Doherty v. Doherty CA3

Filed 12/29/14 Doherty v. Doherty CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Calaveras)
----

ROXANNE DOHERTY, C073408

Cross-complainant and Appellant, (Super. Ct. No. 10PR7214)

v.

MICHAEL DOHERTY, as Cotrustee, etc.,

Cross-defendant and Respondent.

Estate of WILLIAM F. DOHERTY, Deceased.
C073423

MICHAEL DOHERTY, (Super. Ct. No. 10PR7172)

Petitioner and Respondent,

v.

ROXANNE DOHERTY,

Contestant and Appellant.

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 On the death of William Faulkner Doherty in July 2010, Michael Doherty and
Debra Doherty McMannis (his son and daughter) filed a petition to admit his will to
probate and to appoint them as executors. They also filed a petition as cotrustees to
confirm the assets of the June 2010 William Doherty Trust (the trust). William’s1
widow, Roxanne (née McCoy) Doherty Jennings,2 filed an objection to the validity of the
will and a counter-petition contesting the validity of the trust. After a trial lasting 25 days
with hundreds of exhibits and 31 witnesses—resulting in a transcript and appendices that
fill a three-foot shelf—the trial court issued a statement of decision that confirmed the
validity of both instruments. In February 2013, the trial court entered judgments in favor
of Michael and Debra in the two actions.3 Roxanne filed timely notices of appeal. On
Roxanne’s motion, we issued an order consolidating the two cases for the purposes of
argument and decision only.

It should not be surprising that at issue is an estate valued at 30 to 50 million
dollars in community assets, derived from the profits of William’s electronics company—
EMCO High Voltage Corporation (EMCO)—of which Michael has been the sole
operations manager since 1994 and the sole executive officer after September 2009.

To reorder her arguments on appeal, Roxanne first contends the will is invalid
because its execution failed to comply with Probate Code section 6110.4 She next claims
the trial court erred in applying the attorney-client privilege to a phone call between

1 In keeping with the style of the briefing, we will use the Christian names of the parties.

2 In May 2011, Roxanne married her property manager, Christopher Jennings, and was
addressed by this surname at trial. As she adopted this surname only informally and did
not seek to amend the captions in these actions in the trial court, we will not amend them
on appeal.
3 Debra has declined to make an appearance on appeal.

4 Undesignated statutory references are to the Probate Code.

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William and one of his lawyers three days after the execution of the instruments. Coming
to her central issue, she argues that the trial court erred in failing to apply a presumption
of undue influence that arose as a matter of law, because Michael’s receipt of the entirety
of William’s ownership interest in EMCO (and thus entitlement to a full half of EMCO’s
profits) is an undue benefit (because it is contrary to the evidence of William’s desire for
the income to be equally shared among her stepchildren) that accrued to a fiduciary who
was involved in the procurement of both instruments. Finally, she contends on the same
basis that the bequest to Michael of William’s entire EMCO ownership interest is a basis
to void the instruments because they consequently do not reflect the uncontradicted
evidence of the testamentary intent to have her stepchildren share EMCO income equally.
We shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Roxanne expressly abjures any challenge to the sufficiency of the evidence, but her
account of the evidence nevertheless suffers from a failure to apply the basic principles
governing our appellate review of the facts.5 This opinion’s factual summary resolves all
conflicts in evidence or inferences in favor of the judgment.6 (Kuhn v. Department of
General Services (1994) 22 Cal.App.4th 1627, 1632-1633.)

5 We note for the benefit of counsel that it is not helpful to this court to provide lengthy
string cites to the record (some of which are nearly one page long in Roxanne’s brief),
after stating a general summation of a point of fact, without any identification of which
witnesses are involved or which part of the evidentiary puzzle they are providing.
6 We deny Roxanne’s motion for judicial notice of her pleadings in a separate action
against Michael (apparently focused on control of EMCO); she does not establish (either
in her motion or briefing) that these materials played any part in the proceedings below
(Haworth v. Superior Court (2010) 50 Cal.4th 372, 379, fn. 2), nor is their relevance to
this appeal apparent (People v. Eubanks (2011) 53 Cal.4th 110, 129, fn. 9).

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Backdrop: The Parties, Their Relations, and the Management of EMCO

William was born in Stockton in 1937. With his first wife, Elizabeth, he had three
surviving children: Debra was born in 1965, Michael was born in 1967, and Douglas was
born in 1970.

William had a degree in electrical engineering. In the early 1970’s, he was the
president of Sierra Systems. He met Roxanne McCoy (born in 1952), who was an
assembler of electronic components, when she began to report directly to him after a
promotion to supervisor. EMCO initially began as a company in name only, buying
components to resell them to the financially floundering Sierra Systems, which lacked
vendor credit. After Sierra Systems went out of business, EMCO became a going
concern in early 1975. Roxanne was then involved with procuring orders, assembling
product, and shipping product.

Roxanne and William became romantically involved in the fall of 1974.
They began living together in 1976. The following year, they moved to a house when
his children came to live with them. They were married in 1978. The business moved to
Amador County in the mid-1980’s.

