Estate of Sherman CA2/4

Filed 2/2/21 Estate of Sherman CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or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 FOUR

Estate of EDWARD MARTIN B300842
SHERMAN, Deceased.
BARBARA GARRISON, (Los Angeles County
Super. Ct. No. 18STPB03628)
Petitioner and Appellant,

v.

RANDI SUE BERGER, as
Executor, etc., et al.,

Objectors and Respondents.

APPEAL from a judgment of the Superior Court of
Los Angeles County, Barbara Johnson, Judge. Affirmed.
Law Offices of John A. Belcher and John A. Belcher
for Petitioner and Appellant.
Steinhart Law Offices and Terran T. Steinhart for
Objector and Respondent Randi Sue Berger.
 Lewitt, Hackman, Shapiro, Marshall & Harlan, Kira
S. Masteller, and Stephen T. Holzer for Objector and
Respondent Fred Berger.

____________________________________

INTRODUCTION
The November 2017 holographic will of decedent
Edward Sherman (the “Contested Will”) left his entire
estate to appellant Barbara Garrison. In August 2019, the
probate court invalidated the Contested Will, finding
Edward lacked testamentary capacity to draft it, and that it
was procured through undue influence. Barbara asks us to
reverse the court’s findings, contending both that the court
used the wrong legal standard in judging Edward’s
testamentary capacity, and that substantial evidence
supports neither the finding of lack of capacity, nor the
finding of undue influence.
Preliminarily, we note that Barbara has forfeited both
substantial evidence challenges by failing to set forth all
the relevant material evidence, in favor of highlighting only
those facts favorable to her position. In any case, because
we find both that the court used the correct standard to
judge Edward’s testamentary capacity, and that substantial
evidence supports the court’s finding that he lacked such
capacity, we need not address whether substantial evidence
supports the court’s finding that the will was procured by
undue influence. We affirm.

2
 STATEMENT OF RELEVANT FACTS

A. Edward’s Wills1
Edward, a lawyer, drafted three holographic wills,
each on a single piece of paper from a legal pad. The first
two, drafted in July 2014 and December 2016, were written
neatly, with few spelling and grammatical errors. They left
either $40,000 (July 2014 will) or $75,000 (December 2016
will) to Barbara, with the remainder of Edward’s estate
going to his sister Marcia.2 Both wills also provided
contingencies for what would occur should either Barbara
or Marcia predecease Edward. The December 2016 will
additionally revoked Edward’s previous will, and named an
executor (Marcia, or Randi Sue Berger (Marcia’s daughter)
should Marcia predecease Edward).
The Contested Will, drafted on November 8, 2017,
read:

“My Last Will and Testiment [sic]

“I Edward M Sherman, hereby giives [sic] to
Barbara Garrison my home at 15743 Hesby
Strreet [sic], Encino, California 91436 and all
my other money and possesions [sic].

1 Because some of the parties share a surname, we refer to
most of the witnesses by their first names.
2 The remainder of the estate included Edward’s house,
valued at over $1,000,000.

3
 “Nov. 8, 2017

“This is my last Will and Testiment this [sic].

“Edward Martin Sherman”

The first line of the Contested Will (“My Last Will and
Testiment” [sic]) was written on the unlined upper portion
of the paper, and the writing sloped upward. Of the
remaining six lines written in the lined portions of the
paper, three also slanted upward and did not remain within
the space designated for writing.

B. Probate Pleadings
Edward died on December 25, 2017. In April 2018,
Barbara filed a probate petition to be named the
administrator of Edward’s estate, attaching the Contested
Will. In May 2018, Marcia objected to Barbara’s petition,
alleging Edward was without capacity to make the
Contested Will, and that Barbara had “made [Edward]
write” it.3 One week later, Marcia petitioned to have
herself named the administrator of Edward’s estate,
contending Edward died intestate.

3 As part of the objection, Marcia included an exhibit
showing a text message from Edward’s caregiver to Randi,
attaching a picture of the Contested Will and stating: “She just
made him write this while I was talking to your mother on the
phone.” However, this exhibit was not introduced at trial, and
Randi’s testimony regarding what the caregiver said to her was
stricken as hearsay. The caregiver was not a witness at trial.

