Filed 10/27/20 Estate of Istrin CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION ONE
Estate of HERMAN ISTRIN, B302631
Deceased.
(Los Angeles County
Super. Ct. No.
16STPB06138)
JASON ISTRIN,
Contestant and Appellant,
v.
HAROLD ISTRIN, Individually
and as Executor, etc.,
Objector and Respondent.
APPEAL from an order of the Superior Court of Los
Angeles County, Brenda, J. Penny, Judge. Affirmed.
RMO, Scott E. Rahn, Sean D. Muntz, and Kevin W. Yang
for Contestant and Appellant.
Oldman, Cooley, Sallus, Birnberg, Coleman & Gold, Marc
L. Sallus, and Peta-Gay Gordon for Objector and Respondent.
_______________________________
Jason Istrin (Jason) appeals from an order entered after
the probate court sustained without leave to amend Harold
Istrin’s (Harold) demurrer to Jason’s Second Amended Petition to
Revoke Probate and denied the petition with prejudice. We
affirm.
BACKGROUND
I. Preprobate Petitions and Will Contests
Decedent Herman Istrin (Herman) died on May 27, 2016.
On November 15, 2016, Herman’s wife, Marta Istrin (Marta),
filed a petition for probate of a will dated February 16, 2016.
Under this purported will, appellant Jason, Herman’s grandson,
was to take a one-time gift of $3 million, plus four “real estate
properties in any state of the United States of America.”
On February 21, 2017, respondent Harold, Herman’s son
and Jason’s uncle, filed objections to Marta’s petition and a
contest of the February 16, 2016 purported will Marta offered.
The following day, on February 22, 2017, Harold filed a petition
for probate of a will dated October 19, 1993, and two codicils
dated April 25, 2015 and December 29, 2015 (the codicils). As set
forth in the codicils, under the October 19, 1993 will, Jason was
to take $600,000, which was to be transferred to a trust
established for Jason’s benefit in the Istrin Family Trust dated
October 19, 1993.
On February 23, 2017, the probate court held a hearing on
Marta’s petition. An attorney representing Jason appeared at
the hearing and identified Jason as a petitioner, although Jason
had not filed or joined a petition or contest in the present matter
2
regarding Herman’s will(s). Jason was a petitioner in a related
matter before the probate court regarding the Istrin Family Trust
in which he offered a February 16, 2016 document—different
from the February 16, 2016 document Marta offered as Herman’s
will—purportedly expressing Herman’s intent to leave him $1
million, plus four of Herman’s properties (or $2 million less than
the amount he was to take under the purported will Marta
offered).
On March 16, 2017, Marta filed objections to Harold’s
petition and a contest of the October 19, 1993 will and codicils
Harold offered. Although Jason contended in the trust matter
that he was entitled to more from Herman’s estate than the
October 19, 1993 will and codicils provided, he did not file a will
contest or join Marta’s contest. Nonetheless, he was represented
by counsel at hearings in this matter regarding Marta’s and
Harold’s petitions and will contests.
Marta litigated her will contest in the probate court for
more than a year before she and Harold reached a settlement. At
an April 30, 2018 hearing at which Jason’s counsel was present,
the probate court granted Harold’s February 22, 2017 petition for
probate of the October 19, 1993 will and codicils, pursuant to the
settlement agreement between Marta and Harold. The court also
appointed Harold as the personal representative of Herman’s
estate. Without objection from Jason’s counsel, the court
admitted the October 19, 1993 will and codicils to probate, and
the court denied with prejudice Marta’s objections to Harold’s
petition and contest of the October 19, 1993 will and codicils and
her petition for probate of the purported February 16, 2016 will,
based on the settlement. At the same hearing, Jason’s counsel
3
informed the court that Jason would be filing a first amended
petition in the trust matter.
II. Jason’s Petitions to Revoke Probate
On June 1, 2018, about a month after the probate court
admitted the October 19, 1993 will and codicils to probate, Jason
filed a petition for probate of a February 16, 2016 will—the same
document (or a version of the document) Jason had submitted to
the probate court more than a year before in connection with his
petition in the trust matter, as referenced above.
On August 21, 2018, Jason filed a Petition to Revoke
Probate. The probate court sustained with leave to amend
Harold’s demurrers to this petition and Jason’s November 30,
2018 Amended Petition to Revoke Probate.
On February 11, 2019, Jason filed his Second Amended
Petition to Revoke Probate—the pleading before us in this
appeal. Therein, he stated he did not file a petition or will
contest before the probate court admitted the October 19, 1993
will and codicils to probate because Marta “had priority over
[him], and as such, he did not file a competing petition or join
Marta[’s] petition at that time.” He also alleged Herman
“executed the February 16, 2016 will [Jason offered, as opposed to
the different purported February 16, 2016 will Marta offered] as
part of a single document which also contained modifications to
decedent’s trust.” (Italics omitted.)