After leaving home at 18, Debra eventually settled in the Sacramento area as a
school administrator, visiting William monthly until his health began to fail and her visits
became more frequent. Douglas moved to Alaska in 1990, and was somewhat estranged
from his father. Michael began working for EMCO in the fourth grade, assembling
circuit boards and being paid in piecework in lieu of an allowance. By the time he was a
high school senior, he was supervising a production line and assisted William with design
work. Once he got his degree in electrical engineering in 1989, he began working at
EMCO full time. Neither of his siblings worked for EMCO after reaching adulthood.

In the early 1990’s, EMCO was in financial straits. It had laid off a quarter of its
28 employees because it could not meet its payroll. William had been overseeing EMCO

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from home, but now returned to working on-site in mid-1993. At this point, Roxanne
stopped working at EMCO and was never thereafter an EMCO employee in any capacity.
EMCO returned to profitability and paid off its line of credit. In early 1994, William
named Michael (at age 27) as the chief operating officer and limited his own
responsibility to overseeing the payables, payroll, and payroll taxes from home.

Under Michael’s stewardship, EMCO’s workforce increased in size from 30 to 35
employees in 1994 to a peak of 75 employees in 2006. EMCO incorporated in 1998,
with William as the sole director and officer; Roxanne’s only official position was as a
stockholder with a 50 percent ownership interest in 501 shares of EMCO. Corporate
revenues in its first year were about $2 million, twice the amount in 1994; by 2006, they
reached almost $9 million. In a December 2002 communication regarding EMCO’s
financial circumstances, William stated that Michael ran the company while William
collected his $200,000 in income as board chair. In March 2009, when one of his
grandchildren asked if she could work at EMCO for the summer to enhance her college
applications, William directed her to contact Michael because “he runs EMCO.” William
told people that he was proud of the successful way Michael was running EMCO (an
opinion Debra urged him to share with Michael); this was a point even Roxanne
conceded.

In September 2009, William told Michael that he wanted him to take over the
financial duties. He told Michael and Debra that he had tried to have Roxanne perform
the tasks, but she refused to do them in William’s preferred manner (which Michael
adopted).

There was tension between the spouses dating back to the early years of their
marriage. William did not want any more children, and Roxanne resented spending a
good portion of her life raising his children without any of her own. After her third
abortion, this issue and others resulted in a distance between them by 1985 that made

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them less trusting of each other. The subject of divorce first arose before 1985, and
came up again in the early 1990’s. These tensions came to a head by 2009. William told
his children that he and Roxanne were considering divorce (though neither wanted to go
through the process), with each of them demanding that the other move out, and Debra
had observed outbursts of displeasure between the two. William also sent Debra e-mails
complaining about Roxanne mistreating him or ignoring his needs to the point of elder
abuse; Debra replied to one, “We all know that she is very difficult—okay a bitch.”
Debra was concerned that Roxanne was not taking good care of William, and knew of his
frustrations about the absence of any physical intimacy with Roxanne. William also
suspected Roxanne was having an affair with Christopher Jennings.

On the evening of June 16, 2010, the siblings were dining together at Michael’s
home. First Michael and then Debra received phone calls from Roxanne. They knew
from past experience that she would likely be inebriated by this time of the day; her
speech was slurred and she sounded agitated. She told the siblings that she wanted their
father out of the house and had put his belongings outside. The siblings immediately
drove over to their father’s house. Roxanne was outside, looking agitated. By the front
door were a suitcase and a blanket, and William’s walker and wheelchair. Debra and
Michael went inside to talk with their father, who told them that Roxanne had tried to
drag him out of bed, although he had been able to hang on to the bed frame. Roxanne
had told him she was going to leave him in the road. She then called an ambulance to
remove him from the house (although he refused to leave when it arrived).

When deputies eventually arrived, they arrested Roxanne (who declared as they
led her to the patrol car that no one could prove anything because there had not been any
witnesses). On their own initiative, the deputies contacted a judge in the middle of the
night to obtain an emergency restraining order. This was over William’s objection at the

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time.7 However, at William’s request the next day, his attorney prepared an application
for an extension of the restraining order. William expressed his fear of Roxanne coming
back, telling his attorney that she had “really f***’d [him] over”; Debra and Michael
provided supporting affidavits, William reminding them of the facts that they needed to
include.8 The attorney filed the application on June 21. The court issued the temporary
restraining order on June 22.

Roxanne filed a petition for legal separation on June 30, 2010. William died on
July 2 of heart and lung failure as a complication of alcohol-induced liver and heart
damage.
William’s Physical and Mental Condition in 2009-2010

Those who knew William described him as otherwise intelligent, strong-willed,
single-minded, and a person who liked being in control of things. He enjoyed being the
center of attention in social interactions. He liked to do things for himself, even to the
point of developing his own financial software (which he used despite it being more
clumsy than commercially available software).

