Estate of Wagner CA1/2

Filed 12/17/20 Estate of Wagner CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Estate of ALLAN DAVID WAGNER,
Deceased.
DIANA QUINTANA,
Petitioner and Appellant, A154747
v.
LAURA BRENNAN, (Alameda County Super.
Objector and Respondent. Ct. No. RP17871276)

Allen David Wagner died suddenly in 2017, unmarried, childless and
without a registered domestic partner. He was survived by his live-in
partner of almost 30 years, Diana Quintana, and his relatives, including his
sister, Laura Brennan. Quintana petitioned the probate court to, among
other things, admit into probate as Wagner’s will a 2006 document that he
prepared and signed as part of his renunciation of his right to serve as a
personal representative of his mother’s estate, and Brennan objected. If the
document is a will, Wagner’s estate would be left to Quintana; if it is not, it
would pass intestate to relatives, including Brennan. The question before us
is whether, contrary to the probate court’s ruling, Quintana has shown by
clear and convincing evidence that this 2006 document was Wagner’s will.
We conclude that she has made this showing and reverse.

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 BACKGROUND
I.
Quintana’s Petition
In August 2017, Quintana filed a petition, which she later
supplemented, in Alameda County Superior Court for the probate of a lost
will regarding Wagner’s estate, which she estimated had a value of $888,143.
She asked the court to admit two possible wills into probate.
First, Quintana asked the court to admit a 2012 unsigned partnership
agreement between Wagner and herself. In a supporting declaration, she
stated she had been Wagner’s “life partner” since 1989, and that they often
had told each other that they wanted all their worldly possessions to go to the
other upon their death. In December 2011, they discussed formalizing this
commitment in a written partnership agreement, including with friends such
as Michael Mitchner and Paulette Landry. Working from an online form,
they drafted a Domestic Partnership Agreement (2012 Agreement). It stated
that neither had any rights regarding the real or personal property owned by
the other, but that, “in the event of death,” “[t]he total owned by one partner
shall transfer to the other without question.”
Quintana stated that she and Wagner signed the 2012 Agreement in
January 2012 and filed it away in a box with other important papers.
However, she attached only an unsigned copy of the 2012 Agreement to her
declaration. She wrote that the couple accidentally disposed of the only
signed version after a water leak in their garage had caused boxes stored
there to become water soaked and moldy. The couple disposed of these boxes,
and Quintana did not discover until after Wagner’s passing that among them
had been the box containing the signed 2012 Agreement. She printed out an

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unsigned copy of the 2012 Agreement from the family computer on which she
and Wagner had drafted it.
Mitchner and Landry, long-time friends of Wagner, also submitted
supporting declarations. Mitchner stated that Wagner and Quintana had a
decades-long, close and loving relationship; that in December 2011, Wagner
told Quintana regarding the 2012 Agreement, “ ‘If anything ever happens to
me everything is yours”; that in early 2012, Wagner told Mitchner “the
paperwork had all been signed”; and that Mitchner had “absolute certainty
that [Wagner] had every intention that his estate go to Diana Quintana.”
Landry stated that Wagner and Quintana “were a loving and devoted couple”
who in December 2011 told her they were going to draft and sign an
agreement to leave each other all that they owned. In January 2012, Wagner
showed her the signed 2012 Agreement “and said words to the effect that
‘Diana will not have to worry if something happens to me.’ ”
Quintana subsequently supplemented her petition to contend that she
recently had discovered a typed document entitled “September 2006
RENUNCIATION” regarding the “Estate of Margaret Rita Wagner”
(2006 Renunciation). Quintana stated that Wagner’s mother had died in
September 2006, and Wagner “did not want to serve as Executor because the
estate was heavily loaded with debt and he was worried that if the estate did
not have enough money to pay the debt that he would become personally
liable for the debt.” She further stated that Wagner sent the 2006
Renunciation to his mother’s Personal Representative, “reiterating his
renunciation of his parent’s estate and stat[ing] that all his assets would
transfer upon his death to me. [Wagner] wanted to make his testamentary
intent clear to his family by telling them that upon his death everything that

