I post 2 interesting cases :
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2004 Cal. App. Unpub. LEXIS 41,*
Estate of Silveria Chell, Deceased. Robert S. Chell, Petitioner and Appellant, v. Johnny Singh, as Executor, etc., Objector and Respondent.
D041122
COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION ONE
2004 Cal. App. Unpub. LEXIS 41
January 6, 2004, Filed
NOTICE:
[*1] NOT TO BE PUBLISHED IN OFFICIAL REPORTS CALIFORNIA RULES OF COURT, RULE 977(a), PROHIBITS COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 977(B). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 977.
PRIOR HISTORY:
APPEAL from an order of the Superior Court of Imperial County. Super. Ct. No. P-0223. Jeffrey B. Jones, Judge.
DISPOSITION:
Affirmed.
JUDGES: AARON, J. WE CONCUR: HUFFMAN, Acting P. J., McDONALD, J.
OPINION BY: AARON
OPINION
Robert Chell appeals from a probate court order denying his petition for removal of Johnny Singh as executor of their mother Silveria Chell's estate. Robert contends that Johnny has a conflict of interest that requires his removal as executor pursuant to Probate Code n1 section 8502. We conclude that the probate court acted within its broad discretion in denying Robert's petition for removal of the executor.
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Unless otherwise specified, all statutory references are to the Probate Code.
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[*2] I
FACTUAL AND PROCEDURAL BACKGROUND
Silveria Chell (Silveria) died testate at the age of 91 on December 30, 2000. She was survived by seven children, Robert Chell (Robert), Johnny Singh (Johnny), Nellie Guerrero (Nellie), Raymond Singh (Ray), Mary Ann Baker (Mary Ann), Beatrice Rodriguez (Bea), and Rose McKenzie (Rose).
Silveria's will, executed on September 18, 1997, stated: "Because my son ROBERT CHELL, has been previously provided for by me and my deceased husband, Nand Singh Chell, and not because I have any less devotion to him, I make no provision for him under this Will." The only property left to Robert in the will was a "carved walnut chair from Mexico." The rest of Silveria's estate was left to her other six children, in equal shares.
The will gave Silveria's "surviving children" the "first right" to purchase her farm and residence in Imperial County. It further provided:
"If a child of mine purchases my residence, the purchase price shall include all of the furniture and furnishings therein, except:
"(a) Those items specifically given by me in subparagraph A above;
"(b) Those items that belong to my daughter, NELLIE GUERRERO."
The will appointed Johnny Singh [*3] as executor of the estate and named Ray as successor executor in the event that Johnny either failed to qualify or ceased to act as executor.
On January 8, 2001, Johnny filed a petition for probate of the will. The petition referred to the existence of a codicil to the will. However, counsel for Johnny subsequently filed a declaration stating "that said codicil was not properly executed in accordance with California law and, therefore, was not offered for probate." n2 The codicil, which was attached to counsel's declaration, would have given Bea and Nellie the "first right" to purchase the decedent's residence, along with the furniture and furnishings.
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The codicil, which was dated November 2, 2000, was signed by only one witness.
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The will was admitted to probate and Johnny was appointed executor of the estate. Johnny solicited bids for the sale of the decedent's residence and subsequently filed a petition for an order confirming that the residence could be sold to Bea and Nellie. Mary Ann, Rose, and Robert [*4] filed objections to the proposed sale. In subsequent proceedings, Rose filed a declaration stating that she had "doubts in my mind as to whether or not the terms of the will have been followed as my mother intended." She explained that Johnny first presented the codicil, which would have resulted in the sale of decedent's home to Nellie and Bea, at a family meeting on January 5, 2001. Three days later, Johnny announced "that he had erred in drawing up the codicil." However, according to Rose, Johnny continued to make efforts to arrange for the sale of the home to Nellie and Bea.
The decedent's home was ultimately sold to Robert. The parties do not dispute that, according to the terms of the will, Robert's purchase of the home was to have included "all of the furniture and furnishings therein" except for those items belonging to Nellie or otherwise provided for in the will.