It never even crossed the mind of William’s primary care physician (who treated
him from August 2009 to his death) that William had any degree of dementia, because
he was articulate in the examination room, on the phone, and at social gatherings. In an
April 2010 mental assessment, the doctor had charted “memory impairment” based on
William missing the answers to a couple of questions (a common circumstance among
the doctor’s patients). He included this primarily for Medicare reimbursement purposes

7 We (like the trial court before us) therefore disregard Roxanne’s appellate intimations
that her arrest was a function of the orchestrations of Michael and his siblings rather than
her own drunken misconduct.
8 Consequently, Roxanne’s appellate intimations that the restraining order was obtained
without the participation of William are not well taken.

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for the time he had spent in evaluating William. He in fact thought William had only
minor memory problems that were attributable to his heavy drinking, which under the
doctor’s counseling he was able eventually to quit by May 2010. His last physical exam
of William was in late May 2010. There was nothing abnormal about his psychological
functioning at that time, nor during four phone consultations from May to June 2010 (and
if he had perceived any apparent confusion, he would have charted it). William had an
abnormally high level of ammonia in his blood, but he did not have any other signs that
would have caused the doctor to diagnose him with hepatic encephalopathy (HE), which
is a loss of brain function attributable to blood poisoning from liver failure. The doctor
did want to prescribe dietary management to help forestall this possibility.

The doctor’s conclusions were consistent with the observations of several
emergency room physicians who treated William on five occasions from May to June
2010. These described him generally as alert and oriented to person, place, and time,
even though by June 22 he was lethargic and weakened. If he had shown any sign of
HE, a report would have made note of it; on June 19, a physician had noted the elevated
ammonia levels, and cautioned William that though he was not presently showing signs
of confusion this could lead to HE.

William’s attorney had been performing legal services for him since 20049 and
had become a close friend,10 who communicated with him at least once a week. As late

9 These included representing him in a challenge to a special assessment that his fire
protection district had imposed. (See, e.g., Concerned Citizens for Responsible
Government v. West Point Fire Protection Dist. (2011) 196 Cal.App.4th 1427, review
dismissed as moot (Nov. 28, 2012, S195152) & request for republication den. (Dec. 19,
2012, S195152).)
10 Roxanne’s appellate suggestion that Michael somehow introduced William to the
attorney for the purposes of estate planning or induced the attorney to introduce the
subject are thus not well taken.

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as 2010, William was still providing valuable insights regarding litigation strategies. On
June 24, 2010, the attorney had his last conversation with William, who was talking
slowly but did not have any trouble with comprehension. He last visited William three
days later; William was too physically weakened to do anything other than open his eyes,
sit up, and then lay back down in bed again after examining an acquisition the attorney
had brought to show him.

Previously, in support of the restraining order, Debra had attested to her father’s
continuing mental sharpness (even though his physical condition had deteriorated since
the night of Roxanne’s abuse), and to his adamancy about not seeing Roxanne again. In a
December 2010 e-mail exchange with Christopher Jennings, Debra hotly denied that her
father had experienced any diminution in his mental state in 2010, other than being
conscious of the fact that he was dying.

Against these arrayed professional and lay personal observations of William,
Roxanne produced a forensic psychiatrist on the issue of William’s “susceptibility” to
undue influence. Premised strictly on William’s medical records (while acknowledging
that the issue often can take a “multi-dimensional” review of evidence beyond medical
records), he believed that William was suffering from HE in June 2010 that the expert
“would expect” to impair his ability to perform complex thinking, and therefore made
him “susceptible” to undue influence. He conceded the evidence otherwise did not show
William lacked testamentary capacity within the meaning of the Probate Code or had any
confusion regarding the nature of his relationships with his family. Michael’s expert
undertook a multi-dimensional review, and based on numerous factors beyond the
medical records (which he did not believe of themselves were sufficient to establish HE)
concluded that William was not susceptible to undue influence in June 2010.

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The Execution of the Instruments

Whenever William raised the issue of estate planning, Roxanne became angry.
She refused to cooperate in establishing a trust.

As early as 2000, William had expressed his preferences in a holographic will.
He wrote (with emphasis) that all property he could convey was to be divided equally
among his children, and requested that Roxanne convey her property to them as well.
William’s own stepmother had deprived him of his inheritance from his father, and he
wanted to make sure that this could not happen.

William did not pursue the issue of estate planning with his attorney until the
summer of 2009, when he began having heart problems and he asked his attorney to start
preparing a trust. (William’s attorney devoted only a small percentage of his practice to
estate planning. He had never prepared a trust for only one spouse in a marriage.) As of
the spring of 2010, they had discussed the matter at least a couple of dozen times on a
daily basis.

William told his attorney that his primary concerns were conveying his share of
the marital property equally to his children, and to make sure that Michael had control of
EMCO. His latter goal was to protect EMCO from anyone seeking to force a sale of the
company in order to obtain a share of the assets, and to prevent Roxanne from trying to
take over EMCO; he wanted EMCO to continue as a company. Having researched the
issue of generational transfers in family businesses, William did not think EMCO could
be successfully run with a committee of family members who did not have experience
with managing it, and he was particularly concerned that Douglas would align with
Roxanne to allow her to wrest control from Michael and jeopardize his job. He directed
his attorney (with Michael’s assistance) to convert any assets held in joint tenancy to

10
tenancy in common, in order that he could convey his share to his children.11 He
believed Roxanne’s community interests were more than an adequate share of the wealth
arising during their marriage.