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he had in life was being given to me.” She attached a signed copy of the 2006
Renunciation to her supporting declaration. The body of it states:
“I Allan David Wagner in Renunciation of this Estate. If anything
should happen to me while or after this estate is settled. All my personal
property and everything that is mine and in my possession, including all
property financial and otherwise would transfer to my wife Diana Marie
Quintana. . . . In declining to be representative in this matter no assets or
property of Robert Lee or Margaret Rita Wagner, my parents shall not be a
burden to myself or my spouse/partner Diana Marie Quintana. I control only
my property which will transfer without question to Diana in the event of my
death. No debt or property held by my parents shall transfer to myself or
Diana. I decline to be responsible for any debt owed and have no
responsibility.”1
Quintana also declared that on October 2, 2006, Wagner “signed a
notarized document entitled ‘Renunciation’ with regard to his declination to
serve as the personal Representative” of his mother’s estate.” She attached to
her declaration a copy of this second renunciation document. The document,
notarized in Pennsylvania, states, “And now, comes Allan Wagner, Personal
Representative of the Estate of Margaret Rita Wagner, deceased
September 25, 2006, and he renouncing any right to be appointed Personal
Representatives concerning his mother’s estate, and he further consents to
the appointment of his sister, Lynn Chadderton, as Personal Representatives
in his stead.”
Quintana argued that the court should admit into probate as Wagner’s
will either the 2012 Agreement or the 2006 Renunciation.

1We quote from documents and elsewhere in the record as the
language appears, without correction.
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 II.
The Evidentiary Hearing Regarding Quintana’s Petition
In April 2018, the court held an evidentiary hearing to determine
whether the 2006 Renunciation or the 2012 Agreement should be admitted
into probate as Wagner’s will. The hearing focused on whether the court
should admit either document under Probate Code section 6110
(section 6110). Section 6110 provides that a will “shall be in writing” and
“shall be signed.” (§ 6110, subds. (a), (b).) Furthermore, a will “shall be
witnessed by being signed” unless “the proponent of the will establishes by
clear and convincing evidence that, at the time the testator signed the will,
the testator intended the will to constitute the testator’s will.” (§ 6110,
subd. (c)(1), (2).) Quintana presented the testimony of several witnesses, as
well as certain documents. Brennan did not present any evidence.
A. Testimony by Friends of Wagner and Quintana
Mitchner and Landry provided testimony that was consistent with
their declarations. They focused on Quintana and Wagner’s longstanding,
close and loving relationship and the couple’s discussion and creation of the
2012 Agreement around the 2012 New Year. Neither Mitchner nor Landry
testified about reviewing the content of a signed copy of the 2012 Agreement,
but Landry testified that soon after the 2012 New Year, Wagner showed her
an agreement that was signed. Both also testified that Wagner was not close
to his family and that none of his family members attended his funeral. A
third friend also testified that Quintana and Wagner had a longstanding,
close and loving relationship.
B. Quintana’s Testimony
Quintana also gave testimony that was consistent with her
declarations. She testified that Wagner, she and her then almost four-year-

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old daughter began living together about two months after she and Wagner
met in 1989. Wagner worked for a water district, eventually as a water
treatment supervisor. He retired and then returned to work until he died.
Quintana worked and went to school. The couple rented their home until
2009, when they purchased a house in Fremont, California. Although in 1990
Wagner asked and received her mother’s permission to marry Quintana, they
did not marry because “[w]e got so busy in life.”
Regarding the couple’s finances, Quintana testified that Wagner’s work
compensation eventually reached six figures a year, while Quintana’s was as
high as $70,000 a year. She and Wagner “put in together on everything from
the very beginning.” At first, they kept separate checking accounts, but then
shared one account. They split equally the cost of the rent and, later, the
mortgage, but the house was purchased in Wagner’s name “for tax purposes.”
They also split equally the rest of their expenses, such as for groceries and
utilities. They both took care of her daughter, and together paid for the
child’s college education. As indicated in the 2012 Agreement, they agreed
that, “while we are living and breathing and on God’s green earth, we kept
everything the same way we have always done because it worked for us,” but
that, should one of them die, “then the other would have totally every
possession” of the other. Wagner also agreed to take care of Quintana’s
daughter in the event of Quintana’s death.
Evidence was also introduced that Wagner filed paperwork with his
lender authorizing Quintana to make decisions about his account, gave their
homeowner’s association permission to discuss all residence matters with her,
and referred to her as his “spouse” or “wife” in loan and other documents.
Quintana testified that Wagner introduced her as his “wife” and she
introduced him as her “husband.”