On April 4, 2002, Robert filed a petition for appointment of a special administrator to pursue an action for financial abuse, physical abuse, and neglect allegedly committed against the decedent by Nellie, Johnny, Gloria, Ray, and Bea. The probate court denied the petition without prejudice.
On July 2, 2002, Johnny [*5] filed a final accounting and petition for settlement of the estate. The accounting indicated that the walnut chair from Mexico had been given to Robert. It also stated that the estate had total assets of $ 554,273.15.
Robert filed an objection and an accompanying petition for removal of the executor and for appointment of himself as administrator. In his pleadings, Robert asserted that: (1) Nellie had removed furniture and furnishings from the decedent's home that rightfully belonged to Robert as purchaser of the residence; (2) Johnny and Nellie had committed elder abuse by appropriating money from the decedent when she was sick, weak, and dependent on them for her personal and financial care; and (3) Nellie had committed elder abuse by physically and verbally abusing the decedent during her final illness. In the petition for removal, Robert asserted that Johnny suffered from a conflict of interest because the estate had potential claims against him for elder abuse. (See Welf. & Inst. Code, § 15657.3, subd. (d) ["Upon petition, after the death of the elder or dependent adult, the right to maintain an action [for elder abuse] shall be transferred [*6] to the personal representative of the decedent, or if none, to the person or persons entitled to succeed to the decedent's estate"].)
The petition for removal was supported by declarations from Mary Ann n3 and Robert. Both stated in their declarations that Mary Ann had seen her sister Nellie physically and verbally abuse the decedent when the decedent was seriously ill, in the months before she died. In addition, Mary Ann submitted numerous cancelled checks marked "Loan" that had been written by the decedent, naming Nellie as payee. Mary Ann and Robert each stated, "I am informed and believe that Nellie never paid these loans back to the decedent or her estate." Robert also attached to his declaration copies of a December 1999 document in which the decedent purportedly agreed to relieve Johnny of the obligation to make payments to the decedent on a 1975 annuity agreement, and $ 20,000 in checks marked "gift" written by the decedent to Johnny and his wife in December 1999. Finally, Robert produced a $ 20,000 check written on the decedent's account to Johnny and his wife on November 30, 2000, when the decedent was allegedly too sick to write. The check was apparently signed by Ray. [*7]
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Mary Ann subsequently retracted her declaration in a letter to the probate judge.
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In response to Robert's petition, all six of the decedents' other children jointly filed a declaration stating that Johnny should not be removed as executor, that "none of the undersigned contemplates filing an elder abuse action against any of the decedent's children," that Johnny's petition for settlement and final distribution should be approved, and that a third party should "be appointed to determine what, if any, furniture and furnishings ROBERT S. CHELL did not receive pursuant to the terms . . . of decedent's Will, and, if he did not receive an item, to fix the value of the same."
On September 12, 2002, the probate court held a hearing on Robert's petition to remove Johnny as executor. At the hearing, the court and the parties agreed to submit the matter of the furniture and furnishings to a neutral arbitrator to determine the value of any property Robert should have received as purchaser of the house, but did not. [*8] The court took under submission the petition to remove Johnny as executor.
On October 11, 2002, the probate court issued a written order denying the petition to remove Johnny as executor. The court noted that the parties had agreed to resolve the issue of the furniture and furnishings through arbitration. The court found no competent evidence of waste, mismanagement, or fraud by Johnny, and no competent evidence of physical abuse or neglect of the decedent by Johnny. However, the court concluded that Mary Ann's declaration contained competent evidence of physical abuse by Nellie Guerrero in the form of hitting the decedent and pulling her hair. In addition, the court found there was evidence that the decedent made a "substantial" monetary gift to Johnny thirty days before her death when she "was quite ill and dependent upon others for her care." The court concluded that a reasonable and prudent representative would have conducted further inquiry into "the advisability of an elder abuse action against Nellie" and the propriety of the "substantial gifts of cash made at a time when the decedent appeared to be incapacitated."