William had told Michael of his plans for conveying control of EMCO to him.
Debra and Douglas acknowledged that this was William’s intent, and agreed that Michael
properly should be in control of EMCO.

William initially sought Roxanne’s consent in jointly giving Michael an option to
buy additionally issued shares of EMCO stock. After initially signaling her approval, she
ultimately refused on the ground that the option was effective immediately rather than
after William’s death. William then unilaterally executed a stock option as a director of
EMCO on June 6, 2010, for 50 shares.12

William’s attorney presented him on June 8 with a will that the attorney had
drafted. This provided for Michael inheriting William’s interest in EMCO, with the
siblings sharing equally in the rest of William’s property. The attorney had discussed
these provisions extensively with William, and reviewed them again with William when
he presented the document for execution. Although William was interested in making
provision for equal profit sharing among the siblings, he decided not to include it at that
time because of the complications entailed in providing a right to profit sharing divorced
from any ownership interest, and he was more focused on keeping EMCO intact until

11 In light of this evidence, Roxanne’s appellate suggestions that there was something
untoward about Michael’s actions in this regard are not well taken.
12 Roxanne, unsurprisingly, contests the validity of this option on appeal and repeatedly
objects to any reference to Michael being conveyed a “controlling” interest. However,
the issue is not of any moment in the present appeal.

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finding a solution to those complications.13 William signed the will in the presence of
two disinterested witnesses. At the same time, William executed a number of documents
to convert joint tenancies to tenancies in common.

On June 18 (after Roxanne’s arrest), the attorney had William execute an identical
version of the June 8 will in front of two other disinterested witnesses. He did this out of
an abundance of caution, because one of the witnesses to the June 8 will had expressed
uncertainty about whether William was aware that he was signing a will.

William still wanted a trust to avoid probate. Given his attorney’s limited skills
in drafting trusts, William told him on June 17 and 18 to meet with attorneys from the
Boutin law firm in Sacramento (now denominated “Boutin Jones, Inc.”), with whom both
William and Michael had prior dealings in legal matters for EMCO since the 1990’s.
(Michael had told his siblings the previous evening that this was a goal of his as well, a
lawyer at the Boutin firm having recommended its estate planning services earlier in the
year and Michael lacking confidence in the abilities of William’s attorney.) Since
William was eager to get this done, after the execution of the will his attorney went that
same day on William’s behalf to the Boutin firm to discuss the drafting of a trust and
will, and taking corporate action to facilitate William’s transfer of a controlling interest
in EMCO after his death to Michael. Michael went with William’s attorney to the
meeting.14 William’s attorney signed an agreement for the Boutin firm to “assist [him] in

13 The parties do not discuss the legal basis of these “complications” (other than brief
adumbrative commentary in Roxanne’s reply brief), so we will not expand upon this
subject further.
14 We disregard Roxanne’s appellate efforts to draw contrary inferences from this
evidence that the orchestration of this meeting is actually attributable solely to Michael,
as this is yet again contrary to the principles of appellate review. In particular, we note
the contents of an e-mail that Michael sent to Boutin on the morning of June 18 after
speaking with his father, who “agree[d] 100%. He wants to move forward now, he says

12
connection with [his] representation of William F. Doherty” regarding “personal estate
matters” and “corporate matters relating to his equity ownership” of EMCO. The two
Boutin lawyers expressly told Michael that neither they nor William’s attorney would be
representing his interests in this matter. There was discussion with the corporate Boutin
lawyer about the aforementioned “difficulties” in developing an agreement to share
profits among the three siblings without transferring any ownership interest to Debra or
Douglas.

The estate planning Boutin lawyer immediately prepared a limited power of
attorney for William to execute, in the event the siblings needed to contact any financial
institution on Saturday to prevent Roxanne from seizing bank accounts. Relying on the
June 18 will as the expression of William’s dispositional intentions, the Boutin lawyer
prepared a new pour-over will, a trust, and other testamentary documents over the course
of the weekend after the arrest of Roxanne. The Boutin attorney sent William’s attorney
a draft of the documents on Monday (June 21), including a “general transfer” reflecting
the trustor’s general intent to put all assets into the trust. The will transferred all of
William’s assets to the trust, and the trust once again provided for a transfer of William’s
EMCO interest to Michael, with the remainder of the assets divided equally among the
siblings. The only change the Boutin lawyer effected was to name Michael and Debra
jointly as trustees and executors, an alteration intended to share the burden of anticipated
litigation by Roxanne.

William’s attorney brought him the documents on the afternoon of June 21.
William was sitting in a chair in the living room, awake and alert. He did not appear to
have any difficulty comprehending his attorney. The attorney explained the provisions
of the various documents (the will, trust, general transfer, and limited power of attorney)

he could drop dead of a heart attack at any time. I will see you at 3 PM. I hope to have
[my father’s attorney] with me.”

