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Brothers Fight in Court When Mother’s Will Fails to Name an Executor

A key element of a well-drafted last will and testament is the appointment of an executor to manage the affairs of your estate. If you fail to name an executor, or the person or persons you name are unable to serve, a probate court must intervene and appoint a person to run your estate based on the provisions of California law. This can lead to prolonged litigation between interested who may compete for the right to manage your estate.

A recent California appeals case highlights the dangers of failing to name an executor in your will. This case is discussed here purely for informational purposes and should not be treated as legal advice or a binding statement of California law. The facts are unique to this case.

Estelle Manwill died in March 2011. Shortly before her death she executed a holographic (hand-written) will in the presence of several witnesses. The will divided Manwill’s real property among her five children. Unfortunately, Manwill failed to name an executor in her will. Two of her sons, David G. Manwill and Mark Manwill, each filed petitions to be named personal representative of their mother’s estate. (In this context, executor and personal representative both refer to a person who manages an estate, with the former referring to a person specifically named in a last will and testament.) Their siblings objected.

Under California law, each of the children had equal priority to claim appointment as personal representative. Since the children could not agree on whether David or Mark Manwill should serve, the probate court named a professional fiduciary to temporarily serve as special administrator for the estate. The brothers continued to fight one another, and the special administrator, in probate court on various issues related to their mother’s estate.

David G. Manwill became ill during the course of the litigation. He signed a power of attorney naming his son, David J. Manwill, as agent. David J. Manwill then purported to act on his father’s behalf in probate court. The court rejected this effort, as a “power of attorney” does not confer upon a non-lawyer the authority to act as an attorney-at-law.

A Second Death Further Complicates Matters
In June 2012, the probate court upheld Estelle Manwill’s will over Mark Manwill’s continuing objections. He appealed the probate court’s decision to the 1st District Court of Appeal in San Francisco. Shortly thereafter, David G. Manwill died. The probate court then named Mark Manwill as administrator of his mother’s estate, as there was no longer a competing petition from his now-deceased brother.

David J. Manwill continued to pursue the appeal, purportedly in his father’s name. The appeals court rejected this for the same reason as the probate court-a power of attorney does not confer upon the agent the right to represent someone in a judicial proceeding. Since David G. Manwill had died, only the executor or administrator of his estate could maintain such a claim. David J. Manwill was not the executor of his father’s estate, nor was he an interested person in his grandmother’s estate, as her will only named her children as beneficiaries.

Had Estelle Manwill named an executor in her will in the first place, much of this subsequent litigation could have been avoided. In making a will, it’s important you make your intentions clear. Don’t rely on your children or other families to figure things out for themselves after you’re gone. If you’d like to speak with an experienced San Diego estate planning attorney about preparing a proper will, contact the Law Office of Scott C. Soady today at 1-877-435-7411.

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