weigh evidence on a summary judgment motion.

On the other hand, it is not clear that two medical professionals - who were not treating Amy as to these sorts of concerns - would necessarily know the level of depression Amy was seemingly experiencing unless she raised it with to them. Similarly, the subscribing witnesses did not know Amy at all and would not know what Amy would have done if she were in a different mindset. The condition here is not dementia - or other condition whereby the patient cannot carry on daily activities. Amy’s depression or any delusions she might have had as to MV or their situation might not be apparent.

Whether Amy’s testamentary disposition was the result of delusions:

On the one hand, MV was her long-term husband - who would be a natural person to whom a spouse would leave her property. (See Comino’s Estate (1942) 55 Cal.App.2d 806, 813, Luckenbach Estate (1928) 205 Cal. 292, 295) In addition, her letters credit MV with securing assets for her and indicates she hopes the court will uphold her wishes.8 Further, in the letters she left, she expresses significant negative feelings towards her father, mother and sister – who would presumably be her heirs otherwise.9

On the other hand, that her family did not know that she was married to MV creates some doubt about the validity of that marriage where it also appears that they did not reside together.10 In turn, while MV relies on authorities that it would be natural for one spouse to leave their estate to that other spouse because of the “kindness and affection” typical to a marriage, or from caring for the other spouse, that is merely a presumption and there is some evidence to rebut that presumption where MV had not been residing with Amy, appeared to be leading his own life in New York for two years and in fact did not care for her when she needed his support – even according to his own statements to the police. Further, Dr. Miles provided expert testimony that after review of materials filed in this case that the Will “was the result of delusional thoughts Decedent was experiencing… and/or that the Alleged Will is the product of duress or undue influence.”11 (Para. 23) In addition, Parents argue that Amy’s statements in her notes were delusional related to MV’s care of her. The Court agrees that there is ambiguity in these letters as to whether they should be read literally.12

Whether Amy understood the “nature and situation” of her property for purposes of PC sec. 6100.5(a)(1)(B).

On the one hand, Amy understood where her money was located, as evidenced by the August 9 will. In addition, in the letter to her father three days later, she identifies her ownership interest in the family business.

On the other hand, she demonstrated that she did not understand that MV was not the cause of her having the money she had where this money derived from what had her family had given her. While MV may have had some role in what she received – based on apparently having advised her in prior litigation with her father - the money did not come, for example, from MV’s earnings or other employment.13 (See MCH Decl., paras. 3-30 and bank records in Ex. 65-71)

Hence, while there may be some question about MV’s role exactly, there is still a dispute as to whether Amy understood this money came at least on some level from her family, not as she says in her letter to MV money from him.14

The third ground for the contest: Whether Amy lacked testamentary capacity.

On the one hand, the Court recognizes that suicide may not be enough alone to set aside a will. In addition, MV stated in a declaration dated July 13, 2022 (Ex. 91 to the opposition) that in the months leading up to her death Amy was not undergoing any mental concerns.

On the other hand, her suicide is still significant evidence that the testator was not of sound mind only two months after she executed the Will. In addition, the evidence indicates she appeared to be still going through the same crisis following what she believed was her mistaken sale of her home. (See Joseph G., supra, 34 Cal.3d at 434, 437) Further, the letters Amy left all demonstrate she herself recognized she was undergoing a mental disorder. In turn, MV admitted that Amy was undergoing severe depression (according to him for reasons other than him) throughout 2018 that led to Amy having previously attempted to commit suicide in August 2018 (which Amy’s younger sister Joanna corroborated when Amy ultimately did commit suicide and spoke to the police (Ex. 19). (MV Cross-complaint in Civil case, paras. 41-49) Finally, MV’s recorded statements to the police evidence his acknowledgment she was undergoing severe mental issues and depression at that time, as does the text MV sent to Samantha Lin on November 27, 2018 (in Ex. 1 to the Belsome Decl.).