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before William signed them. Debra, Michael, a notary, the notary’s husband, and a
healthcare worker were present. The notary believed William’s attorney was extremely
thorough in explaining the documents (a process which took hours), and did not see any
signs that William was confused or subject to undue influence. Her husband, who was
one of the subscribing witnesses, concurred. The healthcare worker was the other
subscribing witness. She had spent 10 hours with William on that day altogether, and
thought he was articulate and coherent throughout. She did not see any indication that
William’s execution of the documents was contrary to his wishes.

The notary’s husband did not have any recollection of that afternoon in general
(being more focused on reading his book) or of actually seeing William sign the will,
but he would not have signed the attestation if it had not been accurate. The healthcare
worker also did not recall seeing William sign the will specifically (although she did see
him signing documents), but the notary had told her that he signed the will when the
healthcare worker signed the attestation.

William’s attorney had communicated with the siblings over the weekend about
William’s desire to protect EMCO from Roxanne by giving Michael alone a controlling
interest in the company. After the execution of the documents on June 21 Debra became
emotional about the transfer of EMCO control solely to Michael, and pressed her father
on this issue. He told her of his desire to protect Michael and EMCO from Roxanne, and
assured her that she would get a share of the profits. She protested that this was not
expressly stated anywhere. As a result, William and his children drafted a document on
the spot with the assistance of William’s attorney, which they executed and notarized. It
provided in general fashion that William “has expressed the intention to provide for
[Debra and Douglas] to share in the profits of . . . EMCO. [¶] The parties agree that the
mechanics will be set in place to realize William Doherty’s intention. [¶] To this end,
the necessary paper work will be drawn up as soon as possible . . . .”

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 On June 24, William—acting as a one-person EMCO board—appointed Michael
to the other seat on the EMCO board, and to the corporate offices of president, chief
financial officer, and secretary. The EMCO board also ratified the stock option that
William had issued to Michael. (Again, the validity of these actions is not a concern of
this appeal.) William then told his attorney to get the Boutin firm to develop a formal
profit sharing agreement, and take measures to solidify Michael’s control of EMCO.
William next called his accountant (who had been handling the Dohertys’ income taxes
for 20 years) and asked her to meet with him the next day (June 25).

Debra and Douglas were present intermittently while the accountant spoke with
William, who seemed fully coherent to the accountant. William told the accountant that
he wanted Michael to continue running EMCO without any reduction in his salary, and
that he had taken steps to convey a controlling share of the ownership interest to Michael.
The accountant expressed her (lay) concern that William could not affect Roxanne’s
interest in the company adversely by unilaterally issuing shares to someone else. She did
not recall William bringing up the subject of any dissatisfaction with his will or trust at
any time. He did not ask her to take any actions in response to his concerns.

The siblings transferred large sums of money from joint bank accounts to accounts
to which Roxanne did not have access. They undertook these transactions with William’s
knowledge and consent (except for $400,000 in cash removed from a safe in the home
after Roxanne’s arrest).15

15 We ignore Roxanne’s repeated appellate suggestions that Michael and his siblings
were malefactors in taking these actions; to the extent these suggestions are
even probative on the issues on appeal, they are again in derogation of this contrary
evidence supporting the judgment.

15
 After William’s death on July 2, 2010, Michael had attempted to execute a profit
sharing plan with his siblings. However, they now were seeking ownership interests and
seats on EMCO’s board of directors, and declined to enter into any agreement.
Statement of Decision

The trial court’s tentative ruling summarizes the evidence at length in largely
the same manner as we have set out above. As this is only a tentative decision, however,
its contents are immaterial to this appeal and we disregard Roxanne’s arguments to the
extent they rely on it. (Smith v. City of Napa (2004) 120 Cal.App.4th 194, 199.)

The statement of decision is a thing of amazing brevity, given the record. Even
without expressly considering the evidence of enmity between the spouses, the court
found that it was not unusual for William to leave his entire disposable estate to his
children to the exclusion of Roxanne, where her share of the community was substantial.
The court also found William had wished to preserve EMCO through transferring a
majority interest to Michael and giving him sole management authority, because William
did not believe it could be run with a family committee that included people who had
never been actively involved with the company. Accordingly, neither Michael nor his
siblings received any undue benefit under the will and trust, and Roxanne failed to carry
her burden of establishing undue influence on Michael’s part. William had testamentary
capacity on June 21, a point even Roxanne’s expert conceded, and the expert did not
convince the court that William was suffering from HE.16 Michael and Debra also
satisfied their burden of establishing the due execution of the will.

16 Therefore, Roxanne’s constant characterizations of William as being both physically
and mentally debilitated (and extensive citation of contrary evidence to this effect) are
not well taken because they fly in the face of the substantial evidence that supports the
judgment. We therefore disregard them.