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 Quintana further testified that when Wagner was preparing to retire,
he discussed with her that he wanted to designate Quintana and Wagner’s
sister, Brennan, as co-beneficiaries of his retirement account. He told her
that he was going to designate his sister as a beneficiary “because he was the
only one left standing.” Quintana testified that she understood the
retirement account would be divided equally between her and Brennan, and
that she told Wagner this was “fine.” The record indicates Wagner
memorialized this beneficiary designation in July 2012.
Quintana also testified about her recollection of the context in which
Wagner created the 2006 Renunciation. Wagner’s mother, who lived in
Pennsylvania, had asked Wagner to be the representative of her estate if she
passed away because she was fighting with Wagner’s sisters; his mother also
wanted to deed her house to him “because he would know how to handle
everything.” When Wagner’s mother passed away, Wagner found out “there
was a lot of debt” and a “lot of things he didn’t know about [and] didn’t want
to have anything to do about.” Wagner was under the impression that
whoever would be appointed the personal representative of his mother’s
estate would have some personal liability for those debts. He told Quintana,
“ ‘I have to put an end to this. We don’t want to be involved in it.’ ” Quintana
further testified that, “because our lives were so commingled together, he
didn’t want me to have to be paying for that debt, and he didn’t want to pay
for it himself. Because what we built, we built. What they built, they had.
He didn’t think it was fair that it got involved me [sic] or it even involved him
because they wouldn’t listen to him.”
Quintana recalled seeing Wagner drafting the 2006 Renunciation in
September 2006, but she saw only the first part of it. At the time, she
understood Wagner intended to leave everything to her as they had agreed.

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She found a copy of the 2006 Renunciation with the other renunciation
document and a deed to Wagner’s mother’s house, all of which were “with his
important papers to what happened with his mother’s estate.” She
understood the original of the 2006 Renunciation had been mailed to the
personal representative for the mother’s estate “[o]r to the people who did the
renunciation.”
Quintana also testified that Wagner was never close to his blood
relatives and that none of his family members attended his funeral. She
claimed that when she reached Brennan after Wagner’s death, Brennan “said
she didn’t want to have anything to do with our life.” Quintana understood
that Brennan was confined to a wheelchair and was paralyzed from the waist
down but Quintana still was “stunned” that Brennan did not attend Wagner’s
funeral.
C. Quintana’s Daughter’s Testimony
Quintana’s daughter testified that Wagner had been in her life for as
long as she could remember. Asked about her relationship with him, she
said, “He was my dad.” During her childhood and young adult years, they did
things together “[a]ll the time,” including going to dinner and camping. She
recalled him saying he wanted to leave everything to Quintana, and she said
that Wagner “always took care of us.” She said Wagner had gone back to see
his family in Pennsylvania about five times, recalled his mother visiting “a
long time ago” and recalled “the family” coming to visit one time. She
remembered that Wagner did not like one sister’s significant other, and that
he never talked to his nieces or nephews.

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 III.
The Court’s Order and Quintana’s Appeal
After hearing argument from counsel, the court took the matter under
submission. It subsequently issued a written order denying Quintana’s
petition. The court did not reject Quintana’s contentions, however. Rather, it
concluded that, “[g]iven the number of witnesses who testified that [Wagner]
had said that he wanted to take care of [Quintana] should he precede her in
death,” Quintana had “arguably” proven by the preponderance of the
evidence that Wagner had never intended to revoke the 2006 Renunciation,
and that it constituted his will. However, Quintana had not proven this by
the requisite clear and convincing evidence standard established under
section 6110, subdivision (c)(2). The court reasoned, “The evidence at trial
was that throughout their long relationship, [Wagner and Quintana] kept
their property separate and shared equally in household expenses, including
their mortgage payments on their home which was in [Wagner’s] name only.
The fact that each had their own separate property seems inconsistent with
the idea that after his death, [Wagner] wanted [Quintana] to inherit his
separate property.” Furthermore, “[t]he evidence at trial was that [Wagner]
has a presumably significant retirement account with his employer due to his
long employment with the [water district]. Upon his death, half of that
account would go to [Quintana] and the other half would go to [Wagner’s]
physically disabled sister, Laura Breman [sic].” This beneficiary designation
“unambiguously contradicts all of the testimony that [Wagner] wanted
everything to go to [Quintana] upon his death and creates substantial doubt
as to [Wagner’s] actual intent at the time he signed . . . [the 2006
Renunciation] . . . . Therefore, this Court cannot conclude that [Quintana]

