## Facts

- Taruk Joseph Ben-Ali held title to an apartment building transferred to him by his father, Hassan Ben-Ali, who continued to manage the property and collect rents.
- Taruk married Wendelyn Wilburn in 2002 and died in 2004, but Hassan concealed the death for several years and allegedly forged Taruk’s signature on property-related documents.
- Hassan died in 2008; among his papers was a document purporting to be Taruk’s will.
- The document left personal property to Wilburn but left all other assets, including the apartment building, to Hassan, and named Hassan as executor.
- The purported will contained two witness signatures: one reading “Wendy Ben-Ali” and a second illegible signature; Wilburn denied signing the will and denied knowledge of its execution.
- Wilburn petitioned for letters of administration on the theory Taruk died intestate; D’Artagnan Lloyd (Taruk’s half-brother) petitioned to admit the will to probate; after Lloyd’s death, his widow Lisa Golde was substituted as respondent on appeal.
- After an evidentiary hearing, the probate court found Wilburn not credible, found her signature genuine, and treated the second signature as authentic based on the presence and placement of the signatures; it admitted the will to probate.

## Issues

1. Whether substantial evidence supported a finding that the purported will was duly executed under California law, including that it was attested by two subscribing witnesses.
2. Whether the probate court improperly inferred the genuineness and qualifying status of the second, illegible witness signature from its finding that Wilburn’s signature was genuine.
3. Whether the order admitting the will to probate rested on speculation rather than substantial evidence.

## Decision

- The Court of Appeal reversed the order admitting the purported will to probate.
- Assuming substantial evidence supported the finding that Wilburn’s signature was genuine, the record still lacked substantial evidence identifying the second witness or showing the second signature satisfied statutory attestation requirements.
- The probate court erred by effectively imputing authenticity to the illegible signature based on the genuineness of Wilburn’s signature and the document’s layout.
- Because due execution requires proof of two subscribing witnesses, the failure of proof on the second witness was dispositive.

## Legal Principles

- The proponent of a will bears the burden to prove due execution, including attestation by at least two witnesses who sign during the testator’s lifetime with an understanding that the instrument is the testator’s will.
- Due execution may be shown by circumstantial evidence, but factual findings must rest on substantial evidence, not conjecture.
- A court may not treat an unidentified, illegible signature as a qualifying witness signature solely because another witness signature is found genuine and both appear in a witness section.
- Suspicious surrounding circumstances may warrant careful scrutiny of the evidentiary basis for finding due execution, but the dispositive inquiry remains whether statutory execution requirements are proved by substantial evidence.

## Conclusion

The appellate court held that the will’s proponent failed to prove, by substantial evidence, that the document was attested by two subscribing witnesses as required for due execution, and it reversed the order admitting the will to probate because the probate court’s acceptance of the second, illegible signature rested on speculation rather than evidence.


Estate of Ben-Ali, 216 Cal. App. 4th 1026, 157 Cal. Rptr. 3d 353 (Ct. App. 2013)