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 DISCUSSION

I. There Was Proper Execution of the Will

Roxanne argues William did not comply with the requirement for due execution
of a will in section 6110 that it “shall be witnessed by being signed . . . by at least two
persons each of whom (A) . . . witnessed either the signing of the will[,] or the testator’s
acknowledgment of the signature or of the will[;] and (B) understand that the instrument
they sign is the testator’s will.” (§ 6110, subd. (c)(1).) She notes neither the husband of
the notary nor the healthcare worker could recall seeing William in the act of signing the
will (and neither of whom attested to William making any declaration about signing
a will). Roxanne asserts this testimony overcomes the presumption of due execution
arising from the attestation clause in the will. (Estate of Ben-Ali (2013) 216 Cal.App.4th
1026,1036 (Ben-Ali).)

“The question of due execution of a will is one of fact, and the probate court’s
finding will not be reversed on appeal if there is any substantial evidence to sustain it.”
(Ben-Ali, supra, 216 Cal.App.4th at p. 1033.) The testimony of the husband is somewhat
ambiguous as to whether he could not recall any of the circumstances, or could in fact
recall that he did not actually see William sign the will; however, he acknowledged that
he would not have signed the attestation clause if its contents were not true. The
healthcare worker’s testimony, however, is clear that she neither actually saw William
sign the will nor heard him acknowledge signing a will.

Nevertheless, “[a] will not executed in compliance with section 6110, subdivision
(c)(1) may . . . be admitted to probate if the proponent establishes by clear and
convincing evidence [that] the testator intended the instrument to constitute his will at the
time he signed it” under subdivision (c)(2) of the statute (hereafter section 6110(c)(2)).
(Ben-Ali, supra, 216 Cal.App.4th at p. 1037 [though finding insufficient evidence to
sustain such a finding].) This is a “broad and remedial” statute, the goal of which was

17
intended to “moderniz[e] probate procedure” to prevent procedural omissions from
overriding a testator’s intent where the process of executing the instrument is defective.
(Estate of Stoker (2011) 193 Cal.App.4th 236, 242, 244.)

In our view, a reasonable trier of fact could have found this standard satisfied
on the evidence we have recited at length above (and will not reiterate here) regarding
William’s conduct in his last weeks. Roxanne, after initially ignoring this issue in her
opening brief, asserts in her reply brief that section 6110(c)(2) cannot apply where both
subscribing witnesses have testified. She rests this assertion solely on section 8253,
which permits testimony of other witnesses “to prove the due execution of the will” only
where “no subscribing witness is available.” (Italics added.) She does not provide any
authority applying section 8253 to section 6110(c)(2), and we decline to limit the latter
statute in this fashion because it does not involve proof of due execution but rather
involves proof of the testator’s intent where the prescribed proof of due execution is
lacking. Her alternative argument—that we cannot find William intended the document
to be his will because it did not include provisions for profit sharing—is subsumed within
our rejection later in the Discussion (post, pp. 23-25) of her unpersuasive separate
arguments to this effect. We therefore find this claim to be without merit.

II. The Privilege Ruling Was Immaterial

During the questioning of the Boutin corporate attorney (who had provided legal
services for EMCO for 15 years), Roxanne’s lawyer attempted to ask about the substance
of a five-minute phone call the Boutin attorney had with William on June 24, 2010—in
particular, whether this involved William’s corporate actions as the board of EMCO (that
we described above taking place on that date) or the trust and will executed three days
earlier. The trial court sustained Michael’s invocation of the attorney-client privilege
between the Boutin firm and William’s attorney. The Boutin attorney did testify that
the phone call had “summarized for [William] a recommendation that I had” regarding

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“corporate matters”; the Boutin attorney had not discussed with William before this
phone call either the subject of the latter having executed a will conveying the latter’s
interest in EMCO to Michael, or of effecting William’s intent to share EMCO profits
equally among the siblings.

Roxanne argues communications between William and the Boutin attorney are not
privileged because William is a deceased client and the subject involves an issue among
parties claiming through William, or his intentions regarding a testamentary instrument,
or the validity of the same. (Evid. Code, §§ 957, 961, 962.) As for the prejudice flowing
from this exclusion, her entire opening argument is that it “preclud[ed] evidence further
demonstrating the foiling of [William’s] intentions[,] and bolstering the presumption of
undue influence” (italics added), relying on a case excusing an appellant for the failure to
have made an offer of proof as a prerequisite to arguing prejudice on appeal in which a
trial court had excluded an entire class of evidence. (Lawless v. Calaway (1944)
24 Cal.2d 81, 91 [expert testimony on an issue requiring it].) In her reply brief, Roxanne
contends she has “raise[d] the inferences (a) that disclosure of [the phone call’s content]
would have impeached the validity of the Will/Trust, and (b) that a different result
therefore would have been ‘probable.’ ” (Italics added.)

Our obligation to consider an argument arises only where an appellant has fulfilled
the duty to establish prejudice. (Adams v. MHC Colony Park, L.P. (2014)
224 Cal.App.4th 601, 614-615.) In considering prejudice, “[w]e will not reverse the
judgment on the basis of speculation regarding” facts dehors the record. (People v. Ayala
(2000) 24 Cal.4th 243, 267 [unknown factual issues defense counsel might have raised if
the hearing with prosecution had not been ex parte are not a basis for reversal].)