9
proved by clear and convincing evidence that at the time decedent signed . . .
the original of [the 2006 Renunciation] . . . . [h]e intended [it] to be his will.”
DISCUSSION
I.
Standard of Review
Quintana argues we should independently review whether Wagner
executed the 2006 Reconciliation with testamentary intent, while Brennan
argues we should determine only if substantial evidence supports the court’s
order rejecting Quintana’s request that the 2006 Reconciliation be admitted
into probate as Wagner’s will. Quintana is correct. Brennan, rather than
contest any of the extrinsic evidence, argues only about what it signifies and
what inferences should be drawn from it, and the probate court’s order
indicates it thought Quintana may well have proved her contentions, if only
by a preponderance of the evidence. As one court held in similar
circumstances, “[w]hile here extrinsic evidence was admitted, it was
uncontradicted (even though subject to conflicting inferences [see Parsons v.
Bristol Dev. Co. [1965] 62 Cal.2d 861, 866, fn. 2]), thus this court has the
responsibility of independently determining whether the . . . instrument was
executed with testamentary intent. ([Id. at p.] 866; Estate of Wolfe [1968]
260 Cal.App.2d 587, 591-592; Estate of Kane [1965] 236 Cal.App.2d 51, 53.)”
(Estate of Geffene (1969) 1 Cal.App.3d 506, 512; accord, Estate of MacLeod
(1988) 206 Cal.App.3d 1235, 1241 [where extrinsic evidence is not in conflict,
the appellate court must “independently decide whether the document
offered . . . was executed with testamentary intent”].) Therefore, we will
independently review whether Quintana showed by clear and convincing

10
evidence that Wagner executed the 2006 Reconciliation with testamentary
intent.2
II.
The Law Regarding Testamentary Intent
As we have discussed, section 6110 provides that a document will be
admitted into probate as a will only if it is witnessed, unless “the proponent
of the will establishes by clear and convincing evidence that, at the time the
testator signed the will, the testator intended the will to constitute the
testator’s will.” (§ 6110, subd. (c)(2).) Section 6110 “reflects a judgment that
the formalities should not be allowed to defeat the testator’s intent when
clear and convincing evidence satisfies the evidentiary concerns underlying
the formalities of the statute of wills.” (Estate of Duke (2015) 61 Cal.4th 871,
893.) “The clear and convincing standard ‘ “requires a finding of high
probability . . . . ‘ “so clear as to leave no substantial doubt”; “sufficiently
strong to command the unhesitating assent of every reasonable mind.” ’ ” ’ ”
(Estate of Ben Ali (2013) 216 Cal.App.4th 1026, 1037.)
“The question of the intention of the parties as to the effect of the
instrument as . . . a testamentary instrument is a question of fact.” (Halldin
v. Usher (1958) 49 Cal.2d 749, 752.) The instrument “must appear from its
terms, viewed in the light of the surrounding circumstances, that it was
executed with testamentary intent. The testator must have intended, by the
particular instrument offered for probate, to make a revocable disposition of
his property to take effect upon his death.” (Estate of Sargavak (1950)
35 Cal.2d 93, 95; see also Prob. Code, § 6111.5 [“Extrinsic evidence is

2 Even if we were to review the court’s ruling for substantial evidence,
we would reach the same conclusion for the same reasons. That is, we would
reverse the court’s ruling because there is no substantial evidence to support
it.
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admissible to determine whether a document constitutes a will pursuant to
Section 6110”].) Nonetheless, “evidence of present testamentary intent
provided by the instrument at issue is paramount.” (Estate of Southworth
(1996) 51 Cal.App.4th 564, 571-572 [regarding a holographic will].) On the
other hand, “[i]f the informal document fails to disclose testamentary intent,
and merely expresses a desire or future intention, . . . it cannot be given effect
as a will. In other words, it must appear that the decedent intended to make
a testamentary disposition by that particular paper, and if this cannot be
shown it is immaterial that his testamentary intentions were in conformity
with it.” (14 Witkin, Summary of Cal. Law (11th ed. 2017) Wills and Probate,
§ 175.)
We are “concerned not with the meaning of the instrument, but with
the intention with which it was executed.” (Estate of Sargavak, supra,
35 Cal.2d at p. 96; Estate of Smith (1998) 61 Cal.App.4th 259, 270
[“ ‘Testamentary intent’ . . . means the testator’s general intent to make a
revocable disposition of . . . property”].) “No particular words are necessary to
show testamentary intent but it must satisfactorily appear from the proffered
document that the decedent intended by the very paper itself to make a
disposition of his property after his death.” (Estate of Geffene, 1 Cal.App.3d
at p. 512; Estate of Button (1930) 209 Cal. 325, 331 (Button) [“ ‘It must appear
only that the maker intended by it to dispose of property after his death’ ”].)
“ ‘Thus, a letter or other informal document will be sufficient if it discloses
the necessary testamentary intent, i.e., if it appears that the decedent
intended to direct the final disposition of his property after his death.’ ”
(Estate of Wong (1995) 40 Cal.App.4th 1198, 1205.) If so, “ ‘the particular
form of the instrument is immaterial.’ ” (Estate of Williams (2007)

