Filed 2/28/18 Estate of Derickson CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



Estate of Linn W. Derickson, Deceased.

Linn W. Derickson, Jr., as Personal Representative, etc.,

Petitioner and Respondent,

v.

Janet Whelan,

Objector and Appellant;

Janet Benninghoff,

Claimant and Respondent.
D073009


(Super. Ct. No. PROPS0900650)


APPEAL from an order of the Superior Court of the County of San Bernardino, Hon. Kyle Brodie, Judge. Reversed.
Robert L. Kern and Russell A. Dalton for Objector and Appellant.
Anderson & LeBlanc and Jeff W. LeBlanc for Petitioner and Respondent.
Hartnell Law Group and Bryan C. Hartnell for Claimant and Respondent.
The proceedings related to decedent Linn W. Derickson's holographic will have been protracted. Little of the past litigation, however, has a bearing on this appeal. We are tasked instead with a simple question of interpretation: Who is the person alternately referred to in the will as "Janet Derickson nee Whelan," "Janet Derickson-Whelan," and "Janet Derickson, Whelan"?
The decedent had two "Janets" in his life: (1) a daughter named Janet Benninghoff, who was known as Janet Derickson before she married; and (2) a companion, associate, paramour, or friend of sorts named Janet Whelan. Whelan contends that she is "Janet Derickson [] Whelan." The estate administrator and Benninghoff assert that Benninghoff is.
Whelan prevails. Because she had a romantic relationship of some kind with the decedent, "Janet Derickson [] Whelan" could plausibly refer to her; the two may well have planned to wed at some point in the future. The same cannot be said of Benninghoff, who has no ties to the surname "Whelan." And the will provides for Benninghoff as "Janet Benninghofen" elsewhere. In light of the language used and the circumstances surrounding the will's execution, there is only one reasonable construction. Whelan is "Janet Derickson [] Whelan." Accordingly, we are compelled to reverse.
FACTUAL AND PROCEDURAL BACKGROUND
The decedent had several partners during his lifetime. In November 2006, he separated from his then-wife Mary Sue Derickson and a year later filed for—what was allegedly—his fourth divorce. The family law court bifurcated the proceeding and entered a status-only judgment regarding the dissolution in December 2008 but retained jurisdiction to divide the property from the marriage. The dissolution proceeding was ongoing when the decedent passed away in 2009. He was survived by three children from an earlier marriage: Linn W. Derickson, Jr. (the estate administrator and respondent); Janet Benninghoff, formerly known as Janet Derickson; and Judy Hughes, formerly known as Judy Derickson.
At some point before his separation from Mary Sue, the decedent began a relationship of sorts with appellant Janet Whelan. The precise contours of Whelan's status vis-à-vis the decedent are unclear. The decedent's obituary dubbed her a "special friend." She has described their association as "what politely might be termed an 'extramarital illicit relationship' for an extended period." In briefing before the probate court, Mary Sue, Benninghoff, and the administrator used the more colorful designation "paramour." However, in other briefing before the probate court, the administrator opted for more distant language, stating Whelan "was apparently an associate of the [d]ecedent, but the extent of that relationship is unknown."
In any event, Whelan's surname appears three times in the decedent's holographic will. The will, executed in June 2007, was admitted to probate in April 2010. It consists of three substantive pages.
A page entitled "Upon Death" lists five numbered clauses. The first clause bequeaths a piece of real estate to "Janet Derickson nee Whelan." The second gives another property to "Janet Benninghofen." The third provides that "Janet Derickson-Whelan, Linn Derickson Jr and Judy Hughes" will share equally in the profits from several of the decedent's assets; the fifth specifies that upon the death of "Janet Derickson, Whelan [¶] Linn Jr Derickson and Judy Hughes," the aforementioned profit shares become part of a remaining trust. The fourth provides that the equity in trust "other than items 1 and 2" goes to Hughes's three children. A separate page entitled "Put in Living Trust" and the following page list ten assets, including the homes referenced in the first and second clauses of the "Upon Death" document.
The probate proceedings moved slowly, largely due to the related ongoing dissolution proceeding. The division of marital assets in the decedent's divorce from Mary Sue was settled in the family law court in late 2014.
In early 2016, the administrator filed a Petition for Determination of Entitlement to Estate Distribution. (See Probate Code, § 11700.) This petition ultimately raised two issues: (1) who was the decedent referring to when he named "Janet Derickson nee Whelan," "Janet Derickson-Whelan," and "Janet Derickson, Whelan" in respectively the first, third, and fifth clauses of the "Upon Death" page of the will; and (2) whether the decedent intended to establish a trust.
Regarding the first issue, the probate court concluded that the decedent was referring to his daughter Benninghoff in light of "the familial relationships, the overall physical structure of the document, and the absence of any competent evidence proving that 'Janet Whelan' had any meaningful connection to [the] decedent." As a result, Whelan took nothing under the will. On the second issue, the court concluded that a trust was created, but did not include the homes referenced on the "Upon Death" page; instead, both went to Benninghoff outright. Whelan appeals as to the first issue.
DISCUSSION
1. Legal Principles
"[I]t is 'a judicial function to interpret a written instrument unless the interpretation turns on the credibility of extrinsic evidence.' " (Estate of Dodge (1971) 6 Cal.3d 311, 318 (Dodge), quoting Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865.) Our duty to independently interpret a will is not relieved by "[t]he possibility that conflicting inferences can be drawn from uncontroverted evidence . . . ." (Dodge, at p. 318.) Instead, "it is only when the issue turns upon the credibility of extrinsic evidence, or requires resolution of a conflict in that evidence, that the trial court determination is binding." (Ibid.)
The "paramount rule" in construing a will is to give effect to the testator's intention as expressed therein. (§ 21102, subd. (a); Estate of Russell (1968) 69 Cal.2d 200, 205 (Russell).) The "objective is to ascertain what the testator meant by the language he used." (Russell, at p. 206.)