We do not need to resolve the issue of attorney-client privilege in the context of
the multiple roles in the present case in which the Boutin firm may have served EMCO,
William as an individual, William’s attorney, or Michael as an executor and trustee.

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Roxanne’s speculations (garbed as they are in the sheep’s clothing of “inferences”) that
the answers the Boutin attorney might have given on the subject of the corporate matters
he discussed in the phone call with William might have been a smoking gun on the issue
of testamentary intent are plainly inadequate to establish the required prejudice. Having
thus forfeited our plenary consideration of the argument, it is sufficient for us to note that
there is otherwise an abundance of evidence of William’s goals in estate planning that
culminated in the instruments executed on June 21, and of his actual corporate actions on
June 24. We thus do not believe it is reasonably probable that any testimony regarding
the corporate matters discussed in the phone call, which Roxanne acknowledges would
simply “further demonstrat[e]” and “bolster[]” her case, would have resulted in a more
favorable outcome for Roxanne. As a result, we find this argument to lack merit.

III. A Presumption of Undue Influence Did Not Arise

Ordinarily, a contestant bears the burden of proving with clear and convincing
evidence that a testamentary instrument was the result of undue influence. However,
if the contestant produces substantial evidence that the proponent of the testamentary
disposition was in a confidential relationship with the decedent, actively participated in
the actual preparation or execution of the testamentary instrument, and received an undue
benefit from the instrument, the burden shifts and it is now the proponent who must prove
by a preponderance of evidence that the instrument is not a product of undue influence.
Whether the presumption arose and (if so) whether it was rebutted are questions for the
trier of fact. (Conservatorship of Davidson (2003) 113 Cal.App.4th 1035, 1059-1060;
§§ 6104, 8252, subd. (a).) The trier of fact’s determination of this issue “is upheld in
nearly all cases.” (14 Witkin, Summary of Cal. Law (10th ed. 2005) Wills and Probate,
§ 130, p. 193.)

Roxanne asserts “[t]here is overwhelming direct and circumstantial evidence” of
the three necessary elements giving rise to a presumption of undue influence, and thus

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the trial court erred in failing to shift the burden to Michael to defeat the presumption.
The presence of a confidential relationship between Michael and William is not
reasonably subject to dispute and, while we disagree that the evidence summarized above
established that Michael “was the driving force in the preparation and execution of the
challenged Will/Trust,” we will assume there is sufficient evidence to give rise to an
inference that Michael played at least some role in their preparation by his facilitation of
his father’s wishes to have the Boutin firm involved in the drafting of the instruments and
his presence at the meeting between the Boutin firm and William’s attorney (Estate of
Swetmann (2000) 85 Cal.App.4th 807, 821 [procuring attorney of itself insufficient; must
be evidence beneficiary had some effect on contents of will]); we note that Michael does
not argue to the contrary on appeal. We turn to the third element, which is the crux of
Roxanne’s contention (and indeed her appeal).

The determination of whether Michael received an undue benefit “clearly entails a
qualitative assessment of the relationship between the decedent and the beneficiary” that
necessarily empowers the trier of fact to determine “what profit would be ‘due.’ ” (Estate
of Sarabia (1990) 221 Cal.App.3d 599, 607, italics added.) This assessment cannot rest
on the premise that an omitted heir has some entitlement overriding the freedom to devise
property as one chooses, and thus a proponent’s status as a “natural” object of bounty for
the decedent is a relevant but not determinative factor because it would otherwise be
a shield for those natural objects of bounty poised to exercise undue influence. (Ibid.;
Estate of White (1954) 128 Cal.App.2d 659, 667 [status as alleged unnatural object of
bounty immaterial]; Estate of Abert (1949) 91 Cal.App.2d 50, 58-59 [status as alleged
natural object of bounty immaterial].) In her derivative-champion role, Roxanne asserts
the bequest to Michael of William’s entire interest in EMCO—and thus the right to
William’s entire share of EMCO profits—is contrary to the undisputed evidence that
William expressly desired a split of EMCO profits equally among the siblings. She

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contends this established Michael received more than his due under the instrument as a
matter of law.17

This argument borders on the frivolous, attempting to recast all the evidence we
summarized above as establishing that William’s profit sharing object was the sine qua
non of his estate planning. It is essentially undisputed that William’s consistent and
foremost goal was to ensure that EMCO continued as a successful business under the
control of Michael, which required insulating it from Roxanne’s control in particular
or the problems of a family management committee in general (that could also result in
Douglas ceding control to Roxanne). It is also essentially undisputed that William had
profit sharing as a goal, but the unspecified complications of providing for this without
also providing ownership interests to Debra and Douglas had led William to subordinate
this aim in the estate planning process itself. It was only Debra’s emotional harangue—
after the will and trust’s execution—that induced William to take more immediate action
independent of the testamentary instruments themselves to achieve it; there is an absence
of any evidence that William wanted to change the testamentary instruments themselves.
He in fact continued to attempt to convey a majority share of EMCO through corporate
action to Michael at the same time as the execution of the instruments. Presumably,
William had enough trust in Michael to provide for his siblings even absent their ability
to compel Michael to do so (which indeed Michael attempted unsuccessfully to do after
William’s death, his siblings instead insisting on a grant of ownership interests that their
father expressly did not want to give them): On three separate occasions in June 2010,
William executed instruments giving Michael his entire ownership interest in EMCO.
This evidence gives utter lie to a claim that Michael received an undue benefit. We

17 Roxanne does not appear to challenge the trial court’s finding that collectively the
siblings did not receive an undue benefit (in the form of the entirety of their father’s
property interests) where she had a substantial community interest herself.