12
155 Cal.App.4th 197, 212; accord, Estate of French (1964) 225 Cal.App.2d 9,
15.)
In short, “ ‘the true test of the character of an instrument is not the
testator’s realization that it is a will, but his intention to create a revocable
disposition of his property to accrue and take effect only upon his death and
passing no present interest.’ ” (Button, supra, 209 Cal. at p. 331.)
III.
Analysis
We conclude for multiple reasons that, as Quintana argues, the probate
court erred in ruling that the 2006 Renunciation does not constitute Wagner’s
will. Therefore, we reverse.
First, the 2006 Renunciation’s terms plainly show a testamentary
intent, a matter ignored by the probate court even though, again, “evidence of
present testamentary intent provided by the instrument at issue is
paramount.” (Estate of Southworth, supra, 51 Cal.App.4th at pp. 571-572.)
The parties do not dispute that Wagner typed and signed the 2006
Renunciation. On its face, it contains express statements indicating his
unqualified intent that, should he pass away before or after his mother’s
estate was settled, all of his property would go to his “wife,” Quintana.
Specifically, the body of the 2006 Renunciation begins, “If anything should
happen to me while or after this estate is settled. All my personal property
and everything that is mine and in my possession, including all property
financial and otherwise would transfer to my wife Diana Marie Quintana.” It
further states that, as a result of Wagner’s renunciation, his parents’ assets
and property “shall not be a burden to myself or my spouse/partner Diana
Marie Quintana. I control only my property which will transfer without
question to Diana in the event of my death.” (Italics added.) This language,

13
and particularly the phrase we have italicized, indicates that when Wagner
wrote it, he intended that, should he die “while or after” his mother’s estate
was settled, all of his property would go “without question” to Quintana.
To the extent it may be argued that this language contains any
ambiguity, the circumstances surrounding Wagner’s writing and execution of
the 2006 Renunciation confirm his testamentary intent. There is no evidence
that Wagner feared his imminent death, but there was clear and convincing
evidence that he feared future efforts before and after his death, by his
relatives or mother’s creditors, to use his property to settle his mother’s
debt—and that one of his purposes in preparing the 2006 Renunciation was
to make clear that his property, rather than being any part of his family’s
assets, was separately owned by him and, after his death, would be inherited
by Quintana. Quintana testified that Wagner wrote the 2006 Renunciation
shortly after his mother died because he was concerned that, should he act as
the personal representative of her estate, her creditors would pursue him
personally regarding their claims against his mother. His concern, reflected
in the language of the document itself, supports the conclusion that Wagner
intended in 2006 that Quintana would inherit his property. It is apparent
from these surrounding circumstances that his 2006 Renunciation was a
statement to the world, and particularly to his relatives and his mother’s
creditors, that Wagner intended that, upon his death, whether before or after
his mother’s estate was settled, all of his own property would “transfer
without question” to Quintana. These circumstances, together with the
language we have highlighted, are clear and convincing evidence that
Wagner intended the 2006 Renunciation to be an expression of his
testamentary intent.

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 Other circumstances provide further support for this conclusion.
Wagner and Quintana enjoyed a close and loving relationship for almost
30 years. Wagner repeatedly and consistently told friends that Quintana
would receive all his property upon his death. He referred to Quintana as his
wife or spouse, including in the 2006 Renunciation itself. Rather than keep
Quintana away from his financial affairs, he authorized her to make
decisions about them with his lender, and he authorized her to discuss
residence matters with their homeowners’ association. He and Quintana
shared all expenses and raised her daughter together. He filed away the
2006 Renunciation in a box in the home they shared that Quintana could
access.
The fact that Wagner did not label the 2006 Renunciation as a will or
prepare it using the usual formalities for such a document (such as having
his execution of it witnessed) is of no consequence, since “ ‘the particular form
of the instrument is immaterial.’ ” (Estate of Williams, supra,
155 Cal.App.4th at p. 212.) Indeed, it is immaterial if Wagner did not realize
the 2006 Renunciation constituted his will, as long as it evidences “ ‘his
intention to create a revocable disposition of his property to accrue and take
effect only upon his death and passing no present interest.’ ” (Button, supra,
209 Cal. at p. 331.) It plainly does.
Furthermore, that the 2006 Renunciation indicates multiple
objectives—to renounce Wagner’s right to be the personal representative of
his mother’s estate, to declare that his property did not belong to his family,
and to provide that upon his death his property would be inherited by
Quintana—does not call for a different result. In Button, our Supreme Court
considered whether a single paragraph of another unlikely will—a four-page
suicide letter that largely discussed other matters—was testamentary in