4
 In November 2018, after Marcia passed away,
Marcia’s son Fred petitioned to have himself named the
administrator of Edward’s estate, also contending Edward
died intestate. In January 2019, Randi (Fred’s sister)
petitioned for the December 2016 will to be probated with
her as executor, and objected to Barbara’s petition. In
February 2019, Fred objected to Randi’s petition,
questioning both the validity of the December 2016 will,
and whether Randi would act neutrally as executor.4
Barbara also objected to Randi’s petition.

C. Probate Trial
A four-day bench trial began in June 2019. Seven
witnesses testified. The relevant portions of their
testimony are summarized below.

1. Barbara Garrison
Barbara testified she met Edward in 1988, started
dating him in 2008, moved in with him in April 2012, and
lived at his home until December 2017. In November 2017,
Barbara and Edward went to his bank twice (both times
after November 8). At the first visit, a bank manager
informed Edward that Marcia had moved all of the money
out of his account.5 Edward asked the bank manager to

4 Fred later agreed the December 2016 will was valid,
though he still opposed Randi’s appointment as executor.
5 On cross-examination, Barbara was shown the November
2017 bank statement for that account, and confirmed that the
(Fn. is continued on the next page.)

5
bring him a phone, and he immediately called Marcia to
ask where the money was. Barbara was “listening in” and
overheard Marcia say she had moved the money out of
Edward’s account because she needed it to “take care” of
him, and that she was permitted to do this because he had
given her power of attorney. During the second visit to the
bank, which took place on November 27, Edward was able
to withdraw $3,000 from his account.
After the first November visit to the bank, Edward
told Barbara he was very upset that Marcia was taking all
his money, and that he was going to “‘fire her.’” Barbara
never encouraged Edward to fire Marcia, never disparaged
her, and stayed out of the interactions between the two.
Barbara received a voicemail from Marcia stating Edward
had fired her. A partial transcript of the voicemail reads:

“Hi Barbara[,] it’s Marcy[.] _ fired me last
night[,] he said I’m doing a more harm
than good [sic] and I’m spending all his
money on things he doesn’t want [though] I
haven’t spent a penny _____·so anyhow he
doesn’t want me doing anything else for
him[,] he does not want me involved so um
I’m going to give everybody your number[.

account had a balance of $200,323.61 at the beginning of
November, and $97,416.48 at the end, and the only deposit
during the month was an interest payment (i.e., at no time was
the account empty).

6
 H]e has _ ______ discharge date uh after
Thursday possibly Saturday or Sunday if
the bacterial infection that has been
causing diarrhea clears up [(]they finally
diagnosed when I insisted they do a
culture[)] and I’ll send you all the
information _ ____ all the relevant contacts
for his care and I think you’ll [sic] be more
comfortable with you anyway so uh I’ll get
everything to you as soon as possible and
good luck[,] bye-bye.”

However, Barbara testified this voicemail was left on
October 25, 2017, before the November bank visits. She
also testified it was not unusual for Edward to get upset
and lose his temper, and that she did not take over
Edward’s finances or healthcare decisions after Marcia’s
voicemail. Instead, Marcia continued helping with those
matters.
According to Barbara, at some point, Marcia had
asked her to move out of Edward’s house, but she refused.
On November 8, Barbara and Edward were “talking about
the whole situation and his health.” They were sitting
around, watching television, and Edward said, “‘I have
come to the conclusion that Marcy is not going to work with
you.’” He went on, “‘I won’t be able to protect you any more
or help you, so I am going to do this.’” He picked up a legal
pad and declared he would leave everything to Barbara. He

7
then drafted the Contested Will of his own volition, without
influence from her. While he was writing the will, she was
massaging his legs, because he was in “grievous pain.” It
took him 10 to 15 minutes to draft the will.
After the will was written, Edward read it to her, and
then handed it to her to read herself. She asked whether
he was sure he wanted to do this, and he said he was.
Barbara opined that “Edward Sherman knew what he was
doing.”
The legal pad on which the Contested Will was
written sat on the coffee table for several days, before
Barbara finally tore the page off the pad, and took
possession of it. Edward had told her to “hang on to it”
after he wrote it. Edward had three other wills in his
possession (his December 2016 will, Marcia’s will, and the
will of his friend and client Cheryl Christensen), but the
Contested Will was never stored with the other wills.
Edward never told Barbara to destroy the December 2016
will.

2. Cheryl Christensen
Cheryl first met Edward in 1974, and he was her
“best friend,” as well as her manager and attorney. She
spoke with Edward on November 16, 2017, during his
birthday. They reminisced about the music business, and
he advised her regarding a business deal she was involved
in. Cheryl asked Edward if he had “taken care” of Barbara,

8
in case something happened to him, and he responded,
“Yes, I have protected her.”