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therefore find without merit Roxanne’s argument that the trial court erred in failing to
shift the burden to Michael to refute his undue influence in the instruments’ execution.

IV. The Instruments Do Not Lack Testamentary Intent

Couching her same claim in the form of an alternative basis for invalidating a
testamentary instrument under section 8252, Roxanne makes a confusing argument that
the provision (contained in what William indisputably intended to be a testamentary
instrument) conveying William’s entire interest in EMCO (and the right to half of the
profits) did not reflect his actual testamentary intent because it did not result in a division
of EMCO profits among the siblings. Therefore, “the Will/Trust provisions as to EMCO
are invalid” (italics added). However, she also argues elsewhere that the instruments as a
whole are invalid on this basis.

The authority she cites does not illuminate her argument. Estate of Wong (1995)
40 Cal.App.4th 1198 involves the issue of whether a holographic writing was intended to
be a will (on which issue its conformity with the decedent’s testamentary intentions are
immaterial). The court stated, “Section 8252 is meant to apply to documents that are
clearly wills. Thus, [a contestant] challenging a document that apparently is a will and
does exhibit testamentary intent, must prove testamentary intent was lacking due,
for example, to undue influence. Where the question is whether a document exhibits
testamentary intent, clearly this [statute] does not apply.” (Id. at p. 1205.) This is not the
present circumstance. Estate of Llewellyn (1948) 83 Cal.App.2d 534, 563 involves a
discussion of insufficient evidence of undue influence, not an issue in this context. Estate
of Smith (1998) 61 Cal.App.4th 259 (Smith) takes pains to clarify that “[i]n a will contest,
the issues are limited to those concerning whether the document at issue is or is not the
testator’s duly executed, valid will.” (Id. at p. 265, italics added.) As a result, extrinsic
evidence of mistake as to the effect of the testamentary instrument in the disposition of
property is not a basis for invalidating the instrument as lacking testamentary intent. (Id.

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at pp. 262, 266 [extrinsic evidence cannot be admitted “ ‘for the purpose of proving the
meaning the testator attributed to specific provisions,’ ” quoting Estate of Sargavak
(1950) 35 Cal.2d 93, 96-97 (will thought to be mortgage)].) “ ‘Testamentary intent’ in
this context does not refer to the testator’s intentions regarding particular dispositions of
property. It means the testator’s general intent to make a revocable disposition of . . .
property . . . .” (Smith, supra, 61 Cal.App.4th at p. 270.) We are thus left adrift in our
attempts to discern how “testamentary intent” untethered to undue influence, fraud,
duress, mistake, or revocation (section 8252) has any meaning in invalidating an
instrument otherwise intended to be testamentary in nature.

However, our puzzlement does not need to be assuaged. Roxanne in any event
does not provide any authority for invalidating an instrument based on a provision that
does not reflect extrinsic evidence of a purportedly contrary intent. Though she cites
authority to the effect that courts must preserve the intention of the testator, all rules of
construction of instruments yield to a paramount principle: It is the intention of the
testator as expressed in the testamentary instrument that is controlling. (Smith, supra,
61 Cal.App.4th at p. 271.) Her arguments in her reply brief on the need for provisions in
an instrument to reflect the testator’s intent accurately are unsupported and run afoul of
the express holding of Smith, where clearly the testator was mistaken about the result but
this was not a sufficient basis to invalidate the will; a “testamentary intent” contrary to
the expressed testamentary intent cannot be treated any differently. Consequently,
evidence of William’s goal of profit sharing cannot invalidate an instrument conveying
his interest in EMCO to Michael.18 Nor, for that matter, does a “contrary” intent even

18 She also argues the instruments as drafted could not effectively convey William’s
interest in EMCO under corporate law. That would be the subject of a malpractice action
on the part of the beneficiary, but does not shed any light on the subject of testamentary
intent.

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appear. As we have explained in rejecting her theory of undue benefit to Michael, there
is an absence of evidence that William thought the conveyance of his EMCO interest
would necessarily impede a profit sharing goal that could be achieved through other
means (that he ultimately did not have time to complete). We thus again find Roxanne’s
argument to lack merit.

DISPOSITION

Roxanne’s motion for judicial notice is denied. The judgments are affirmed, and
Michael shall recover his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)

BUTZ , J.

We concur:

RAYE , P. J.

MAURO , J.

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