15
character. The decedent wrote the letter to her former husband on the day of
her suicide, which was a few months after their divorce, and the letter was
found in the same room as her body. (Button, supra, 209 Cal. at pp. 326-327.)
In it, the decedent expressed deep regrets about her role in her family and
implored her former husband to care for their two sons. (Id. at p. 327.)
Toward the end of the second page, after she requested that she be cremated,
she wrote, “ ‘You can have the house on 26th ave. and all the things of value
so you won’t be out any money on burying me.’ ” (Ibid.) It was argued that
the letter was not testamentary in character because only a small number of
its 700-plus words were claimed to constitute a will, the decedent did not
mention the word “will” and she did not indicate an intention of disinheriting
her two sons. (Id. at p. 330.)
Our Supreme Court rejected these arguments and concluded the letter
constituted a will: “That [the decedent] did not refer to her property nor
indicate any intention to dispose of it in a manner which would result in
disinheriting her two boys except in the . . . paragraph above quoted presents
no good or legal reason why this paragraph of her letter should not be given
effect and construed according to its clear intent. If in one part of her letter
she has expressed an intent to make a testamentary disposition of her
property, it is a matter of little or no consequence that she did not in other
portions of her letter refer to such intent. This is especially true when there
is nothing in her whole letter which in the slightest degree conflicts with or
casts doubt upon her intention as expressed in the above-mentioned
paragraph.” (Button, supra, 209 Cal. at p. 331.) Furthermore, “[t]he fact that
the words, which the proponent claims to be a testamentary disposition of her
property, were contained in a letter and were not set forth in a formally
prepared will does not detract from their testamentary character. The books

16
are full of cases holding that letters under proper circumstances may be
testamentary in character and accordingly they have been proved and
judicially determined to be testamentary dispositions of the property of the
testator.” (Id. at p. 332.)3
The circumstances in the present case are also similar to those
discussed in Estate of Stephenson (1965) 235 Cal.App.2d 326. There, the
decedent had been a soldier in World War II. During the war, he wrote in the
flyleaf of a prayer book that he was in combat and believed he could be killed.
(Id. at p. 327.) He continued, “If necessary please return my Good Book and
all possessions to my Aunt . . . .” (Ibid.) He survived the war, continued to
live with his “aunt,” who, although not a blood relative, was “the person
closest to him in life,” and he died in 1961. (Id. at pp. 327-328, 330.) The
trial court ruled that the decedent’s flyleaf note was a conditional will
regarding the prayer book and the possessions he had with him while
overseas fighting the war, and that he otherwise died intestate. (Id. at
pp. 327-328.) The appellate court held that “the wording in the present will
created an absolute, and not a conditional, testament.” (Id. at p. 329.) It
found, among other things, that the extrinsic evidence “supports the view
that decedent intended [his aunt] to be the beneficiary of his entire estate” as
a result of his flyleaf note, including because of his continuous residence with
her until his death, the preservation of the document in his bedroom, the
absence of any other will or codicil, and his entrusting of his stock
certificates, which were his principal assets, with his aunt. (Id. at p. 330.)

3 The decedent also did not sign the letter in any formal way, but,
rather, wrote in the margin of the last page, “ ‘Love from “Muddy,” ’ ” a name
she was called by her family. The court found this to be sufficient to
constitute a signature. (Button, supra, 209 Cal. at p. 328.)
17
 And in Estate of Wolfe (1968) 260 Cal.App.2d 587, Division Four of this
court concluded that a letter written by Ernest Wolfe, a person who was
adjudged to be missing under the Probate Code in 1965, showed
testamentary intent even though the letter was written almost 40 years
before in 1927, just before Wolfe disappeared. (Id. at pp. 590-592.) The
letter, which Wolfe wrote to his brother, discussed a variety of matters,
including Wolfe’s dire economic circumstances, and stated that he was off to
look for work and was leaving certain real property for his brother to have if
he did not return. It also stated, “ ‘[I]f I were you I would keep this letter.’ ”
(Id. at pp. 590-591.) The court, after conducting a careful and thorough
analysis of the language of the letter, rejected the argument that Wolfe
intended only to convey to his brother a current interest in the real property.
(Id. at pp. 593-596.) It concluded that the absence of evidence that Wolfe
anticipated his imminent death when he wrote the letter was not
determinative in light of the language of the letter itself and circumstances
surrounding its execution. The court’s “overriding interpretation of the
letter—reached from its full context” was “that Ernest intended to make a
testamentary disposition, effective upon his death and not as of the letter’s
date.” (Id. at p. 596.)
Finally, the probate court’s reasoning cannot withstand close scrutiny.
It gave two reasons for its conclusion that, while Quintana had arguably
shown by a preponderance of the evidence that the 2006 Renunciation was
Wagner’s will, she had not shown this by clear and convincing evidence. It
concluded that Quintana and Wagner had kept their property separate,
which “seems inconsistent with the idea that after his death, [Wagner]
wanted [Quintana] to inherit his separate property.” The court’s reliance on
the couple’s separate property was misplaced. We do not see any