3. Dr. Timothy Lee
Dr. Lee was a skilled nursing facility physician at the
Windsor Terrace Medical Center (Windsor Terrace). Dr.
Lee first met Edward on his admission to that facility on
October 6, 2017, at which time Edward “was clear.” On
October 16, Edward was taken to a hospital, but was
readmitted to Windsor Terrace on October 19. On October
20, 2017, Edward could give his name, but did not know
what year it was. He was “a little clearer” during the
afternoon, but “would get confused in the evening.” A
document dated October 20 stated that Edward had
“fluctuating capacity to understand and make decisions”
because of “dementia.” Dr. Lee explained that fluctuating
capacity meant that Edward sometimes had the capacity to
understand and make decisions, and sometimes did not.
Edward was discharged from Windsor Terrace on
October 31, 2017; toward the end of his stay, he “was
confused most of the day.” Dr. Lee opined that during the
time Edward was at Windsor Terrace, he lacked the
cognitive capacity to make medical decisions for himself.
When shown a Windsor Terrace discharge form dated
October 31, 2017, which stated that Edward had “mild
cognitive impairment” (meaning that Edward’s cognitive
abilities were “in a conditional state between normal aging

9
and dementia”), Dr. Lee testified this was an inaccurate
assessment.

4. Beth Chrisman
Beth Chrisman, an expert forensic document
examiner, testified that Edward personally wrote and
signed the Contested Will. She also opined that the writing
did not appear as if someone had dictated the will to him.

5. Randi Sue Berger
Randi testified that Edward was her uncle (her
mother Marcia’s brother). Edward helped Randi with legal
matters, and she saw him a couple of times per month.
Until the last month of his life, Edward called Marcia
several times a day. He often left angry messages for
Marcia and for Randi, but then would call back the next
day, changing what he said.
Randi also testified that, after Barbara moved in with
Edward, she was no longer permitted to visit with him in
his house, but was required to meet with him outside.
After Edward became ill, Randi was allowed into the house
again, and saw the house was filthy -- it had worsened
substantially after Barbara moved in. Randi later testified
that even when he was ill, she and her mother were
sometimes “locked out” of the house.

6. Dr. Robert Kahn-Rose
Dr. Kahn-Rose, an expert witness in the field of
geriatric psychiatry, examined Edward on November 30,

10
2017. As part of the exam, he administered a Montreal
Cognitive Assessment. Edward scored 11 out of a possible
30 points, indicating severe dementia.
Dr. Kahn-Rose testified that Edward had severe
dementia, and was impaired across all cognitive realms
except for attention, “which wasn’t too bad.” He had
deficits in “short and long-term memory, language, all
aspects of higher cognitive functioning, insight, judgment,
ability to change sets or inhibit responses, to plan, to
organize . . . .” These were areas “critical to being able to
make judgments, to make assessments of information, to
try to discern really what was going on at any particular
time . . . .” Dr. Kahn-Rose testified that it was “very
unlikely” Edward’s cognitive state had occurred overnight;
in Dr. Kahn-Rose’s opinion, Edward had lacked cognitive
abilities throughout November 2017.6 He also opined it was
extremely likely that Edward was highly susceptible to
undue influence for the entire month of November.
Dr. Kahn-Rose additionally testified that the
misspellings in the Contested Will, along with the way the
writing did not stay within the lines, raised concerns about
the writer’s cognitive abilities. He had no concerns

6 Dr. Kahn-Rose understood that to have testamentary
capacity, individuals must be aware of the testamentary act,
understand the objects of their bounty (specifically the
relationship between the heirs and the testator), and
understand their assets in significant detail. Dr. Kahn-Rose did
not ask Edward about his bank accounts, any art, cars, or
jewelry.

11
regarding the July 2014 and December 2016 wills, noting
they were more thorough, in-depth, and legible, compared
to the Contested Will.

7. Fred Berger
Fred testified that Edward was his uncle, and a good
friend. Edward was also close to Marcia, Randi, and Fred
and Randi’s sister. Because Fred was the executor of
Marcia’s estate, he reviewed bank documents in her
possession; these documents showed that Marcia paid for
Edward’s living and healthcare expenses.

D. The Court Invalidates the Contested Will
On August 21, 2019, the court issued a ruling. We
summarize the relevant portions below.

