Filed 9/24/26 Estate of Wanis CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re Estate of MAMDOUH M.
WANIS.
B351295
THANAA BASALI,
(Los Angeles County
Petitioner and Respondent, Super. Ct. No. 19STPB01833)
v.
MICHEL MIKHAIL,
Respondent and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Lynn H. Scaduto, Judge. Affirmed.
Randall Rich for Petitioner and Respondent.
George M. Halimi for Respondent and Appellant.
******
Mamdouh M. Wanis died intestate, survived by his brother,
appellant Michel Mikhail, and his wife, respondent Thanaa
Basali. Pursuant to a Probate Code section 850 petition filed by
Basali, the probate court granted Basali complete ownership of a
condominium Wanis acquired before their marriage. Among the
reasons for the ruling was that Wanis promised he would leave
the condominium to Basali in his will if she paid off the
remaining balance on its mortgage, Basali agreed to do so, and
she fulfilled her end of the agreement. Mikhail challenges all of
the probate court’s rationales for ruling in Basali’s favor.
Because the probate court properly relied on the agreement
between Wanis and Basali, we affirm the order on that basis and
decline to address the propriety of the remaining grounds for the
ruling.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. Decedent purchases a condominium with his
first wife
In 1985, Wanis purchased a three-bedroom condominium
(the condo) in Hawthorne, California with his then-wife Magda
Ibrahim. Wanis and Ibrahim purchased the condo for $41,227,
which they financed with a $4,122 down payment and $37,105
mortgage. When Ibrahim passed away in April 1989, the condo
became Wanis’s sole property.
B. Decedent marries Basali
Wanis married petitioner Thanaa Basali in December 1989.
A few years into their marriage, Wanis stopped working due to
his poor health, and Basali supported the couple with income she
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received from various jobs. Basali maintained a separate bank
account, where she deposited $10,000 she received annually from
her family when she visited them in Egypt. Otherwise, Wanis
and Basali’s finances were intertwined: They had several joint
bank accounts, where Basali deposited her income, and each
executed a power of attorney authorizing the other to make
financial decisions on their behalf.
C. Decedent promises to leave the condo to Basali
if she pays off the outstanding mortgage
In December 1997, Basali received a $25,500 settlement
check from a workplace injury. A few months later, Wanis told
Basali that if she used her settlement proceeds and the money
she received from her family in Egypt to pay off the outstanding
balance on the condo’s mortgage, he would leave the condo to her
in his will. Basali agreed, and in June 1998, she paid off the
remaining $36,227.02 balance on the mortgage using the funds
she received from the settlement and from her family. At some
point, Wanis created two wills: one leaving all of his property to
Basali that was not signed, and another that was signed, but did
not specify who was to receive his property. Neither is dated and
neither contains any witness signatures.
D. Basali funds several improvements to the
property
From 2010 to 2017, Wanis and Basali made several
improvements to the condo, including replacing the flooring
throughout and renovating the kitchen and bathroom. The
couple paid for these improvements using Basali’s income and the
money Basali received from her family in Egypt.
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E. Wanis dies
On January 9, 2017, Wanis passed away, survived by
Basali and four siblings.
II. Procedural History
A. Initiation of Probate Proceedings
In 2021, the probate court appointed Basali to administer
Wanis’s estate. In a series of petitions, Basali sought to establish
her entitlement to the condo through a variety of legal theories,
including (a) the condo was community property, (b) Wanis left
the condo to her in his will, and (c) she adversely possessed the
condo. Wanis’s siblings opposed the petitions and each one was
denied.
B. Basali’s Spousal Property Petition and Petition
for Determination of Ownership of the Condo
On December 17, 2024, Basali filed a spousal property
petition, and on December 23, 2024, Basali filed a petition to
determine the owner of the condo pursuant to Probate Code
section 850. Basali argued that the condo was transmuted from
separate to community property based on Basali and Wanis
commingling their finances and Basali paying the mortgage with
her separate property, and/or that they had an enforceable
contract wherein Wanis would leave the condo to Basali in
exchange for Basali paying off the mortgage on the condo.
Mikhail opposed the petition on February 20, 2025.
C. The Probate Court’s Statement of Decision
After holding an evidentiary hearing on Basali’s petitions
on August 4 and August 5, 2025, the probate court issued a
statement of decision on November 4, 2025, in which it made the
following findings: (1) there was no transmutation of the
property; (2) Basali and Wanis’s finances were “entirely
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intermingled” during their marriage; (3) Basali was the sole
breadwinner; (4) Basali and Wanis “made extensive repairs and
improvements” to the condo using, at least in part, Basali’s
income; (5) Wanis promised to make a will leaving the condo to
Basali “if she paid off the mortgage on the condominium”; and (6)
Basali paid off the condo’s mortgage using her settlement
proceeds, which the court noted was “arguably a community
asset” and the money from her family in Egypt, which was “her
separate property.” The probate court concluded Basali is
entitled to a 100 percent interest in the condo based on the
couple’s commingling of finances, the use of community and
Basali’s separate assets to make improvements and pay the
mortgage on the condo, and Wanis’s promise to leave the condo to
Basali in his will.
