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Filed 3/29/05


CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO



EVA LAUERMANN as Personal

Representative etc., et al.,


E036833
Petitioners,


(Super.Ct.No.
SPRSS04565)
v.


OPINION
THE SUPERIOR COURT OF THE

COUNTY OF SAN BERNARDINO,

Respondent;

ANUCHAR MUONGPRUAN et al.,


Real Parties in Interest.



ORIGINAL PROCEEDING; petition for writ of mandate. Frank Gafkowksi,
Judge. (Retired Judge of the L. A. Sup. Ct. assigned by Chief Justice pursuant to art. VI,
6 of the Cal. Const.) Petition granted.

Alexandra S. Ward and Ward & Ward for Petitioners.



1


No
appearance
for Respondent.

Philip M. Savage, IV and Gresham Savage Nolan & Tilden for Real Parties in
Interest.

In this case we are asked to determine the meaning of the term "duplicate original"
as used in Probate Code section 6124.1 We hold that the term does not include a
photocopy not personally executed by the testator and witnesses. Accordingly, the
presumption that the testator destroyed his will with the intent to revoke it will apply at
the trial of the matter.

Although the procedural history of the case is somewhat complicated, the
significant facts may be briefly stated.2 Decedent, Werner (or Warner) Lauermann, was
survived by neither spouse nor issue. In 1987 he executed a will leaving certain




1 All subsequent statutory references are to the Probate Code unless otherwise
specified.


2 Petitioners point out that real parties did not file a formal return, and therefore
ask that we deem all factual allegations in the petition to be unrefuted and established in
favor of petitioners. It is, of course, true that a failure to deny pleaded allegations
generally results in an admission of the fact alleged. (See 5 Witkin, Cal. Procedure (4th
ed. 1997) Pleading, 977-979, pp. 438-440.) However, in this case we expressly
offered real parties the option of relying on their informal opposition in lieu of filing a
formal return. We will not penalize a party for taking advantage of our efforts to
streamline appellate litigation. Accordingly, we decline the request.

That said, there do not appear to be significant disputed facts relevant to the
narrow issue before this court.


2


described real property to real parties in interest Ranu Muongpruan and her children.3
However, the original of this will could not be found following his death. What was
found, apparently among decedent's possessions, was a photocopy of the will. It bore no
indication of intent to revoke; that is, there were no revocatory notations, crossings-out,
or other defacement of the copy. (See 6121: "burned, torn, cancelled, obliterated, or
destroyed. . . .")

Real party Anuchar Muongpruan petitioned to have the will admitted to probate
and for letters of administration with will annexed. This petition was opposed by
decedent's sister, Gerda Lauermann, and Eva Lauermann, who now appears in the
capacity of personal representative of the estate of decedent's brother, Gerhard.4 They
duly filed a will contest that was set for trial or hearing when the current petition was
filed and we stayed proceedings pending decision in this matter.

Section 6124 provides that, "If the testator's will was last in the testator's
possession, the testator was competent until death, and neither the will nor a duplicate
original of the will can be found after the testator's death, it is presumed that the testator
destroyed the will with intent to revoke it. This presumption is a presumption affecting


3 The will did not dispose of any residuary estate. Although it expressly indicated
decedent's wish not to bequeath anything to any former spouse, it did not specifically
mention Gerda Lauermann or her brother. The will does contain a general in terrorem
clause.


4 Gerhard presumably survived decedent, but has since died.

3


the burden of producing evidence."5 In proceedings on the issue, real parties persuaded
the trial court that the photocopy of the will qualified as a "duplicate original" so that the
presumption would not apply. However, the trial court indicated that the issue was one
appropriate for immediate resolution by an appellate court.6 We agreed, and issued an
order to show cause on the petition filed by Gerda Lauermann and Eva Lauermann.
DISCUSSION

As both sides agree, in construing the statutory term "duplicate original" we are to
consider the language itself, the purpose of the statute, and common sense and justice.
(Halbert's Lumber, Inc. v. Lucky Stores, Inc. (1992) 6 Cal.App.4th 1233, 1238-1239.)7
We begin with the language.

"Original," in the context before us, is defined as "a primary manuscript from
which copies are made." (Webster's 3d New Internat. Dict. (1993) p. 1591.) A
duplicate, of course, is simply a copy, so that "duplicate original" may seem to be an
oxymoron. However, it need not be so. Section 6121, for example, clearly contemplates


5 It appears to be undisputed that the first two conditions set out in the statute were
satisfied in this case.


6 Code of Civil Procedure section 166.1 provides in part that "a judge may
indicate in any interlocutory order a belief that there is a controlling question of law as to
which there are substantial grounds for difference of opinion, appellate resolution of
which may materially advance the conclusion of the litigation." The intent is evidently to
encourage the appellate court to review the issue on the merits if the losing party files a
petition for extraordinary relief.


7 The court actually refers to an examination of legislative history as the second
step. However, the purpose of such an examination is to determine the intention of the
[footnote continued on next page]

4


that there may be more than one "original" will when it provides that, "A will executed in
duplicate . . . is revoked if one of the duplicates is burned, torn, canceled, obliterated, or
destroyed, with the intent . . . of revoking it. . . ." It is also clear that "[t]here is no reason
why a testator may not execute two valid wills with identical provisions to insure the
execution of his wishes should one of them be accidentally lost or destroyed." (Estate of
Janes (1941) 18 Cal.2d 512, 516, italics added.)