The probate court nevertheless denied the petition for removal [*9] of the executor on the grounds that Robert "no longer has an interest in the estate," and that the other siblings had signed a declaration opposing Robert's petition and requesting approval of the final accounting. The probate court stated: "Where, as here, the beneficiaries have expressed an unequivocal desire to retain the personal representative and have the estate brought to a close, it would torture logic to hold that the personal representative must nevertheless be replaced by a representative who will pursue an action which the beneficiaries do not desire. In fact, a strong argument could be made that pursuit of such an action would in itself be a breach of the duty owed to the beneficiaries."
Robert filed this appeal from the probate court's order denying his petition for removal. An order denying a petition for removal of an executor is appealable pursuant to Probate Code section 1300, subdivision (g).
II
DISCUSSION
A. The Probate Court Acted Within Its Broad Discretion In Denying The Petition For Removal Of The Executor
The probate court found that Robert's allegations of physical and financial abuse by Nellie and Johnny were [*10] sufficient to warrant further inquiry by the executor. However, the court denied the petition for removal of the executor on the ground that Robert "no longer has an interest in the estate" and the other beneficiaries did not wish to pursue any claims of elder abuse. Robert asserts that the probate court's ruling was incorrect because he has a continuing interest in the decedent's furniture and furnishings, as purchaser of her residence. We find that Robert's limited interest in the furniture and furnishings does not confer standing to assert a broader interest in potential claims of physical or financial abuse on behalf of other beneficiaries. Further, in light of Robert's agreement to arbitrate the issues pertaining to the furniture and furnishings, we conclude that the probate court acted within its discretion in denying Robert's petition for removal of the executor.
Probate Code section 8500 provides that any "interested person" may petition for removal of an executor from office. An "interested person" includes any "heir, devisee, child, spouse, creditor, beneficiary, and any other person having a property right in or claim against a trust estate [*11] or the estate of a decedent which may be affected by the proceeding." (Prob. Code, § 48, subd. (a)(1), italics added.) "The meaning of 'interested person' as it relates to particular persons may vary from time to time and shall be determined according to the particular purposes of, and matter involved in, any proceeding." (Prob. Code, § 48, subd. (b).) Thus, a person may be "interested" in the estate for one purpose "but not for another." (Estate of Davis (1990) 219 Cal. App. 3d 663, 668, 268 Cal. Rptr. 384.)
"Section 48, subdivision (b) broadly permits the court to determine the sufficiency of a party's interest for the purposes of each proceeding conducted." (Estate of Maniscalco (1992) 9 Cal.App.4th 520, 523-524.) This provision "is designed to provide the probate court with flexibility to control its proceedings to both further the best interests of the estate and to protect the rights of interested persons to those proceedings." (Id. at p. 524.) Section 48, subdivision (b) requires the probate court "to evaluate the underlying policy considerations in determining whether the person [*12] or party is sufficiently interested to intervene." (Estate of Maniscalco, supra, 9 Cal.App.4th at p. 524.) On appeal, we review the probate court's determination under the deferential "abuse of discretion" standard. (Arman v. Bank of America (1999) 74 Cal.App.4th 697, 702.)
We conclude that the probate court acted within its broad discretion in concluding that Robert's limited interest in the decedent's furniture and furnishings did not make him an "interested person" as to the estate's potential claims of physical or financial abuse. The will explicitly stated that the decedent made "no provision" for Robert because he had been "previously provided for" by the decedent and her late husband. The only property left to Robert in the will was a walnut chair; the rest of the estate went to Robert's six siblings. Thus, Robert would not be entitled to any share of the proceeds of a suit by the estate for physical or financial abuse. As a result, the probate court's determination that Robert was not an "interested person" with respect to the estate's potential claims for elder abuse was well within the bounds of reason.
In the probate court, Robert asserted [*13] that he was acting to protect the rights of other beneficiaries to pursue potential claims of elder abuse against Johnny and Nellie. Specifically, both Robert and his attorney contended that two of the other siblings who did not participate in the alleged elder abuse, Mary Ann and Rose, were incapable of pursuing these claims because they are themselves elderly and infirm. Robert argued that he should therefore be permitted to assert the estate's interest in pursuing claims of elder abuse and financial abuse on their behalf. On appeal, Robert also suggests that he is acting to protect the rights of other beneficiaries.