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inconsistency between a couple’s decision to keep some assets separate and
the same couple’s decision to leave their estates to each other in the event of
death. It is not particularly uncommon for couples, including married
couples, to keep separate property and assets that each owned prior to a
marriage or domestic partnership or that were given to one of them during
the relationship. In any event, the record indicates that Quintana and
Wagner did not keep their assets separate. Quintana testified that they
shared a checking account and each paid half of their joint expenses,
including the expense of educating Quintana’s daughter and the mortgage on
the house. She further testified that the house was purchased in Wagner’s
name for tax purposes. This, along with her testimony and that of the
couple’s friends that the two intended to leave their estates to each other,
provides additional evidence supporting Wagner’s intent.
The court also concluded that Wagner’s decision in July 2012 to
designate his disabled sister, Brennan, as a beneficiary of half of his work
retirement account “unambiguously contradicts all of the testimony that
[Wagner] wanted everything to go to [Quintana] upon his death and creates
substantial doubt as to [Wagner’s] actual intent at the time he signed . . . the
original of [the 2006 Renunciation] . . . .” Again, we disagree. Beneficiary
designations on retirement accounts are distinct from estate planning
documents. (See Estate of Davis (1985) 171 Cal.App.3d 854, 856 [“Upon the
death of the depositor, an individual retirement account does not become an
asset of the decedent’s estate subject to the claim of a judgment creditor, but
passes to the named beneficiary”].) The retirement account would not have
passed through probate or a will along with Wagner’s other property; it would
have passed separately from the retirement system to the beneficiaries
Wagner designated on his retirement account. Wagner decided to designate

19
his sister as co-beneficiary with Quintana on his retirement account almost
six years after he prepared the 2006 Reconciliation, which limits the insight
it provides into his intent in 2006. Further, he consulted Quintana about the
designation at the time he changed it, suggesting he believed Quintana might
otherwise expect it would all become hers. In short, Wagner’s designation of
his sister as a beneficiary of half of his retirement account in 2012 did not
contradict his repeatedly and plainly expressed intent, throughout their
relationship, and specifically in 2006, that he was leaving his entire estate to
Quintana.4
Brennan argues that the 2006 Renunciation is not a validly drafted or
executed will under Probate Code sections 6110 and 6111 because it is not
handwritten (handwritten, or holographic, wills being covered under
section 6111) and Wagner’s execution of it was not witnessed as called for
under section 6110, subdivision (c)(1). However, a signed document does not
have to be handwritten or witnessed under section 6110. Subdivision (c)(2) of
that section specifically allows such a non-witnessed document to be admitted
into probate as a will as long as its proponent establishes the requisite
testamentary intent by clear and convincing evidence.
Brennan also argues that the 2006 Renunciation does not constitute a
will because it is a renunciation prepared under Pennsylvania law. This is
immaterial. As we have discussed, no particular form of a document is
required as long as it evidences the requisite testamentary intent. Thus, a
suicide letter, a letter to a brother written decades before any adjudication in
probate and a note written in the flyleaf of a prayer book were all found to be

