I dissent. The majority opinion holds that no document can qualify as a claim in probate — even as a defective claim whose defects can be cured by later amendment — unless it takes the form of a demand upon the probate estate and has a certain independent existence as a proceeding before the probate court. The controlling case law is to the contrary.
The leading case is United States Gypsum Co. v. Shaffer (1936) 7 Cal.2d 454 [60 P.2d 998]. Plaintiff obtained a judgment against Hart, who appealed and filed a bond to stay execution of judgment. Hart died pending the appeal, but defendants, his executors, failed to notify plaintiff of the death or to substitute the estate as a party defendant. Subsequent to Hart’s death, plaintiff served on defense counsel a notice of motion to furnish a new undertaking on appeal. After the period for filing creditors’ claims had run, plaintiff, having learned of Hart’s death, sought leave of court to file an amended claim. Ruling that the notice of motion Was not filed as a probate claim, the superior court denied that request.
This court unanimously reversed the lower court ruling. In language which is fully applicable to the present case, we stated that; “The opportunity afforded for amendment presupposes that there might be defects and informalities in the original presentation of a claim which requires correction or additions before it complies with the statutory requirements. A particular purpose of the requirement to file claims and of the limitation of time thereon is to inform the personal representatives and the court of the valid claims against the estate to the end. that the estate be administered expeditiously. ... The code does not state what precise form such a. claim shall take, and any notice presented to the executor or administrator which informs him of the outstanding claim is sufficient at *371least upon which to base an order permitting an amendment to supply the missing formalities or any deficiencies.” (7 Cal.2d at p. 458.) (Italics added.)1
In Bernstein v. Rubin (1957) 152 Cal.App.2d 51 [312 P.2d 755], defendant died pending trial of plaintiff’s suit. Plaintiff filed a request for special notice with the probate estate, and stipulated with the administrator for the latter’s substitution as party defendant in the pending lawsuit. The trial court treated the request for special notice and the stipulation as defective probate claims, and permitted plaintiff to file an amended probate claim after the expiration of the filing period. The Court of Appeal affirmed, relying on United States Gypsum Co. v. Shaffer, supra, 7 Cal.2d 454.
In the most recent decision, Estate of Vose (1970) 4 Cal.App.3d 454 [84 Cal.Rptr. 347], the creditor presented an unverified bill to the executor within the filing period. One month after expiration of that period, it filed a verified amended claim. Relying upon United States Gypsum Co. v. Shaffer, supra, 7 Cal.2d 454, and Bernstein v. Rubin, supra, 152 Cal.App.2d 51, the Court of Appeal upheld the probate court’s jurisdiction to allow the amended claim. We denied a petition for hearing.2
The overruling of these decisions will necessarily increase those instances in which a just creditor’s claim goes unpaid, with the decedent’s heirs reaping the unexpected windfall. I perceive no countervailing bene*372fit.; United States Gypsum Co. v. Shaffer, supra, 7 Cal.2d 454, the leading precedent, was decided in 1936. Although the efficient administration of probate estates has been a matter of continuing concern and discussion among the bar and the judiciary, I have heard no voice calling for the overruling of that decision. The Legislature has frequently amended the statutory provisions on the filing of creditor’s claims, but has neither annulled nor restricted the reach of that precedent; most of its amendments have served to liberalize filing requirements and to reduce the number of instances in which a just claim is lost through lack of strict compliance.3 In sum, there is no reason to believe that the rule established in United States Gypsum Co. v. Shaffer, supra, in 1936, .and followed by subsequent Court of Appeal decisions, is a significant impediment to efficient probate administration. Thus the majority decision will compel an unjust result in the present case and future cases, without any offsetting public benefit.
The holding of the majority is not founded upon legislative enactment, judicial decision, or reasons of policy. It rests, instead, upon a rather metaphysical notion that the irreducible essence of a probate claim is a document bearing words of present demand and filed in the probate proceeding. The majority apparently believe that this exercise in the lexicographic philosophy will permit them to order the law respecting filing and amendment of probate claims into neat and logical categories. Instead, it will lead them into the absurdity of declaring that although most defects of form in a probate claim can be cured by amendment, certain of the most trivial defects, such as the use of words of future instead of present demand, are utterly incurable.
To terminate payments necessary to the support of decedent’s child because the attorney employed the wrong form, and used words of future demand, inflicts a personal tragedy; to accomplish this unjust end by the overturning of precedents which would permit the attorney to mend his error enacts a legal tragedy.4 In our concern for efficient judicial *373administration we must not forget that attorneys are fallible, and that behind every erring attorney is a suffering client.
Mosk, J., concurred.The majority opinion’s repeated assertion that “mere notice” is insufficient basis for an amended claim attacks a straw man; the rule established in United States Gypsum Co. v. Shaffer, supra, requires notice “presented to the executor or administrator which informs him of the outstanding claim. . . .” (7 Cal.2d at p. 458.)
The majority opinion asserts that decisions dealing with amendments of creditor’s claims have not yielded a completely consistent pattern. (Ante, p. 367.) The inconsistent decision is Bank of America v. Gesler (1967) 252 Cal.App.2d 565 [60 Cal. Rptr. 657], which held that a demand for special notice, to which the creditor had attached a promissory note executed by the decedent, could not be amended to add a verification to transform it into a valid creditor’s claim. When a Court of Appeal decision is inconsistent with a prior decision of this court, one possible explanation is that the Court of Appeal overlooked the controlling precedent and decided the case incorrectly. A review of the opinion in Gesler confirms this explanation; that opinion does not cite, much less distinguish, the prior decisions in United States Gypsum Co. v. Shaffer, supra, 7 Cal.2d 454 and Bernstein v. Rubin, supra, 152 Cal-App.2d 51.
Indeed, since the promissory note in Gesler contained words of demand, the Court of Appeal decision in that case is incorrect even under the restrictive test set forth in the majority opinion, and that opinion therefore overrules Gesler. {Ante, pp. 369-370.) Thus none of the cases involving amendment of creditor’s claims supports the position advanced in the majority opinion.
See Statutes 1965, chapter 1593, page 3685, section 2; Statutes 1969, chapter 959, page 1907, section 2; Statutes 1971, chapter 1226, page 2374, section 3; Statutes 1971, chapter 1638, page 3533, section 4.
The majority opinion stresses that petitioner’s attorney was familiar with the official forms for probate claims, and did not, in filing a petition for family allowance, intend that document as a probate claim. These facts may bear on the culpability of petitioner’s counsel,, but they are irrelevant to the issue at hand: whether that petition for family allowance can serve as a basis for an amended, claim. Under United States Gypsum Co. v. Shaffer, supra, 7 Cal.2d 454, a document may serve *373as the basis for an amended claim if it is presented to the executor or administrator, and informs him of the outstanding claim; the petition for family allowance in the case at bar meets these requisites.