A conservatorship was established over the persons and estates of Regina Bookasta and her now-deceased husband E.H. Bookasta under provisions of Probate Code section 1801 et seq.
The relevant facts are as follows: In March 1987, the Bookastas' son, George Bookasta, petitioned for appointment of a conservator over the persons and estates of his mother and father, then aged 91 and 101,
The Bookastas filed objections to George's allegations in the petition for conservatorship which they characterized as "false" and asserted that he had exerted undue influence over them. Despite these objections a conservator was appointed on May 13, 1987.
Prior to the appointment of the conservator, on April 16, 1987, the Bookastas executed new wills.
The Bookastas then filed two petitions, the first to terminate their conservatorship, and the second for an order broadening their legal capacity as conservatees to enter into certain transactions including the trust revocations. Their conservator filed no objections to the trust revocations but sought to examine the Bookastas' wills to determine whether they were the result of undue influence. The conservator also opposed the petition to terminate the conservatorship.
George Bookasta filed objections to both petitions. He urged the court to make a "careful examination" of both the trust revocations and the April 16 wills, alleging that approval "would be unwise and would invite future litigation."
Although both petitions were set for hearing, the sole issue with which the court concerned itself was the termination of the conservatorship. The only two witnesses called were the then-conservator, Mary Holabird, and a psychiatrist, Ronald C. Smith.
On the subject of undue influence, the conservator testified to a single incident in which she believed Mrs. Bookasta had been influenced by her
On this testimony the court orally denied the Bookastas' petition to terminate the conservatorship but said nothing about their second petition. Subsequently, in a written order, the court denied the second petition finding that the Bookastas lacked "legal capacity" to revoke the trust or to execute the wills. This appeal ensued. We reverse.
A court assumes jurisdiction over a will upon a filing of a petition for probate of the will. (§ 8000, subd. (a)(2).) Once jurisdiction exists the will may be contested (§ 8004, subd. (b); Estate of Visaxis (1928) 95 Cal.App. 617, 621 [273 P. 165]) for lack of testamentary capacity or undue influence (§ 8252, subd. (a)). Upon such contest "[t]he court shall try and determine any contested issue of fact that affects the validity of the will." (§ 8252, subd. (b).) Since the court below was clearly not acting under the provisions of the Probate Code, no will having been filed as part of these proceedings, we must look elsewhere for the trial court's jurisdiction to invalidate the Bookastas' wills.
We next examine whether the conservatorship statute (§ 1801 et seq.) confers such authority. The conservatorship statute permits a court to "appoint a conservator for a person who [is] neither insane nor incompetent, but who, for a variety of other reasons, need[s] direction in the management of his [or her] affairs." (Board of Regents v. Davis (1975) 14 Cal.3d 33, 39 [120 Cal.Rptr. 407, 533 P.2d 1047], fn. omitted.) A conservator may be sought where the proposed conservatee is unable to see to his or her own basic physical needs (§ 1801, subd. (a)), or to manage his or her own estate or to do so free from undue influence or fraud (§ 1801, subd. (b)). Hence, conservatorship proceedings involve issues of the proposed conservatee's ability to transact the routine business of life.
This is made clear by the conservatorship statute itself. Section 1872, subdivision (a) states: "Except as otherwise provided in this article, the appointment of a conservator of the estate is an adjudication that the conservatee lacks the legal capacity to enter into or make any transaction that binds or obligates the conservatorship estate." A specific exception to this general rule of legal incapacity, however, is that the conservatee retains "[t]he right to make a will...." (§ 1871, subd. (c).)
The Assembly's Legislative Committee comment to the 1979 version of section 1871 is even more explicit: "Appointment of a conservator is not a determination that the conservatee lacks testamentary capacity. Testamentary capacity is determined by a different standard, which depends upon the soundness of mind." (Legis. committee com., Assem., 54A West's Ann. Prob. Code (1981 ed.) § 1871, pp. 191-192; Deering's Ann. Prob. Code (1981 ed.) § 1871, p. 372.)
We conclude that the trial court's finding that the Bookastas lacked legal capacity to execute their wills was error. The court determined the validity of the testamentary act by an inappropriate standard. In so doing, the court acted in excess of its power, and must be reversed.
As previously noted, appointment of a conservator is an adjudication that the conservatee lacks legal capacity to enter into all transactions that bind or obligate the conservatee's estate, except those specifically exempted. (§§ 1870-1872.) Under section 1873, subdivision (a), however, the court is given the discretion to "broaden or restrict the power of the conservatee to enter into such transactions or types of transactions as may be appropriate in the circumstances of the particular conservatee and conservatorship estate."
We conclude that, in view of the relevant circumstances, the trial court abused its discretion in finding that the Bookastas lacked legal capacity to effectuate the trust revocations.
The declaration of the attorney who assisted the Bookastas in their estate planning, including the trust revocations, averred that they were "fully competent" to undertake such planning. Additionally, the then-conservator concluded — at least in her response to the petition below — that the trust revocations were "not of detriment to the Conservatorship estate or the interests of the Conservatee." Finally, contrary to the current conservator's position on appeal, there was no specific showing that the trust revocations
There is no indication in the record that the court below actually considered these or any other factors relevant to the trust revocation before denying the petition. The trial court therefore abused its discretion by denying the petition to revoke the trusts.
The order of the trial court voiding the 1987 wills and trust revocations is reversed. Appellant to have her costs on appeal.
McClosky, J., and Goertzen, J., concurred.
The conservator argues that the appeal should be dismissed because Mrs. Bookasta lacks legal capacity to employ an attorney to represent her in this proceeding. This argument is without merit. While it is true that a conservatee lacks the legal capacity to enter into contracts (§§ 1870, 1872), other sections of the Probate Code make clear that a conservatee is entitled to legal representation in matters pertaining to the conservatorship. (§ 1470 et seq.)