D. Mikhail’s Appeal and the Probate Court’s
Signed Order
On November 20, 2025, Mikhail filed a timely notice of
appeal. On December 19, 2025, the probate court issued a signed
order consistent with its November 4, 2025 statement of decision.
DISCUSSION
It is undisputed that Wanis died intestate. (See Prob.
Code, § 6110 [valid will requires two witness signatures].)
Generally, where a decedent dies intestate survived by a spouse
and siblings, the surviving spouse is entitled to 100 percent of
decedent’s share in their community property and 50 percent of
decedent’s separate property, with the remaining portion of
decedent’s separate property passing to decedent’s siblings.
(Prob. Code, §§ 6400, 6401, 6402.) Because property acquired
prior to marriage is separate property (Fam. Code, § 770, subd.
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(a)(1)), Mikhail argues that Basali is entitled to a 50 percent
interest in the condo, and he and his siblings are entitled to the
other 50 percent. The probate court granted Basali complete
ownership of the property based in part on the theory that Wanis
and Basali had a valid and enforceable contract wherein Wanis
promised to leave Basali the condo if Basali paid off the condo’s
mortgage. We agree with the probate court’s reasoning.
In California, contracts to make a will or a particular
testamentary disposition are valid and enforceable. (Estate of
Watson (1986) 177 Cal.App.3d 569, 573.) If made between 1984
and 1999, such a contract must be either in writing or expressly
referenced in a will. (Prob. Code, former § 150; see Prob. Code,
§ 21700, effective January 1, 2000.) However, an oral contract to
make a will may nonetheless be enforceable under the doctrine of
equitable estoppel. (Juran v. Epstein (1994) 23 Cal.App.4th 882,
897 (Juran); Estate of Housley (1997) 56 Cal.App.4th 342, 358
(Housley).) Specifically, an oral agreement to make a will is
enforceable where the promisee has detrimentally relied on the
promise, and failure to enforce the promise would result in
unconscionable injury. (Housley, at p. 351.) Detrimental reliance
occurs where the promisor “induce[s] the promisee to make a
serious change of position in reliance on the oral agreement.”
(Ibid.; see, e.g., Byrne v. Laura (1997) 52 Cal.App.4th 1054, 1069
(Byrne) [wife detrimentally relied on husband’s promise to
bequeath property to her “by moving in with him, performing the
duties of a spouse, and retiring from her job at his insistence”];
Juran, at p. 892–893 [wife detrimentally relied on husband’s
promise not to revoke his will by “refrain[ing] from changing her
will and d[ying] believing her husband would carry out his
promise”].)
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Recognizing that “the temptation is strong for those who
are so inclined to fabricate evidence” of an oral agreement to
make a will, the Supreme Court has held that the party seeking
to enforce such an agreement bears the burden of proving its
existence by clear and convincing evidence. (Notten v. Mensing
(1935) 3 Cal.2d 469, 477.) Whether the doctrine of equitable
estoppel applies is a question of fact (Byrne, supra, 52
Cal.App.4th at p. 1068), which we review for substantial evidence
(Horstmann v. Sheldon (1962) 202 Cal.App.2d 184, 187). In light
of the clear and convincing standard of proof, our task on appeal
is to determine whether the record contains substantial evidence
from which a reasonable factfinder could find it “highly probable
that the fact was true.” (Conservatorship of O.B. (2020) 9 Cal.5th
989, 996.) Further, the doctrine of implied findings dictates that
we “infer the trial court made every implied factual finding
necessary to uphold its decision, even on issues not addressed in
the statement of decision” and assess “whether substantial
evidence supports the implied factual findings.” (State Bar of
California v. Statile (2008) 168 Cal.App.4th 650, 673.)
Here, the record contains substantial evidence from which
the probate court could conclude it was highly probable that
Wanis promised to leave the condo to Basali in exchange for
Basali paying off the mortgage. Basali testified that Wanis told
her he would write a will leaving “everything” to her if she paid
off the mortgage. Her testimony is substantiated by Wanis’s
efforts to create a will leaving everything to Basali and
contemporaneous bank records showing the mortgage was paid
off around the time of the agreement. There is also sufficient
evidence to support an implied finding of detrimental reliance:
Basali used settlement funds she received from an injury at work
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and money received from her family abroad to pay off the
mortgage, with the understanding that Wanis would leave the
condo to her in exchange for her doing so. She thereafter
invested time, energy, and thousands of dollars of community
funds into renovating the property over a period of several years.