1. Testamentary Capacity
The court found that Edward wrote, dated, and signed
the Contested Will, and that “[o]n its face the instrument
discloses a testamentary intent.” The court recognized that
testamentary capacity is presumed, and that it was the
contestant’s burden to prove lack of testamentary capacity
or undue influence. Nevertheless, the court found that
Edward “did not have capacity to make” the Contested Will.
The court noted Dr. Lee’s testimony that toward the end of
his stay at Windsor Terrace, Edward “did not have decision
making capabilities as it related to medical decisions for
himself” because he was “confused most of the day.” It also
cited Dr. Kahn-Rose’s testimony that he had no concerns

12
regarding Edward’s July 2014 or December 2016 wills
because they were detailed, thorough, and legible, but the
Contested Will “presents another picture.”
The court referenced the 11 out of 30 score that
Edward received on the Montreal Cognitive Assessment,
and that “Dr. Kahn[-]Rose interpreted this score to mean
[Edward] Sherman suffered from severe dementia, [and]
that he had impairment across most all cognitive realms.
[Specifically, Edward] Sherman had deficits in short and
long-term memory, language, [and] all aspects of higher
cognitive functioning—insight, judgment, ability to change
sets or inhibit responses, [and] to plan and organize. Those
areas are critical to being able to make judgments, to make
assessments of information, to discern what is going on at
any particular time. In short, [Edward] Sherman’s
decision[-]making was ‘profoundly impaired’. This
condition did not occur overnight . . . . [Dr.] Kahn-Rose
opined that [Edward] Sherman lacked cognitive abilities
throughout the month of November . . . .” The court agreed
with Dr. Kahn-Rose’s testimony that Edward “did not have
the capacity[] to write a Will in November 2017 and
understand what he was writing . . . .”7

7 The court also noted that “Dr. Kahn-Rose understood the
standard for testamentary capacity as three-fold: ‘It is an
individual’s awareness of what the act was that they were
executing at that time, it is an understanding of the natural
objects of their bounty . . . . [S]pecifically, the relationship to
those individuals and a complete set of the potential natural
(Fn. is continued on the next page.)

13
 2. Undue Influence
The court went on to find that “[e]ven assuming that
the decedent was competent at the time of the signing of
the [Contested] Will, the execution of a will is ineffective
because the execution was procured by duress, or undue
influence.” The court noted that a “presumption of undue
influence arises when there is a ‘“concurrence of all the
following elements (1) the existence of a confidential or
fiduciary relationship between the testator and the person
alleged to have exerted undue influence; (2) active
participation by the latter person in the actual preparation
or execution of the will; and (3) an undue benefit to such
person or another person under the will thus procured.”’”
The court found: (1) it was undisputed that Barbara and
Edward were in a confidential relationship; (2) Barbara
“actively participated in the preparation and execution of
the [Contested] Will”; and (3) Barbara “unduly benefited
under the [Contested] Will . . . .”
The court therefore granted Randi’s petition for
probate of the December 2016 Will, appointed Randi as
executor, and denied Fred’s and Barbara’s petitions.
Barbara appealed the same day.

objects. And it is an understanding of the actual bounty, the
nature of the bounty. In some significant detail. [sic]’”

14
 DISCUSSION

A. Barbara Has Forfeited Her Substantial
Evidence Challenges
“‘It is well established that a reviewing court starts
with the presumption that the record contains evidence to
sustain every finding of fact.’” (Foreman & Clark Corp. v.
Fallon (1971) 3 Cal.3d 875, 881.) When a party challenges
a finding on appeal, it must “‘demonstrate that there is no
substantial evidence to support the challenged findings.’”
(Ibid.) A recitation of only favorable evidence is not the
“‘demonstration’” contemplated under the above rule.
(Ibid.) If a party fails to set forth “‘all the material evidence
on the [appealed] point and not merely [its] own evidence
. . . the error is deemed to be waived.’” (Ibid., some italics
omitted.)
Here, Barbara fails to set out much of the evidence
that was unfavorable to her. For example, while Barbara
cites an October 31 document from Windsor Terrace stating
that Edward had only a “mild cognitive impairment,” she
fails to mention that Dr. Lee testified he believed this
assessment was inaccurate, and that in his opinion,
Edward was “confused most of the day” toward the end of
his stay, and lacked capacity to make medical decisions for
himself. Similarly, while Barbara points to Dr. Kahn-
Rose’s testimony that Edward knew his address and his
family, educational, and professional history, and had some
awareness of his own impaired medical condition, she fails