However laudable Robert's motives, he does not have standing to assert the rights of other beneficiaries of the estate. (See, e.g., Estate of Uhl (1969) 1 Cal. App. 3d 138, 144, 81 Cal. Rptr. 436 [holding petitioner lacked standing to assert claim of error affecting only a legatee who was not a party to appeal]; Estate of King (1953) 121 Cal. App. 2d 765, 770 [holding decedent's wife lacked cognizable "interest" in estate where decedent made provisions for wife outside will and her interest in foster daughter's one dollar share did [*14] "not in any way make (her) a party interested in the estate"].) Thus, we conclude that the only grounds Robert had standing to assert in his petition for removal of the executor were those pertaining to his own interest in the furniture and furnishings. n4
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Robert also lacks standing to raise the elder abuse issues on appeal. To have standing on appeal, a person must be "aggrieved" in the sense that his own rights or interests are injuriously affected. (Code Civ. Proc., § 902; County of Alameda v. Carleson (1971) 5 Cal.3d 730, 736-737, 97 Cal. Rptr. 385.) The appealing party's interest must be immediate, pecuniary, and substantial, and not a nominal or remote consequence of the judgment or order. (Id. at p. 737.) A party "may not assert error that injuriously affected only nonappealing coparties." (Rebney v. Wells Fargo Bank (1990) 220 Cal. App. 3d 1117, 1128, 269 Cal. Rptr. 844.) "Our resources are limited and thus are not brought to bear when appellants have suffered no wrong but instead seek to advance the interests of others who have not themselves complained." (Id. at p. 1132.)
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[*15] We also find that the probate court acted within its discretion in refusing to remove the executor based on Robert's allegation that Johnny wrongfully allowed furniture and furnishings to be removed from the decedent's residence. The decision whether to remove an executor is committed to the discretion of the probate court and will not be interfered with by the appellate court unless there has been a clear abuse of discretion. (Estate of Hammer (1993) 19 Cal.App.4th 1621, 1634.) We must affirm the probate court's ruling unless no judge reasonably could have reached the challenged result. (Ibid.)
As the probate court noted, Robert agreed to resolve the issue of the furniture and furnishings through arbitration. With the express consent of the parties, the probate court ordered an arbitrator to determine whether any property had been wrongfully taken from the decedent's residence, and if so, to calculate its value. n5 By ordering the matter of the furniture and furnishings to arbitration, the probate court has taken steps less drastic than removal of the executor to protect Robert's limited interest in the estate. Further, there has been no final adjudication of [*16] Robert's allegation that furniture and furnishings were wrongfully taken from the residence. In these circumstances, we find no abuse of discretion in the trial court's order denying Robert's petition to remove the executor on the ground that the executor wrongfully allowed the removal of furniture and furnishings from the decedent's residence.
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Robert asserts in his opening brief: "There is no written stipulation for arbitration between the parties." However, Robert stated in a sworn declaration that he did not object to this issue "being resolved in arbitration by a third party prior to closure of the estate . . . ." His attorney also stated at the hearing, "we're not objecting to the third-party arbitrator." Further, Robert's attorney did not object or correct the probate judge when the judge stated on the record that "both parties have stipulated to arbitrate the issue . . . and I will accept that stipulation and enter an order that that matter is submitted to arbitration." Thus, the probate court clearly ordered the matter to arbitration with Robert's consent.
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[*17] Although we affirm the order, we nevertheless encourage the probate court to consider the potential claims of physical abuse and financial abuse in deciding whether to approve the final accounting. The probate court itself is the guardian of the deceased person's estate and has a duty to safeguard the rights of any beneficiaries under the will. (Nathanson v. Superior Court (1974) 12 Cal.3d 355, 365, 115 Cal. Rptr. 783.) The probate court is "possessed of the power and charged with the duty of scrutinizing with care the accounts of the executor, and inquiring generally into the truth and accuracy of the facts set forth therein . . . ." (Carr v. Bank of America Nat. Trust & Savings Assn. (1938) 11 Cal.2d 366, 373.) In so doing, the probate court has broad authority to conduct any hearing necessary to settle the account. (Prob. Code, § 11002, subd. (a).)