4 The court also stated that Quintana “failed to present substantial
evidence that [Wagner] never intended to revoke” the 2006 Renunciation.
Quintana was not required to make this showing under section 6110. Nor did
the court find that the 2012 Agreement or any other document or act effected
such a revocation.
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wills, even if they discussed other matters and evidenced intentions beyond
the disposition of property upon death. That Wagner prepared the
2006 Renunciation in a form other than a will and with multiple objectives in
mind does not change the result given the clarity of the intent he expressed
regarding the disposition of his property after his death.
Brennan further argues that certain circumstances raise questions
about Wagner’s intention that the 2006 Renunciation serve as his will, such
as the fact that he mailed the original to Pennsylvania rather than keeping
it, that he kept a copy of it in a box of papers involving his mother’s estate
and not his own and that he traveled to Pennsylvania to execute a second
renunciation document, purportedly making clear his intent regarding the
first was merely to renounce his right to be the personal representative of his
mother’s estate. These facts are of little consequence. Again, the decedent
need not even realize that a document he or she has prepared is a will; it
merely needs to evidence a testamentary intent. (Button, supra, 209 Cal. at
p. 331.) Furthermore, Wagner did file away a copy of the 2006 Renunciation
in a box in the home he shared with Quintana, thereby making it accessible
to her upon his death.
Next, Brennan characterizes the relevant language of the 2006
Renunciation as merely “some crude language about his property and
[Quintana’s] property not being responsible for debts of his mother.” For
reasons that we have already discussed, we disagree that the language of the
2006 Renunciation was crude or that it was as limited as Brennan argues.
Finally, Brennan relies on Estate of Golder (1948) 31 Cal.2d 848
(Golder) in support of her arguments. On December 13, 1941, Golder, a Navy
member, sent a letter to his mother in California saying that he would be
lucky in that he would see his wife, Alyse, and child, then living in

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Philadelphia, for Christmas. He commented on “ ‘unsettled conditions’ ” and
his desire to persuade them to move to California and told his mother he was
enclosing “ ‘for safekeeping’ ” his bank stock, life insurance and a letter of
credit for a new automobile. (Id. at p. 849.) Golder wrote and dated the
letter in ink, “ ‘Your loving son, Bill,’ ” and wrote underneath his signature in
ink, “ ‘P.S. I have a surprise coming for you and hope it works out. This is all
I can tell you.’ ” (Ibid.) He then added in pencil to this postscript, “ ‘My
insurance is made out to Alyse so should I get in this war and not come back I
want my savings & stocks to go to you. Keep in touch with Alyse.’ ” (Ibid.,
italics omitted.) Since his mother received the letter a few days after its date
of December 13, 1941, it appeared that he wrote this penciled addition and
the body of the letter at about the same time. (Id. at pp. 849-850.) About a
year and a half after he wrote the letter, Golder was killed in action. (Id. at
p. 850.)
The trial court, after considering extrinsic evidence, concluded the
postscript was not a will because it was “ ‘wholly lacking in testamentary
character’ ” and “ ‘was not executed in conformity with the law, by reason of
the fact that it was undated and was not subscribed or signed.’ ” (Golder,
supra, 31 Cal.2d at p. 850.) Our Supreme Court affirmed, concluding that
the language of the postscript rendered Golder’s intent unclear, as it was not
clear if the “surprise” he referred to was related to the sentence that followed
or that his directive to his mother to “ ‘[k]eep in touch with Alyse’ ” indicated
his desire to leave property to his mother “depended upon future action.” (Id.
at p. 851.) The court also found support for the lower court’s decision in the
extrinsic evidence, which included that his wife moved to Nevada shortly
before Golder’s death to establish residence for the purpose of obtaining a
divorce; that sometime after the start of the war, Golder purchased a $9,000

22
policy in which his mother was named as beneficiary; and that the letter
made no provision for Golder’s child or wife at a time when he was on friendly
terms with them. (Id. at pp. 851-852.) The court concluded, “In view of the
informal character of the document, the lack of certainty in the language
used when read with the letter as a whole, and the surrounding
circumstances shown by the extrinsic evidence, we cannot say, as a matter of
law, that the court was in error in concluding that the letter was not
operative as a will.” (Id. at p. 852.)
Golder is easily distinguished from the current circumstances on
several grounds. First, Wagner’s testamentary intent in the 2006
Reconciliation is clear and unqualified by any further directions suggesting
the need for future action, i.e., “my property . . . will transfer without
question to [Quintana] in the event of my death.” Second, the extrinsic
evidence here, which we have already discussed, was dramatically different.
Wagner and Quintana remained close throughout the years, Wagner gave
Quintana access and control over at least some of his financial affairs and he
did not take any steps regarding his estate (which, again, was separate from
his work retirement account) that suggested any intention other than to
leave everything to Quintana. For each of these reasons, Golder also is
unpersuasive.
DISPOSITION
The judgment is reversed. Quintana is awarded costs of appeal.

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 STEWART, J.

We concur.

KLINE, P.J.

MILLER, J.

Estate of Wagner (A154747)

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