15
to note Dr. Kahn-Rose’s testimony that Edward scored only
11 out of 30 on the Montreal Cognitive Assessment,
indicating severe dementia.
Barbara claims that within a week of October 17,
2017 (when Edward gave Marcia his power of attorney),
Marcia had transferred “most of Edward’s funds” into a
bank account that she exclusively controlled. But Barbara
does not note her own testimony that there was over
$200,000 in the account at the beginning of November, and
almost $100,000 at the end of November. Barbara asserts
that Edward’s firing of Marcia -- which occurred the night
before Marcia’s October 25, 2017 voicemail -- was in
reaction to Edward’s discovery that Marcia had moved
Edward’s money out of his account, but says nothing of her
own testimony that Edward did not make this supposed
discovery until after November 8, 2017.
Given Barbara’s omission of these and other pieces of
evidence that support the court’s findings, we deem her
substantial evidence arguments forfeited. (Foreman &
Clark Corp. v. Fallon, supra, 3 Cal.3d at 881.) In any case,
as discussed below, substantial evidence supports the
court’s finding that Edward lacked testamentary capacity.

B. The Court Did Not Err in Finding Edward
Lacked Testamentary Capacity
Acknowledging that testamentary capacity is
presumed, that the standard for finding testamentary
capacity is “exceptionally low,” and that it was Fred’s and

16
Randi’s burden to prove lack of testamentary capacity, the
court nevertheless found Edward “did not have capacity to
make the” Contested Will.
Barbara contends the court erred legally by using the
wrong standard to consider testamentary capacity, and
erred factually because substantial evidence does not
support the finding that Edward lacked it. We disagree.

1. The Court Applied the Correct
Standard
When setting forth the general principles relating to
testamentary capacity, the court specifically stated that
“[t]he standard for testamentary capacity is exceptionally
low,” “[c]apacity to make a will is presumed,” and that
“Probate Code section 6100.5 requires that the person
understand the nature of the testamentary act, the nature
of the property at issue, and his or her relationship to those
affected by the provisions of the will.” This is the same
standard that Barbara proffers.
The probate court also noted that Dr. Kahn-Rose gave
his understanding of “the standard for testamentary
capacity as three-fold: ‘It is an individual’s awareness of
what the act was that they were executing at that time, it is
an understanding of the natural objects of their bounty . . . .
[S]pecifically, the relationship to those individuals and a
complete set of the potential natural objects. And it is an
understanding of the actual bounty, the nature of the
bounty. In some significant detail. [sic]’” Barbara

17
contends the court erred by judging Edward’s testamentary
capacity using this “more stringent” standard, arguing that
the testator needed only “[a] mere ‘understanding’ of the
nature of the property devised” and an understanding of his
“relationship with those whose interests are affected by the
will.”
Setting aside whether Dr. Kahn-Rose articulated a
more stringent standard, he testified as an expert in
geriatric psychiatry, not law. Furthermore, the court did
not find that Edward lacked testamentary capacity because
he lacked sufficient understanding of his assets or relatives.
Rather, the court focused on whether Edward understood
the testamentary act, discussing his confusion and
cognitive capacity.8 We see no evidence the court used an
incorrect standard.

2. Substantial Evidence Supports the
Court’s Finding
As evidence of Edward’s lack of testamentary
capacity, the court cited Dr. Lee’s testimony that, toward
the end of his stay at Windsor Terrace, Edward was
“confused most of the day” and lacked decision-making
capabilities as it related to medical decisions. The court

8 While Barbara contends the “trial court never found that
Edward did not understand the nature of the testamentary act,”
the court’s ruling specifically stated that Dr. Kahn-Rose opined
Edward “did not have the capacity[] to write a Will in November
2017 and understand what he was writing,” and that the court
agreed with Dr. Kahn-Rose’s testimony.