"[W]here the intention of the transferor is not indicated by the instrument," we turn to the rules of construction provided by the Probate Code. (§ 21102, subd. (b).) "The words of an instrument are to receive an interpretation that will give each expression some effect, rather than one that will render any of the expressions inoperative." (§ 21120.) The parts are to be construed together and "if possible, to form a consistent whole." (§ 21121.) Nothing in the rules of construction is intended to restrict the court's reference to extrinsic evidence "to the extent otherwise authorized by law." (§ 21102, subd. (c).)
The court may turn to extrinsic evidence where the language of the will is ambiguous—i.e., where "the provisions of the will are reasonably susceptible of two or more meanings . . . ." (Russell, supra, 69 Cal.2d at p. 212.) Extrinsic evidence regarding the circumstances surrounding the will's execution may also be introduced to expose a latent ambiguity. (Id. at pp. 206–207.) A latent ambiguity, as opposed to a patent ambiguity, is one that is not apparent from the face of the will but established by a collateral fact. (Ibid.) " 'Broadly speaking, there are two classes of wills [that] present[] latent ambiguities' ": (1) " 'where there are two or more persons or things exactly measuring up to the description and conditions of the will' "; and (2) " 'where no person or thing exactly answers the declarations and descriptions of the will, but [] two or more persons or things in part though imperfectly do so answer.' " (Id. at p. 207, quoting Estate of Donnellan (1912) 164 Cal. 14, 20 (Donnellan).)
2. Who Is Janet?
The issue on appeal is narrow: Who is the "Janet" in the first, third, and fifth clauses of the will? "Since the record in the present case discloses no conflict in the extrinsic evidence, and no issues of credibility, it becomes our task to arrive at an independent interpretation of the will." (Dodge, supra, 6 Cal.3d at p. 318.)
The parties proffer two divergent readings. Whelan unsurprisingly claims that she is the intended "Janet." The administrator urges that Benninghoff is the "Janet" in question. Benninghoff, also unsurprisingly, favors the administrator's interpretation.
Whelan has the better argument. Most saliently, the will refers to her surname. And it is conceivable that the inclusion of "Derickson" was a reference to her as well. "[I]t is self-evident that in the interpretation of a will, a court cannot determine whether the terms of the will are clear and definite in the first place until it considers the circumstances under which the will was made so that the judge may be placed in the position of the testator whose language he is interpreting." (See Russell, supra, 69 Cal.2d at p. 210.) When the decedent penned his will, he was in a romantic relationship of some kind with Whelan and had already separated from his then-wife. He filed for divorce shortly thereafter. Thus, he may well have contemplated that Whelan would take his surname in a future marriage. Indeed, Whelan's initial declaration in the probate proceedings stated that the two intended to wed. But even without Whelan's averment, the mere fact that she and the decedent were somehow romantically involved—regardless of the extent or, as the trial court phrased it, "meaningfulness" of their connection—gives rise to the possibility that she could be "Janet Derickson nee Whelan," "Janet Derickson-Whelan," and "Janet Derickson, Whelan" at some point in the future. (See Black's Law Dict. (10th ed. 2014) p. 1194, col. 2 [defining "née" or "nee" as a "term sometimes used after a married woman's name to indicate her maiden name"].) That is, it is reasonably plausible that Janet Whelan is the will's "Janet Derickson [] Whelan."
The same is not true of Benninghoff. While Benninghoff may claim the name "Janet Derickson" as her appellation before marriage, she—at least on the record before us—has no ties whatsoever to the moniker "Whelan." Accordingly, we see no way to reasonably construe "Janet Derickson [] Whelan" as Benninghoff unless we effectively strike "Whelan" from the name. Thus, this is not a case like Donnellan where both proffered interpretations result in "rejecting some part of such designation or description." (Donnellan, supra, 164 Cal. at p. 21.) The designation can be read as referring to Whelan without any alteration. Where one interpretation leaves the decedent's intended language fully intact, we are not inclined to adopt another that requires judicial modification. Moreover, there is simply no explanation as to why the decedent would refer to Benninghoff in the same document alternatively as "Janet Derickson [] Whelan" and "Janet Benninghofen." (See § 21120.)
The provision of a separate property to Benninghoff as "Janet Benninghofen" also negates the administrator's argument that reading the first, third, and fifth clauses as referring to Whelan "seemingly disinherit[s] one of [the decedent's] daughters." Benninghoff is not disinherited under the will; she still receives the property referenced in the second clause. On the other hand, if the three clauses in question are read as referring to Benninghoff, Benninghoff will receive more than her two siblings—a fact that runs contrary to the administrator's implication that the decedent must have intended to treat his three children equally by giving each a one-third interest in the income from the assets delineated in the third clause. Similarly, ill-fated is the administrator's implication we should interpret the will in favor of a distribution to the decedent's blood relatives. Because the administrator's proffered interpretation is not a reasonable construction of the will, that proposition has no bearing here. (See Estate of Lawrence (1941) 17 Cal.2d 1, 12.)
We resist any temptation to consider how we think the decedent should have disposed of his property. The only question is determining his intent as expressed in his will. And there is but one reasonable proffered construction of the "Janet" mentioned in the first, third, and fifth clauses of that will: "Whelan" refers to appellant Whelan.
DISPOSITION
The order is reversed insofar as it construed the first, third, and fifth clauses of the decedent's will as referring to Benninghoff and not Whelan, and the matter is remanded with instructions to modify the order accordingly. Whelan shall recover her costs on appeal.

DATO, J.

WE CONCUR:



BENKE, Acting P. J.



O'ROURKE, J.