Finally, there is sufficient evidence to support a finding that
failure to enforce the oral contract would result in unconscionable
injury to Basali—the loss of both her monetary investment and
the home she shared with her now-deceased husband for nearly
three decades. We turn to Mikhail’s efforts to impugn the
evidence.
First, Mikhail argues that Basali did not satisfy her burden
of proving by clear and convincing evidence that she paid off the
mortgage using her sole and separate property because, in prior
petitions, she at times characterized the funds she used to pay off
the mortgage as community property and at other times
characterized it as separate property. Basali’s burden was not to
prove that she used her sole and separate assets to pay off the
mortgage; her burden was to prove that she and Wanis had a
valid and enforceable agreement and that she satisfied her
obligations under that agreement. The probate court found that
Basali and Wanis agreed Basali would pay off the mortgage using
her settlement proceeds and the money she received from her
family, and that she fulfilled her end of the agreement.
Inconsistencies in how Basali characterized the legal
classification of those assets in her prior petitions do not
undermine the probate court’s well-supported factual finding.
Second, Mikhail argues that if Wanis and Basali had an
enforceable contract, Basali was required to bring an action
against Wanis’s estate for breach of contract and a constructive
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trust. Mikhail is correct that generally, the appropriate
procedure for enforcing an oral contract to make a will is an
action against the estate, and the appropriate remedy is
“imposing a constructive trust on property which the promisor
left to others in violation of the contract, a remedy known as
quasi-specific performance.” (In re Marriage of Edwards (1995)
38 Cal.App.4th 456, 460.) But here, Wanis died intestate, and
Basali, who is the personal representative of Wanis’s estate, filed
a petition pursuant to Probate Code section 850—a statute that
permits the personal representative of an estate to seek an order
determining the ownership of property “[w]here the decedent
while living binds himself . . . by a contract in writing to convey
real property . . . upon or after his . . . death and the contract is
one which can be specifically enforced.” (Prob. Code, § 850, subd.
(a)(2)(B).) Because Wanis did not bequeath the condo to someone
else in a will, a constructive trust was not necessary to convey the
property from the devisee to Basali. Probate Code section 850
empowered the probate court to specifically enforce the
agreement and grant Basali full ownership of the condo.1
Third, Mikhail argues that Basali is not entitled to specific
performance of the agreement because her remedy at law is not
inadequate. He claims that she “at most, is entitled to
reimbursement of the $36,227.02” she used to pay off the
mortgage. Reimbursement of the money Basali used to pay off
the mortgage 28 years ago would not put Basali in the position
she would be in had the agreement been fully performed. (See
1 Although section 850 requires a contract to convey real
property be in writing, the equitable estoppel principles
explained above apply in equal force to section 850’s writing
requirement.
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Pay Less Drug Stores v. Bechdolt (1979) 92 Cal.App.3d 496, 501
[money damages seek to “put[] the injured party in as good a
position as he would have occupied, had the contract been fully
performed by the defendant”].) Because the agreement involved
the conveyance of a unique piece of real property—specifically,
the home Basali and Wanis shared for many years—money
damages are inadequate, and specific performance is appropriate.
(See Glynn v. Marquette (1984) 152 Cal.App.3d 277, 280 [“Specific
performance is given in land sale contracts because it is assumed
every piece of property is unique and that the buyer’s remedy by
way of damages is inadequate”]; accord, Civ. Code, § 3387.)
Fourth and finally, Mikhail argues the probate court
improperly considered Basali’s exhibit 8 (consisting of the first
page of the unwitnessed will leaving Wanis’s property to Basali
and a second page that appears to reflect Wanis’s signature)
because the will is a forgery Basali constructed by attaching a
signature page to it from a different document (the will that did
not identify heirs). Importantly, the probate court did not admit
exhibit 8; what the court admitted was Mikhail’s exhibit that
included both wills. At most, the court considered the two wills
cumulatively, along with the testimony of Basali, to reach its
decision that Wanis “executed” a will leaving the condo to Basali
without following the necessary “formalities.” Mikhail’s concern
that the probate court considered a forged will is not well taken.
In any event, apart from the written wills, the probate court’s
finding regarding the existence of an oral agreement is supported
by substantial evidence as set forth previously. (See Evid. Code,
§ 411 [the testimony of one witness is sufficient to establish a
fact].).
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DISPOSITION
The order is affirmed. Each party is to bear their own costs
on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
KUMAR, J.*
We concur:
BAKER, Acting P. J.
KIM (D.), J.
* Retired Judge of the Superior Court of Los Angeles
County, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
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