18
also noted Dr. Kahn-Rose’s testimony that on November 30,
2017, Edward had scored 11 out of 30 on the Montreal
Cognitive Assessment, indicating severe dementia, and
impairment “across most all cognitive realms . . .
[including] short and long-term memory, language, [and] all
aspects of higher cognitive functioning—insight, judgment,
ability to change sets or inhibit responses, [and] to plan and
organize.” These were areas that were “critical to being
able to make judgments” and thus Edward’s “decision[-
]making was ‘profoundly impaired.’” The court agreed with
Dr. Kahn-Rose that this condition did not occur overnight,
that Edward “lacked cognitive abilities throughout the
month of November 2017,” and that he therefore lacked
testamentary capacity to draft the Contested Will on
November 8.
On appeal, Barbara makes three arguments: (a)
substantial evidence supports a finding of testamentary
capacity; (b) Dr. Lee’s testimony contradicts itself; and (c)
Dr. Kahn-Rose’s testimony is insufficient. We are
unpersuaded.

(a) The Evidence Supporting
Capacity Is Not Dispositive
Barbara points to several pieces of evidence she
contends would support a finding of testamentary capacity,
such as Cheryl’s testimony regarding the conversations she
had with Edward on November 16. She misunderstands
the standard of review. “We review the trial court’s

19
factfinding for substantial evidence. This traditional
standard of review is highly deferential. It has three
pillars. First, we accept all evidence supporting the trial
court’s order. Second, we completely disregard contrary
evidence. Third, we draw all reasonable inferences to
affirm the trial court. These three pillars support the
lintel: we do not reweigh the evidence.” (Schmidt v.
Superior Court (2020) 44 Cal.App.5th 570, 581.) “Our job is
only to see if substantial evidence exists to support the
verdict in favor of the prevailing party, not to determine
whether substantial evidence might support the losing
party’s version of events.” (Id. at 582.) As discussed above,
substantial evidence supports the court’s finding that
Edward lacked testamentary capacity. Whether other
evidence, if credited, would have supported a contrary
finding is beside the point.

(b) Dr. Lee’s Testimony Was Not
Contradictory
Barbara argues that Dr. Lee’s testimony regarding
Edward’s confusion is inconsistent with his testimony that,
on October 20, he had “fluctuating” capacity to understand
and make decisions. We see no contradiction. Dr. Lee
testified that toward the end of Edward’s stay at Windsor
Terrace (which ended on October 31), he “was confused
most of the day” and lacked the cognitive capacity to make
medical decisions for himself. That Edward had fluctuating
capacity on October 20 does not mean his capacity was still

20
fluctuating on October 31. Moreover, “the credibility of a
witness and the weight to be accorded to his testimony are
questions directed to the trial judge, who under proper
circumstances may accept all or such part of the testimony
of any witness as [he/she] believes to be true, or may reject
all or any part which [he/she] believes to be untrue.”
(Bechtold v. Bishop & Co., Inc. (1940) 16 Cal.2d 285, 291.)
Thus, the court was free to believe Dr. Lee’s testimony that
Edward was confused most of the day toward the end of his
stay, and disregard any testimony to the contrary.

(c) Dr. Kahn-Rose’s Testimony Is
Sufficient
Barbara argues Dr. Kahn-Rose failed to recognize or
consider the “fluctuating capacity” that Edward had on
October 20. But a document indicating Edward’s
fluctuating capacity on October 20 does not contradict
Dr. Kahn-Rose’s opinion that Edward lacked capacity to
draft a will throughout the month of November, especially
in light of Dr. Lee’s testimony that toward the end of
October, Edward was confused most of the day.
“Testamentary incompetency on a given day . . . may be
proved by evidence of incompetency at times prior to and
after the day in question.” (Estate of Fosselman (1957) 48
Cal.2d 179, 185.) “Once it is shown that testamentary
incompetency exists and that it is caused by a mental
disorder of a general and continuous nature, the inference
is reasonable [citations], perhaps there is even a legal

21
presumption [citations] that the incompetency continues to
exist. Such an inference is particularly strong in a case
such as this in which the decedent was suffering from
senile dementia, a mental disorder that becomes
progressively worse.” (Id. at 186.)
Barbara also points out that Dr. Kahn-Rose testified
that when Edward drafted the Contested Will, “‘it is
possible, given his training and expertise, historically, that
he did know what a will is.’” But whether, on November 8,
Edward understood the definition of a will in the abstract is
a different question than whether he knew that by writing
the words he did, he was creating a will that would leave
everything to Barbara. Given Dr. Kahn-Rose’s opinion that
Edward was without capacity to draft a will in November,
we think his later testimony is more reasonably interpreted
to mean that Dr. Kahn-Rose could not rule out the
possibility that, given Edward’s years of experience as an
attorney, he may generally have understood the concept of
a will, not that he understood he was drafting one. In any
event, even had Dr. Kahn-Rose opined that Edward
understood on November 8 that he was drafting a will, as
stated above, the court was free to disbelieve that portion of
Dr. Kahn-Rose’s testimony, especially in light of his other
testimony, supported by diagnostic testing, that Edward