The probate court specifically suggested that the evidence of financial abuse by Johnny and Nellie and the evidence of physical abuse by Nellie is sufficient to warrant further inquiry by the executor. Although the other beneficiaries signed a joint declaration stating [*18] they do not intend to pursue any claims of elder abuse, two of them previously filed declarations in which they suggested improper conduct by Johnny and Nellie. Further, Robert has alleged that the two siblings who filed these declarations are mentally and physically incapable of pursuing any such claims because they are elderly and in poor health themselves. Although we are not in a position to assess the truth of Robert's contentions on this record, the probate court may wish to consider whether further investigation of the alleged financial abuse and physical abuse is in fact warranted. If so, the probate court retains the authority to remove the executor on its own initiative if it determines there is a conflict of interest. (Prob. Code, § 8500, subd. (b).)
III
CONCLUSION
The probate court did not abuse its discretion in denying Robert's petition for removal of the executor. Robert lacks any cognizable interest in the estate's potential claims for elder or financial abuse, and the probate court has taken adequate steps to protect Robert's only remaining claim in the furniture and furnishings. However, we encourage the probate court to consider [*19] whether further investigation of the potential claims of elder or financial abuse is in fact warranted, and if so, whether Johnny should be removed as executor due to a conflict of interest.
IV
DISPOSITION
The order denying the petition for removal of the executor is affirmed. Respondent is entitled to costs on appeal.
AARON, J.
WE CONCUR:
HUFFMAN, Acting P. J.
McDONALD, J.
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Estate of MARLON BRANDO, Deceased. DEBORAH BRANDO, Petitioner and Appellant, v. AVRA DOUGLAS et al., Objectors and Respondents.
B209699
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION TWO
2009 Cal. App. Unpub. LEXIS 6383
July 30, 2009, Filed
NOTICE:
NOT TO BE PUBLISHED IN 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 THE PURPOSES OF RULE 8.1115.
PRIOR HISTORY: [*1]
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BP086759, Mitchell L. Beckloff, Judge.
DISPOSITION:
Affirmed.
COUNSEL: Greg J. Venturi for Petitioner and Appellant.
Larson & Bawden, Charles A. Larson and Elizabeth A. Bawden; Winston & Strawn, Michael S. Brophy and Robert F. Gookin for Objectors and Respondents.
JUDGES: CHAVEZ, J. We concur: BOREN, P. J., ASHMANN-GERST, J.
OPINION BY: CHAVEZ
OPINION
Petitioner and appellant Deborah Brando (appellant) appeals the dismissal of her action against objectors and respondents Avra Douglas, Larry Dressler, and Mike Medavoy (respondents) after the probate court sustained, without leave to amend, respondents' demurrer to appellant's first amended petition for probate of will, to set aside final accounting and distribution, and to reopen the probate of a codicil to the will. We affirm the judgment.
BACKGROUND
Respondents are the discharged co-executors of the now closed estate of Marlon Brando (the Estate). Appellant is the former spouse of Christian Brando, the eldest child of Marlon Brando (decedent), and claims to be the assignee of Christian Brando's rights under decedent's will.
Decedent died on July 1, 2004. His will, dated August 28, 2002, and a codicil, dated June 18, 2004, [*2] were admitted to probate on August 25, 2004. The only beneficiaries named in decedent's will are Alice Marchak, Blanche Hall, and decedent's living trust. Although decedent's will named JoAn Corrales and Alice Marchak as executors of his estate, the codicil substituted respondents as co-executors. The parties agree that the only effect of the codicil was to change the identity of the estate's executors.