Section 6121 uses the phrase "will executed in duplicate" while section 6124
covers the situation in which "neither the will nor a duplicate original of the will can be
found. . . ." The former phrase obviously means that the testator has physically signed
two separate copies of his will, each of which has also been witnessed and signed by the
witnesses. The question is whether "duplicate original" in section 6124 carries the same
meaning.

Real parties argue that the difference in phrasing represents a conscious intention
on the part of the Legislature to distinguish between two situations, and that section 6124
applies to a duplicate created, photographically or otherwise, from a single personally
executed and witnessed will. They rely on Tracy A. v. Superior Court (2004) 117
Cal.App.4th 1309, 1317 (Tracy A.), which does refer to "a photocopy or other duplicate
original of [a] document." (Italics added.) However, this language cannot fairly be used
to support the result desired by real parties. In Tracy A., the court was interpreting

[footnote continued from previous page]
Legislature and the purpose of the statute. (See Korea Supply Co. v. Lockheed Martin
Corp. (2003) 29 Cal.4th 1134, 1146-1147.)

5


section 1513, subdivision (d), which provides that the report of a guardianship
investigator "is confidential and shall only be made available to persons who have been
served in the proceedings. . . . The clerk of the court shall make provisions for the
limitation of the report exclusively to persons entitled to its receipt." The trial court had a
practice of permitting parents--to whom the report had to be "available" (see 1511)--
only to examine it and make longhand notes or copies. The holding of the court was that
such persons were entitled to "receive" the report physically and permanently, and the
language upon which real parties rely merely expresses the court's recognition that
because the original could not reasonably be provided, a photocopy would suffice.

It is one thing to say that when a party is entitled to a document for informational
purposes, a photocopy is sufficient as a "duplicate original." It is quite another to assert
that a photocopy may be effective as an original in a context where the law requires that a
physical document, to be legally operative, must be personally signed and witnessed in a
particular manner. For this reason, we find Tracy A. not helpful or persuasive.

Turning now to the intent and purpose of section 6124, "The stringent
requirements for proof of lost or destroyed wills are imposed to avoid fraud." (Estate of
Janes, supra, 18 Cal.2d at p. 518.) It is plainly in support of this purpose that section
6124 creates a presumption of revocation where a will known or believed to have been

6


executed cannot be found.8 By contrast, if a testator has personally executed duplicate
originals, there is little likelihood of fraud when one copy is available for probate even if
the second cannot be found. Although it is true that the intentional destruction by the
testator of any copy of a "will executed in duplicate" operates as a revocation ( 6121), as
the Law Revision Commission recognized, a testator who has left an executed copy of his
will with, for example, his attorney (or in a safe deposit box) may be less careful to
preserve the copy in his personal possession. (See Cal. Law Revision Com. com., 53
West's Ann. Prob. Code (1991 ed.) foll. 6124, p. 289.) In addition, it is likely that a
testator who has executed two or more "duplicate originals" would make an effort to
destroy all such copies if he or she wishes to revoke the will.

On the other hand, the existence of mere photocopies, in our view, does not
suggest that the testator might feel less need to keep track of the original of his or her
will. Photocopies are easily made and in common understanding are readily
distinguished from an "original." A testator may make several photocopies of his or her
will, perhaps to send to relatives or other beneficiaries, or to retain for the purpose of
drafting possible changes. It would be unreasonable to expect a testator to track down
and destroy all such copies before giving effect to his intended revocation. Thus, the rule
urged by real parties in order to carry out a supposed testamentary intent might just as


8 It is as well to note that the statute clarifies that the presumption is one affecting
only the burden of producing evidence rather than the burden of proof. It may therefore
be rebutted by evidence showing that it is "equally probable" that the will was destroyed
inadvertently or without the intent to revoke it. (Estate of Bristol (1943) 23 Cal.2d 221,
224-225; Estate of Obernolte (1979) 91 Cal.App.3d 124, 129.)

7


well have the pernicious effect of preserving the validity of a will which the testator had
done everything in his power to revoke.

Furthermore, not only are photocopies ubiquitous, but the simplicity of their
creation stands in stark contrast to the considerable formalities surrounding the execution
of a will.9 Given the importance placed upon the creation and execution of an original
will, we do not think that a reasonable testator would believe that a photocopy would be
legally effective in place of the original document, and realize that all such copies must
be destroyed before a revocation became effective.

Real parties urge that their construction is consistent with logic and justice because
there is no reason why decedent would have preserved the photocopy if he intended to
revoke his will, and its preservation suggests continued satisfaction with his testamentary
arrangements. For the reasons above, we reject the argument. In the absence of a true
original, the preservation of a photocopy is simply not of sufficient significance to permit
the drawing of such an inference.

We therefore hold that the trial court erred in ruling that "duplicate original," as
used in section 6124, includes a photocopy not personally signed by the testator and the


9 We think we can say without fear of contradiction that decisions concerning who
will get one's property upon one's death are some of the most difficult and sobering
imaginable. The drafting and execution of a will typically involves attorneys; the testator
must make it clear in front of witnesses that he or she understands and intends that the
document is in fact a will. The witnesses are generally required to confirm the testator's
competence, freedom from undue influence, and testamentary intent. (See 6110,
8220-8221.)

8


witnesses. The phrase is not legally distinguishable from "a will executed in duplicate."
Accordingly, the presumption of revocation will apply.

Let a peremptory writ of mandate issue as prayed. Petitioner to recover her costs.
CERTIFIED FOR PUBLICATION
/s/ King

Acting
P.
J.


We concur:


/s/ McKinster

J.

/s/ Gaut

J.


9

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