22
had severe dementia and lacked cognitive capacity
throughout November.9

3. Barbara’s Cases Are Distinguishable
Barbara relies on three vintage cases: Estate of
Bullock (1956) 140 Cal.App.2d 944 (Bullock), Estate of
Glass (1958) 165 Cal.App.2d 380 (Glass), and Estate of
Darilek (1957) 151 Cal.App.2d 322 (Darilek). All are
materially distinguishable.
In Bullock, the Court of Appeal reversed a jury’s
finding that the testator lacked capacity, determining the
finding lacked substantial evidence. (Bullock, supra, 140
Cal.App.2d at 944, 948.) While the testator’s physician had
opined she was incompetent to make a will, it was
undisputed that the doctor had not seen the testator for
over four months before she drafted the will. (Id. at 947-
948.) Additionally, the head of the nursing home, while
characterizing the testator as “repetitious and childish,”
acknowledged that she recognized and conversed with
people and understood what she was told. (Ibid.) Here, in
contrast, there was substantial evidence of serious cognitive
impairment: testimony from Drs. Lee and Kahn-Rose, as

9 Barbara also contends the probate court found the
Contested Will was signed with testamentary intent. We
interpret the court’s statement that “[o]n its face the instrument
discloses a testamentary intent,” as a simple acknowledgment
that the words of the Contested Will indicated a disposition of
Edward’s assets, not a finding that Edward understood and
intended this disposition.

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well as Edward’s low score on the Montreal Cognitive
Assessment, indicating severe dementia. Moreover, unlike
in Bullock, the assessments of Edward’s cognitive function
by Drs. Lee and Kahn-Rose occurred, respectively, less than
two weeks before and three weeks after the will was
written.
In Glass, the issue was whether the evidence was
sufficient to support the trial court’s finding of
testamentary capacity, not whether the evidence was
sufficient to support a finding of incapacity. (Glass, supra,
165 Cal.App.2d at 383.) As explained above, the two
inquiries are distinct, and only the latter is before us.
Moreover, the Glass court observed that “‘there was no
evidence of any deterioration of [the testator’s] physical or
mental faculties during the last three or four years prior to
his death.’” (Id. at 383, 384.) Here, there was ample
evidence of Edward’s cognitive decline.
Finally, in Darilek, the probate court granted a
motion for nonsuit after the appellant contended the
testator lacked capacity. (Darilek, supra, 151 Cal.App.2d at
323.) On appeal, the Court of Appeal affirmed this ruling,
finding the “probate court was right in holding that there
was no substantial evidence to support a jury’s finding of
mental incapacity had one been made.” (Id. at 328.) The
court noted the will was signed in front of the testator’s
attorney and two disinterested witnesses, and the testator
noted her understanding and agreement with the will. (Id.
at 324.) It further stated the probate court “properly”

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disregarded expert opinion regarding lack of capacity as
“too speculative” based only on the expert’s reading of
hospital records and examination of the testator’s
handwriting. (Id. at 326.)10 Here, by contrast, the only
person present when the Contested Will was drafted and
signed was hardly disinterested. Additionally, two medical
professionals who had personally examined Edward
testified to his cognitive defects, and one opined Edward
lacked the capacity to draft the Contested Will.

C. Undue Influence
The probate court ruled that even assuming Edward
possessed the capacity to draft the Contested Will, it was
ineffective “because the execution was procured by duress,
or undue influence.” Barbara argues that substantial
evidence does not support the court’s ruling. Because we
find Barbara has forfeited her substantial evidence
arguments, and that in any event, the court did not err in
finding Edward lacked testamentary capacity, we need not
resolve whether the court erred in finding the Contested
Will was ineffective for the additional reason that it was
procured through undue influence.

10 Barbara’s characterization of Darilek as a case where the
“Court of Appeal reversed the trial court and found
testamentary capacity” is incorrect. As the probate court never
found the testator lacked testamentary capacity, the Court of
Appeal had no occasion to reverse such a finding.

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 DISPOSITION
The judgment is affirmed. Respondents are awarded
their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS

MANELLA, P. J.

We concur:

COLLINS, J.

CURREY, J.

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