## Facts

- Gladys Mildred Lensch died in a nursing home on March 12, 2008, at 2:30 a.m.
- Gladys left a holographic will directing that her estate be “equally divided” between her daughter, Claudia, and her son, Jay; the will referenced grandchildren only in precatory language.
- Jay was found dead at his home later on March 12, 2008, from a self-inflicted shotgun wound.
- Jay’s death certificate listed his time of death as 1:15 p.m., corresponding to the time his body was discovered; no autopsy was performed, and his body was cremated.
- Evidence in the record suggested Jay may have died before he was found, possibly substantially earlier than the stated time.
- Jay’s will left his residuary estate to charities and did not leave property to his sons, Jason and Ean.
- Jason and Ean petitioned under Probate Code §§ 220, 21109, and 21110 for a determination that it could not be proven by clear and convincing evidence that Jay survived Gladys, which would deem Jay to have predeceased Gladys and potentially allow them to take his share by substitution.
- The probate court denied the petition without a full evidentiary hearing, relying primarily on the death certificate to find Jay survived Gladys and thus inherited under Gladys’s will.

## Issues

1. Whether the probate court erred by deciding the survivorship question under Probate Code §§ 220 and 21109 without an evidentiary hearing.
2. Whether the death certificate and existing written record were sufficient to support a finding, under the applicable standard, that Jay survived Gladys, thereby defeating any potential anti-lapse substitution under § 21110.

## Decision

- The Court of Appeal reversed the probate court’s order.
- The court held the probate court should have conducted an evidentiary hearing on survivorship.
- The matter was remanded for further proceedings, including an evidentiary hearing to develop the factual record relevant to survivorship and distribution.

## Legal Principles

- Determinations of survivorship under Probate Code §§ 220 and 21109 are fact-intensive and may require discovery and expert testimony when the time of death is uncertain or disputed.
- A death certificate may constitute prima facie evidence of stated facts, but it is not conclusive and may be rebutted by competent evidence, particularly where the recorded “time of death” reflects discovery time rather than a medically determined time.
- When survivorship cannot be established by the required evidentiary standard, the transferee may be deemed to have predeceased the transferor under §§ 220 and 21109, which can trigger anti-lapse substitution for the transferee’s issue under § 21110 unless the instrument shows a contrary intent.
- Precatory language expressing a hope that devisees will provide for others does not create a direct bequest absent operative donative terms.

## Conclusion

The Court of Appeal required an evidentiary hearing because the order of deaths was dispositive and could not be reliably resolved from the death certificate alone on the existing record; it reversed and remanded for fact-finding necessary to apply the survivorship and anti-lapse statutes.


Estate of Lensch, 177 Cal. App. 4th 667 (Cal. Ct. App. 2009)