Letters testamentary were issued to respondents as co-executors of the estate on September 2, 2004. The probate court issued an order approving the first account current and report of administration on October 3, 2005. The probate court issued an order approving and settling second and final account on May 7, 2007. Respondents were discharged as co-executors on September 13, 2007.
On September 10, 2007, appellant filed a creditor's claim with the closed estate. On October 10, 2007, appellant filed her first petition for probate of will, which the probate court subsequently dismissed without prejudice after appellant's counsel failed to attend a scheduled hearing on that petition.
Christian Brando died on January 26, 2008. On January 28, 2008, appellant filed a second petition for probate [*3] of will and to reopen probate of the codicil. In her petition, appellant alleged that she had standing based on "her status as an adult, assignee from Christian Brando, of his rights as beneficiary." Appellant further alleged that the codicil to decedent's will was forged.
Respondents demurred to appellant's petition on the grounds that appellant lacked standing to contest the probate of the will and codicil and that her claims were barred by the 120-day limitations period imposed by Probate Code section 8270. In her opposition to the demurrers, appellant insisted that her status as Christian Brando's assignee gave her standing to contest the probate and that the alleged forgery of the codicil constituted "extrinsic fraud" that tolled the 120-day limitations period. The probate court sustained respondents' demurrers but granted appellant leave to amend. In its minute order sustaining the demurrer, the probate court expressly noted that appellant had alleged only intrinsic fraud, not extrinsic fraud, and cited U.S. v. Throckmorton (1878) 98 U.S. 61.
On April 3, 2008, appellant filed a first amended petition for probate of will, to set aside final accounting and distribution, and to reopen [*4] probate. In her amended petition, appellant alleged that the following facts constituted extrinsic fraud: "Prior to the probate of the will and Codicil of Marlon Brando, and outside of and prior to the jurisdiction of the Probate Court, Marlon Brando's signature on the codicil and the amendment to his trust were forged, and he did not sign either document. Said forgery was an illegal felony under Penal Code 470." Respondents again demurred to the petition on the grounds that appellant lacked standing and that her claims were time-barred. Following a hearing on the matter, the probate court sustained the demurrers without leave to amend. This appeal followed.
DISCUSSION
I. Standard of Review
"On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled. The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be affirmed 'if any one of the several grounds of demurrer is well taken. [Citations.]' [*5] [Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.]" (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) The legal sufficiency of the complaint is reviewed de novo. (Montclair Parkowners Ass'n v. City of Montclair (1999) 76 Cal.App.4th 784, 790.) We review the probate court's order sustaining the demurrers without leave to amend for abuse of discretion. (Estate of Powers (1979) 91 Cal.App.3d 715, 724-725.)
II. Standing
Probate Code section 8270, subdivision (a), provides that "[w]ithin 120 days after a will is admitted to probate, any interested person . . . may petition the court to revoke the probate of the will." An "interested person" is one who has "'"a pecuniary interest in the devolution of the testator's estate, as would be impaired or defeated by the probate of a will or be benefitted by the setting aside of the will"'" (Estate of Lind (1989) 209 Cal.App.3d 1424, 1430-1431), and includes "[a]n heir, devisee, child, spouse, creditor, beneficiary, and any other person having a property right in or claim against a trust estate or the estate of a decedent [*6] which may be affected by the proceeding." (Prob. Code, § 48, subd. (a)(1).) Only an "interested person" is entitled to contest a will before or after probate. (Estate of Lind, supra, at p. 1430.)
Appellant claims to be an "interested person" with standing to contest decedent's will and codicil based on her status as an assignee or creditor of Christian Brando. The record shows, however, that Christian Brando had no rights under decedent's will because he was neither an heir nor a beneficiary under that will. Appellant's status as an assignee or creditor of Christian Brando accordingly gives her no pecuniary interest in decedent's estate, and she alleges no pecuniary interest apart from her status as an assignee or creditor. Appellant lacks standing to contest the probate of decedent's will and codicil. The demurrers to appellant's petition were properly sustained on that basis.