MV cannot now disavow the foregoing evidence, even if Amy was well educated and had business ability. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 22 (party may not use its own declaration on summary judgment to rebut prior testimony)) Moreover, the two are not mutually exclusive. Mental disease does not result from educational level. At least for summary judgment purposes, the suicide and events leading up to it create a triable issue.

The fourth ground for the contest: Whether MV exercised undue influence over Amy to the extent that her will was broken and effectively the instrument bears his will.

On the one hand, MV asserts in para. 11 of his declaration that he “…never told any lies to Amy to influence her to name me as a beneficiary in her will. I never told Amy that I would or would not do something depending on whether she named me as a beneficiary in her will. I never threatened, coerced, or pressured Amy to name me as a beneficiary in her will, nor did I say or do anything to influence Amy to take any action with respect to the contents of her Will.” MV argues there is no evidence to support this claim:

There is however significant evidence to the contrary:

- MV admitted to the police her death was his responsibility and that he should have taken her to see a doctor after she told him she was suicidal, including having discussed different ways she might have killed herself, knowing he would inherit everything from her.

- MV caused her to be in a state of stress in seemingly insisting that she sell the Moreno property (so he might obtain the one third share in it that he claimed he was due) (per the texts in Ex. 24D) – which she then deeply regretted - and in turn causing her great instability in not having a permanent home.

- Amy faced embarrassment with her family in having sold the Moreno property – to meet MV’s apparent condition for his living with her – and then needing money from them for her support.

- Amy knew her family was unaware she was married to MV. Both her sisters reported to the police their belief that their sister was not married to MV. In her letter to her father, Amy demonstrates a need to finally tell him that she is married to MV.

- Amy depended heavily on MV (from an emotional perspective), whom she believed rightly or wrongly was going to abandon her. Her letter to MV corroborates this concern. In addition, MV admits that Amy shared with him her belief that she had an abandonment disorder. (MV Cross-complaint in Civil case, para. 41) He admits also that she was calling him “excessively” every day while he was away. Id, para. 45 It appears statements he made to her may have falsely led her to believe that they might live together.

- The texts and other communications suggest MV was effectively pressuring her for money or that otherwise he would not return. It appears MV was not only away in the prior months in Romania but according to what he told the police he was back and forth between Los Angeles and New York for several years. It is unclear to what extent MV ever cohabitated with Amy to thereby infer they were truly married.

- MV did not provide the suicide notes to her father, mother or sisters before she died when at least according to Sophia’s husband, Dr. Melvyn Yeoh, MV told him that he had the letters since September 10, 2018 when he returned to where Amy was then living. Yeoh states that the letters had been opened and that, according to MV, Amy had told him to hold on to them.

- Shortly after MV returned in September 2018, $4,862,195 – from the sale of the Morena property - was withdrawn from the Bank of America account of Amy and Sophia. In addition, $500,000 was withdrawn from the joint account of Amy and Sophia at Capital One Bank. Upon her discovery of these withdrawals, Amy told Sophia that Sophia was entitled to only one third of the sale proceeds (not one half) and that she was entitled to the other two thirds. Sophia Huang Decl., paras. 22-50 and attached exhibits. It appears that Amy was trying to give MV the one third share from the proceeds he claimed he was due (and which others in their declarations dispute).

- Amy giving in to MV’s demands by appearing to leave him everything.15 See Miles Decl., para. 23

The sixth ground for the contest: Whether the two witnesses to execution of the Will saw the entire will that they were witnessing Amy execute.

Initially, MV argues Parents did not raise a contention in their Contest that the Will was not properly witnessed and therefore cannot now raise the issue. (Cal. Bank & Trust v. Lawlor (2013) 222 Cal.App.4th 625, 637) The Court does not find Parents waived the witness issue raised in their Opposition even if it was not specifically raised in their Contest where they broadly challenged due execution of the Will.

Parents point out that the page the subscribing witnesses signed does not show Amy’s signature. In turn, their declarations do not attach the wills; only the page they signed. Hence, Parents contend it is unclear whether the Will MV seeks to probate is the same will they witnessed Amy execute.

MV responds, however, that there is no requirement that a witness initial each page or that they know the contents; only that they saw her sign what they understood to be a will.