Harold demurred to Jason’s Second Amended Petition to
Revoke Probate, arguing, among other things, that the petition is
barred by Probate Code1 section 8270, subdivision (a), which
provides, in pertinent part: “Within 120 days after a will is
1 Further statutory references are to the Probate Code.
4
admitted to probate, any interested person, other than a party to
a will contest and other than a person who had actual notice of a
will contest in time to have joined the contest, may petition the
court to revoke the probate of the will.” (Italics added.) Harold
asserted, because Jason had actual notice of Marta’s contest of
the October 19, 1993 will and codicils in time to have joined the
contest, but he failed to join, he is barred under section 8270 as a
matter of law from petitioning the probate court to revoke
probate of the October 19, 1993 will and codicils. In opposition to
the demurrer, Jason argued, among other things, that section
8270 is not a bar to his petition to revoke probate because a “will
contest” within the meaning of the statute implies a trial and a
final judgment, which did not occur in this matter because Marta
and Harold settled their petitions and will contests before a trial
was held.
At a May 2, 2019 hearing, the probate court sustained
without leave to amend Harold’s demurrer to Jason’s Second
Amended Petition to Revoke Probate and denied the petition with
prejudice. Jason appealed.
At the time the parties filed their appellate briefs in this
matter, Jason was continuing to pursue relief in the trust matter
under the February 16, 2016 document he offered in both the
trust matter and this matter.
DISCUSSION
Jason contends the probate court erred in sustaining
Harold’s demurrer and denying with prejudice his Second
Amended Petition to Revoke Probate. In reviewing a trial court’s
order sustaining a demurrer, “we examine the [petition] de novo.”
(McCall v. PacifiCare of California (2001) 25 Cal.4th 412, 415.)
5
As set forth above, section 8270, subdivision (a) bars a
petition to revoke the probate of a will if the petitioner was a
party to a will contest or “had actual notice of a will contest in
time to have joined the contest.” Jason, who appeared through
counsel in the proceedings regarding Marta’s will contest, clearly
had actual notice of Marta’s contest of the October 19, 1993 will
and codicils more than a year before the probate court granted
Harold’s petition for probate of the October 19, 1993 will and
codicils, admitted the October 19, 1993 will and codicils to
probate, and denied with prejudice Marta’s objections to and
contest of the October 19, 1993 will and codicils, pursuant to the
settlement between Marta and Harold. Jason did not join
Marta’s contest or object to the probate court’s disposition of
Marta’s and Harold’s petitions and will contests based on the
settlement.
The only exceptions to section 8270, subdivision (a)’s bar on
petitions to revoke the probate of a will, where the petitioner was
a party to a will contest or had actual notice of a will contest in
time to have joined the contest, apply to minors or persons who
were “incompetent and had no guardian or conservator at the
time a will was admitted to probate,” neither of which apply to
Jason. (§ 8270, subd. (b).) Jason’s statement in his Second
Amended Petition to Revoke Probate that Marta “had priority
over [him], and as such, he did not file a competing petition or
join Marta[’s] petition at that time” is not an exception to section
8270, subdivision (a)’s bar, and Jason can cite no authority
indicating otherwise.
The language in section 8270, subdivision (a) barring
petitions to revoke probate “ ‘was aimed exclusively at those who
had full opportunity to contest before probate but preferred to be
6
dilatory, waiting to see what might happen and then filing their
contests after probate if disappointed in the outcome of the first
contest.’ ” (Estate of Moss (2012) 204 Cal.App.4th 521, 537 (Moss)
[interpreting language in section 8270, subdivision (a)], quoting
Estate of Meyer (1953) 116 Cal.App.2d 498, 501 (Meyer)
[interpreting language in section 8270’s statutory predecessor,
former section 380].) Jason argues he did not have a full
opportunity to contest the October 19, 1993 will and codicils
before they were admitted to probate, notwithstanding that
Marta litigated her contest for more than a year, and Jason’s
counsel participated in the proceedings with knowledge that
Jason claimed he was entitled to more from Herman’s estate than
the October 19, 1993 will and codicils provided. Jason bases his
argument on his assertion that Marta’s contest of the October 19,
1993 will and codicils was not a contest within the meaning of
section 8270, subdivision (a) because it was resolved by a
settlement rather than a trial. He relies on case law stating:
“When the contest is dismissed before trial of the issues there
ceases to be a contest; in other words, there has not been a
determination of the issues. A ‘contest’ implies a trial and final
judgment. The mere institution of a contest and dismissal
without a trial is not a contest.” (Estate of Hoover (1934) 139
Cal.App. 753, 760 (Hoover); Moss, at p. 536.) The cases on which
Jason relies are factually distinguishable and demonstrate why
his petition is barred under section 8270, subdivision (a).