III. Statute of Limitations
Appellant's claims are also time-barred under Probate Code section 8270. Subdivision (a) of that statute accords an interested party 120 days to petition for revocation of probate. Decedent's will and codicil were admitted to probate on August 25, 2004. The period to petition for revocation [*7] of probate expired 120 days later, on December 23, 2004. Appellant did not file her petition for probate until October 10, 2007, nearly three years after expiration of the 120-day statutory period. Her petition was thus untimely.
Appellant contends her claims are not time-barred because Probate Code section 8007, subdivision (b), authorizes challenges to a final probate court order premised on "[t]he presence of extrinsic fraud in the procurement of the court order." She maintains that the probate court's orders closing the estate and discharging the co-executors were procured through "extrinsic fraud" because decedent's signature on the codicil was forged.
Probate Code section 8007, subdivision (a) states that "an order admitting a will to probate or appointing a personal representative, when it becomes final, is a conclusive determination of the jurisdiction of the court and cannot be collaterally attacked." Subdivision (b) of the statute sets forth an exception to the rule of finality in the event there is "extrinsic fraud in the procurement of the court order." n1
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In its entirety, Probate Code section 8007 states: "(a) Except as provided in subdivision (b), an order admitting a will [*8] to probate or appointing a personal representative, when it becomes final, is a conclusive determination of the jurisdiction of the court and cannot be collaterally attacked. [P] (b) Subdivision (a) does not apply in either of the following cases: [P] (1) The presence of extrinsic fraud in the procurement of the court order. [P] (2) The court order is based on the erroneous determination of the decedent's death."
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Extrinsic fraud, to be a proper basis for relief under Probate Code section 8007, must have prevented the defrauded party from contesting the will. In determining whether such relief is warranted, courts distinguish between extrinsic fraud and intrinsic fraud. Extrinsic fraud is "'fraud practiced directly upon the party seeking relief against the judgment or decree [such] that [the] party has been prevented from presenting all of his case to the court.'" (Caldwell v. Taylor (1933) 218 Cal. 471, 475-477, quoting United States v. Throckmorton, supra, 98 U.S. at pp. 65-66.) "Extrinsic fraud occurs when a party is deprived of the opportunity to present his claim or defense to the court; where he was kept ignorant or, other than from his own negligence, fraudulently prevented from [*9] fully participating in the proceeding. [Citation.] Examples of extrinsic fraud are: concealment of the existence of a community property asset, failure to give notice of the action to the other party, and convincing the other party not to obtain counsel because the matter will not proceed (and then it does proceed). [Citation.] The essence of extrinsic fraud is one party's preventing the other from having his day in court." (City and County of San Francisco v. Cartagena (1995) 35 Cal.App.4th 1061, 1067.)
"By contrast, fraud is intrinsic and not a valid ground for setting aside a judgment when the party has been given notice of the action and has had an opportunity to present his case and to protect himself from any mistake or fraud of his adversary but has unreasonably neglected to do so. [Citation.] Such a claim of fraud goes to the merits of the prior proceeding which the moving party should have guarded against at the time. Where the defrauded party has failed to take advantage of liberal discovery policies to fully investigate his claim, any fraud is intrinsic fraud. [Citation.]" (City and County of San Francisco v. Cartagena, supra, 35 Cal.App.4th at pp. 1067-1068.) Allegations [*10] concerning a forged will constitute intrinsic fraud. (Granzella v. Jargoyhen (1974) 43 Cal.App.3d 551, 556.)
Appellant's allegations concerning the forged codicil constitute intrinsic rather than extrinsic fraud and are insufficient to disturb the finality of the probate proceedings she seeks to reopen. Appellant has failed to suggest how she would amend her petition to correct the defects noted above. The trial court therefore did not abuse its discretion by sustaining the demurrers without leave to amend.
DISPOSITION
The judgment is affirmed. Respondents are awarded their costs on appeal. n2
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Although respondents did not file a motion for sanctions, they urge this court to impose sanctions on appellant pursuant to California Rule of Court, rule 8.276 for making a frivolous appeal. We decline to do so.
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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
CHAVEZ, J.
We concur:
BOREN, P. J.
ASHMANN-GERST, J.