The Court does not find that Parents have demonstrated any triable issue based on this ground or shown how there is any evidence contrary to that of the subscribing witnesses. There is no evidence that what MV is presenting - with the same date on the Will as the witnesses subscribed the Will - is any different from what the witnesses say they saw her sign. Her suicide notes also corroborate the terms of the Will.

The Court also does not find a triable issue arising from Amy having included MV’s name in certain parts of the statutory form will as to specific assets where the Will indicates he was to be the sole heir in any event. Having done so is of no consequence and does not raise any ambiguities. See Estate of Perry (1996) 51 Cal.App.4th 440 where the court reversed an order granting summary judgment - the trial court having found a will to be invalid where the testator merely had not personally completed the form’s blanks. The Perry court noted in this regard; “…we perceive a legislative goal of easing, not tightening, the general requirements for execution of wills on statutory will forms.”16 (Id., 51 Cal.App.4th at 445)

On the other hand, there is a triable issue where it does not make sense a will would be revised to include asset information when it was the August 9 will that included this information and the later one did not. This apparent mistake may reflect some level of confusion on Amy’s part. Whether that would ultimately suffice to show there was not a valid will remains to be seen. In the same way there was a triable issue in Perry as to invalidity so here conversely there is an issue as to validity. The Court cannot hold as a matter of law that Parents will not be able to prove that the Will is not valid.

In addition, Judge Small already addressed due execution when faced on July 6, 2022 with a motion for summary adjudication filed by Parents in support of their contest. Following Perry, the Court found a triable issue as to the Will showing her testamentary intent: Amy creates some confusion as to what she intended by her having put MV’s name in various boxes instead of following the instruction that she should have signed in the box next to the adjacent information she had chosen. Given these circumstances, Judge Small declined to find on summary judgment whether the Will could still be valid under PC sec. 6110 even if it may not have been valid under PC sec. 6221 based on the use of the statutory form. This ruling itself precludes the Court from finding there is no triable issue as to due execution.

In summary

In view of the foregoing, the Court finds each of the purported facts in MV’s Separate Statement to be in dispute. Parents’ responsive Separate Statement sets forth the ways in which each fact is disputed. While the Court does not necessarily agree with all the reasons asserted for dispute, as to each fact there was some part of Parents’ arguments as to why it was disputed which the Court did agree with – consistent with this discussion.

Given the number of disputed facts already, the Court does not need to now reach whether MV intentionally destroyed evidence that would result in an inference of spoliation by MV. The Court recognizes, for example, that it appears the only time Amy looked for information on the internet concerning statutory wills was not before she seemingly executed a statutory will in August 2018 - but in October 2018 by when MV had returned to Los Angeles when she had already seemingly executed the statutory will. (Albee Decl., para. 21 and Ex. 24C, p. 182) Parents can however explore this issue further later or at trial.

CONCLUSION

For these reasons, the Court denies the motion as to each issue MV sought to summarily adjudicate.

FOOTNOTES:

1) The prior bench officer assigned to this case did not hear the motion. On February 24, 2023, the undersigned scheduled the motion for hearing.

2) The Court refers to the will dated August 9, 2018 as the August 9 Will (Ex. 2 to MV Decl.) – which MV is not seeking to probate.

3) Certain of these documents were filed in opposition to MV’s motion for summary judgment filed in the related civil case that was to be heard concurrently until MV withdrew that motion based on not having filed a Separate Statement.

4) The Court does not believe any marriage certificate has been made a part of the record on this motion.

5) While MV asserts here he was visiting his parents in Romania, it appears from another of his declarations filed herein that he was also travelling elsewhere in Europe, accompanied in part by a woman with whom he denies having a relationship but whose airfare he paid.

6) The Court rejects MV’s simplistic argument that Parents’ claim MV exercised undue influence over Amy is merely a reaction to Amy having stated in her letters various adverse feelings towards them. What exactly was going through Amy’s mind and in her relationships with MV and her family is obviously complicated and requires a trial to sort through the divergent views as to what happened. Also, unlike in either Lingenfelter or Ross, the Will was not executed with the advice of a lawyer who could testify to the soundness of her condition in making a will.