In Hoover, supra, 139 Cal.App. 753, the petitioner filed a
contest to the admission to probate of a will and codicils, but she
voluntarily dismissed the contest without prejudice before a
hearing on the contest. After the will and codicils were admitted
to probate, the same petitioner filed a petition for revocation of
7
probate of the will and codicils. (Id. at p. 755.) The Court of
Appeal concluded former section 380, section 8270’s statutory
predecessor, prohibits “two successive trials of the same issues”
and was not a bar to the postprobate petition because the
petitioner voluntarily dismissed her preprobate petition before
trial and there had been no determination of the issues. (Hoover,
at pp. 759-760.) Here, in contrast, after more than a year of
litigation, the probate court denied with prejudice Marta’s contest
of the October 19, 1993 will and codicils and granted Harold’s
petition for probate of the October 19, 1993 will and codicils,
based on the settlement between Marta and Harold. There was a
determination of the issues in Marta’s will contest—a contest of
which Jason had actual notice in time to join before the probate
court admitted the October 1993 will and codicils to probate.
In Meyer, supra, 116 Cal.App.2d 498, the Court of Appeal
concluded former section 380 did not bar petitions for revocation
of the probate of a will where the petitioners had actual notice of
a preprobate contest of a will because they were witnesses at the
trial of the will contest. The appellate court explained the
petitioners did not know they were interested persons until an
earlier will naming them as beneficiaries was introduced during
the trial. (Id. at pp. 499-500.) The court held that, “although
having actual notice of a preprobate contest, a person cannot be
said to have had such notice in time to have joined in the contest
when he did not possess, expressly or impliedly, a knowledge of
his right to contest as an interested person.” (Id. at pp. 501-502.)
Here, in contrast, during the entire year that Marta litigated her
contest of the October 19, 1993 will and codicils, Jason had
knowledge of his right to contest the October 19, 1993 will and
codicils, as a beneficiary of the purported February 16, 2016 will
8
Marta offered, as well as the February 16, 2016 document he
submitted in the trust matter and now claims is Herman’s true
will. Jason had actual notice of Marta’s will contest with ample
time to have joined before the probate court denied the contest
with prejudice based on the settlement.
Finally, in Moss, supra, 204 Cal.App.4th 521, the last of the
three cases on which Jason relies, the probate court dismissed
the appellant’s and others’ preprobate will contests and admitted
a will to probate “under the apparent misconception that the
contestants could simply file postprobate contests.” (Id. at p.
540.) The Court of Appeal concluded section 8270, subdivision (a)
does not bar a petition to revoke probate of a will where the
probate court failed to consider preprobate contests and “in effect
treated the preprobate contests as if [the] contestants had
voluntarily dismissed their contests.” (Moss, at p. 540.) Like the
appellate court in Hoover, supra, the appellate court in Moss
reasoned that a will contest that is voluntarily dismissed before a
determination of issues is not a contest within the meaning of
section 8270, subdivision (a). (Moss, at p. 540.) Here, in contrast,
the probate court did not fail to consider Marta’s will contest, nor
did Marta voluntarily dismiss her will contest without prejudice.
The probate court denied Marta’s will contest with prejudice and
granted Harold’s petition for probate of the October 19, 1993 will
and codicils, based on the parties’ settlement. This constitutes a
will contest within the meaning of section 8270, subdivision (a).
It was finally determined; Marta could not come back and reopen
her contest after it was denied with prejudice. Jason failed to
join that will contest, and he is now barred by statute from
petitioning to revoke probate.
9
As explained in Moss, supra, 204 Cal.App.4th at page 537,
section 8270, subdivision (a) was aimed at preventing the conduct
Jason engaged in here. He “ ‘had full opportunity to contest
before probate but preferred to be dilatory, waiting to see what
might happen and then filing [his] contest[] after probate
[because he was] disappointed in the outcome of the first
contest.’ ” (Moss, at p. 537.) He sat by and watched as Marta
litigated her contest of the October 19, 1993 will and codicils for
over a year, all the while knowing he was a beneficiary under the
purported February 16, 2016 will Marta offered, as well as the
February 16, 2016 document he submitted in the trust matter
and now claims is Herman’s true will.2 He failed to object when
the probate court denied Marta’s will contest with prejudice,
granted Harold’s petition, and admitted the October 19, 1993 will
and codicils to probate, based on the settlement. His petition to
revoke probate is barred under section 8270, subdivision (a) as a
matter of law because he had actual notice of Marta’s will contest
in time to have joined the contest. Jason cannot amend his
petition to plead around section 8270, subdivision (a)’s bar, and
he does not suggest an amendment. Accordingly, the trial court
did not err in sustaining without leave to amend Harold’s
demurrer to Jason’s Second Amended Petition to Revoke Probate
and denying the petition with prejudice.3
2 As set forth above, Jason stood to take more from
Herman’s estate under the purported February 16, 2016 will
Marta offered than from either the October 19, 1993 will and
codicils or the February 16, 2016 document he now claims is
Herman’s true will.
3Because we conclude section 8270, subdivision (a) bars
Jason’s Second Amended Petition to Revoke Probate as a matter
10
DISPOSITION
The order is affirmed. Respondent is entitled to recover
costs on appeal.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
SINANIAN, J.*
of law, we need not address the other grounds on which Harold
argued the probate court could sustain the demurrer.
Judge of the Superior Court, assigned by the Chief Justice
*
pursuant to article VI, section 6 of the California Constitution.
11