Moreover, more recently, the Calif. Supreme Court has taken a more questioning position about what to infer from someone who commits suicide – at least in a criminal context – noting that “’the current psychiatric view is that attempted suicide is a symptom of mental illness.” In re: Joseph G. (1983) 34 Cal.3d 429, 434 (finding the party surviving a suicide pact can at most be responsible for the felony of ‘aiding or encouraging another to commit suicide’ under Penal Code sec. 401)

7) While testimony of Eunjung Shim Yang, the notary, may be relevant, she cannot give an opinion as to Amy’s capacity where she does not fall under any of the category of persons under Evid. Code sec. 870 who can provide an opinion as to sanity: She was not an “intimate acquaintance” under subsec. (a). She was not a subscribing witness under subsec. (b) (A notary is not required for a will). In turn, her opinion is not necessary for a “clear understanding of her testimony” (under Evid. Code sec. 800(b), nor is she an expert witness (under Evid. Code sec. 801) for purposes of Evid. Code subsec. 870(c).

8) Parents offer a declaration from David Van Etten, a lawyer for Amy in the litigation with her father. He disputes that MV supervised or assisted Amy in that litigation and further questions whether MV could permissibly claim a one third interest in any recovery without his knowing about it – which interest may be what Amy is referring to in her stating that MV was responsible for her having what she has.

9) However, it is not clear Amy would have wanted to leave her father, mother or sister any of her estate - even if she was deluded about her husband. This is a difficult factual issue not amenable to decision by motion for summary judgment and which goes beyond what is at issue on this motion. Significantly, MV’s cross-complaint in the civil case alleges a cause of action for wrongful death against Parents.

10) By way of analogy, a “confidential marriage” – whereby parties are relieved of securing a marriage license - is not permissible if the parties were not residing together as spouses beforehand. (Family Code sec. 500)

11) MV argues that because the declaration does not use the word “opinion” that this is inadmissible testimony. The Court overrules this objection. It appears that Dr. Miles’ investigation is not complete and therefore this declaration may not be a final opinion.

12) Whether Amy’s beliefs as to MV amount to a “delusion,” as defined, requires a calibration of a mix of factors, see quotation from Eyford, supra, 62 Cal.App.4th at 122, cited by MV, that cannot be weighed on summary judgment.

13) Moreover, what role MV had in the prior litigation and any ensuing share of the recovery is further disputed by several of the declarations filed.

14) The Court does not read the texts as evidencing that Amy did not understand that she was married to MV. To the contrary: She indicates that they may have been married so he could reside in this country. Her statements about wanting to be truly married and with children appear aspirational.

15) MV’s claim that he never discussed an estate plan with Amy (in para. 7 of his Decl.) is a strawman argument (that is in any event also in dispute): MV and Amy may not have discussed specifically an estate plan but there is evidence that he was pressuring her to transfer the Moreno property sale proceeds to him. It is apparent from the texts that she and MV had discussed this issue at length. The wills on their face provide for his receiving any personal residence – that they were in the process of buying. (In the letter to Sophia, however, Amy says MV told her not to sell the Moreno property.) The bulk of the disputed evidence suggests the wills were merely another means whereby MV could achieve his apparent attempt to obtain funds from Amy.

Similarly, that MV was out of the country when Amy executed the Will did not mean that he did not necessarily “actively participate” in procuring execution of the Will (see Estate of Mann (1986) 184 Cal.App.3d 593, 606-608) nor that he did not “directly” procure its execution. See Niquette Estate (1968) 264 Cal.App.2d 976, 981. It is undisputed that MV and Amy were in contact with one another at least by text during that time. After one call, Amy stated looking for an estate planning lawyer. Moreover, by staying away from Amy he may have known he had more power over her because she wanted him to come back to her.

16) For this reason, it does not appear a basis for invalidity that one will refers to MV as her spouse and the other will does not where both provide for him to receive her whole estate.