Filed 8/8/23 Estate of Blackburn CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Estate of LINDA JEAN BLACKBURN, 

Deceased.

GARY BRACKEN,

 Petitioner and Appellant,

v.

CAROL CLAYMAN et al.,

 Contestants and Respondents.

 G061044

 (Super. Ct. No. 30-2019-01097062)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Aaron 

W. Heisler, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Alan S. Yockelson for Petitioner and Appellant.

Magee & Adler and Eric R. Adler for Contestant and Respondent Carol 

Clayman.

Madden, Jones, Cole & Johnson and Montgomery Cole for Contestant and 

Respondent Patricia Jean Leue.
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INTRODUCTION

Under Probate Code section 6100.5, subdivision (a)1, a testatrix is not 

considered mentally competent to make a will if she lacks “sufficient mental capacity to” 

understand what she is doing, know the scope of her property, or know who her living 

descendants are. In this case, a disinherited brother of the testatrix brought a contest 

challenging her mental capacity to make her will. Essentially, he sought to convince the 

trial court his sister did not know or understand her husband had died. The trial court was 

not persuaded by the brother’s armchair diagnosis, and we affirm its order denying his

contest and admitting his sister’s will to probate.

FACTS

 Linda and Greg Blackburn were married for over 40 years, and according 

to many accounts, were metaphorically joined at the hip until Greg’s death on June 13, 

2019. The two never had any children, and Linda’s parents predeceased her. 

Linda’s sole sibling was appellant Gary Bracken, who would have been her 

heir if she had died intestate. In recent years, and in June 2019 itself, the two had been 

involved in an acrimonious dispute in and out of court concerning their mother, Marjorie, 

and her estate. Given their deteriorating relationship, Linda met with an attorney, Denae 

Oatey, after Greg’s death in order to remove Gary as a beneficiary of her will. The 

resulting document was executed on June 18, 2019. In it, Linda – in a most peculiar twist 

– named Greg as her executor and left the residue of her estate to him if he were to 

survive her . . . even though he had died five days prior. However, the will also named 

successor executors to replace Greg in the event of his death – Linda’s old friend, 

respondent Carol Clayman, and Linda’s cousin, respondent Patricia Jean Leue. Linda

also named contingent beneficiaries in place of Greg; of course, Gary was not one of 

them. 

1

All further statutory references are to the Probate Code unless otherwise indicated.
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Linda herself passed away not long after executing the new will, on or 

about August 23, 2019. Her successor executors, Carol and Patricia, through their 

retained counsel, filed a petition in September 2019 to admit the June will to probate. 

Gary filed a contest of will and objections in October, contending the inclusion of Greg in 

the June will was prima facie evidence of Linda’s lack of mental capacity. 

The petition for probate and the will contest were tried in one proceeding to 

the court beginning in May 2021 and ending in late August the same year. On October 

18, 2021, the court issued a final statement of decision denying Gary’s will contest and 

approving in part Carol and Patricia’s petition for probate. Gary now appeals.

DISCUSSION

Gary raises four main arguments on appeal. First, by admitting Linda’s 

will to probate, he claims the trial court, contrary to applicable law, annulled only a part 

of the will: the part purporting to make Greg the executor and primary beneficiary of her 

estate. Second, Gary feels he established a prima facie case that Linda lacked mental 

capacity and the trial court should have required Carol and Patricia to rebut that case. 

Third, he does not think the trial court’s findings regarding Linda’s mental capacity were 

supported by substantial evidence. Finally, he finds fault with the trial court for allowing 

Carol and Patricia to reopen their case in chief to present the testimony of subscribing 

witnesses regarding the execution of the will. What lies beneath each of these arguments 

is the fallacy that Linda’s inclusion of Greg in her will, and her contemporaneous 

reticence about his death overall, established that she lacked mental capacity. They did 

not. Having reached the preceding conclusion, we must reject Gary’s arguments.

I. Sufficiency of the Evidence on Mental Capacity

In the recent case of Eyford v. Nord (2021) 62 Cal.App.5th 112 (Eyford), 

the First District Court of Appeal, Division Three, effectively summarized the will 

contestant’s burden in a case such as this: “Section 6100.5(a)(2) provides that ‘[a]n 

individual is not mentally competent to make a will if, at the time of making the will, . . .
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[¶] . . . [¶] . . . [t]he individual suffers from a mental health disorder with symptoms 

including delusions or hallucinations, which delusions or hallucinations result in the 

individual’s devising property in a way that, except for the existence of the delusions or 

hallucinations, the individual would not have done.’ [¶] In this context, a delusion ‘has 

been defined to be the conception of a disordered mind which imagines facts to exist of 

which there is no evidence and the belief in which is adhered to against all evidence and 

argument to the contrary, and which cannot be accounted for on any reasonable 

hypothesis. “One cannot be said to act under an insane delusion if his condition of mind 

results from a belief or inference, however irrational or unfounded, drawn from facts 

which are shown to exist.”’ (Estate of Putnam (1934) 1 Cal.2d 162, 172.) ‘If there is any 

evidence, however slight or inconclusive, which might have a tendency to create a belief, 

such belief is not a delusion.’ (Estate of Alegria (1948) 87 Cal.App.2d 645, 655.) [¶]

‘Capricious and arbitrary likes, dislikes and mistrusts are not evidence of unsoundness of 

mind.’ (Ibid.) ‘Care must be taken to differentiate between mere unreasonable opinions 

and mental derangements. Testamentary capacity does not depend upon the testatrix’ 

ability to reason logically or upon her freedom from prejudice. A belief may be illogical 

or preposterous, but it is not, therefore, evidence of insanity.’ (Estate of Perkins (1925) 

195 Cal. 699, 708 (Perkins).) [¶] ‘The presumption is always that a person is sane, and 

the burden is always upon the contestants of the will to show affirmatively, and by a 

preponderance of the evidence, that the testatrix was of unsound mind at the time of the 

execution of the will.’ (Perkins, supra, 195 Cal. at p. 703.) ‘[T]he standard for 

testamentary capacity is exceptionally low.’ (In re Marriage of Greenway (2013) 217 

Cal.App.4th 628, 642.) ‘A person challenging the validity of a trust instrument on the 

grounds that the trustor lacked capacity to execute the document . . . carries the heavy 

burden of proving such allegations.’ (Doolittle v. Exchange Bank (2015) 241 

Cal.App.4th 529, 545.)” (Eyford, supra, 62 Cal.App.5th at p. 122.)
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The evidence presented at trial was not sufficient to meet this heavy burden. 

First, we do not find the inclusion of Greg in the will to be smoking-gun evidence of 

Linda’s incapacity. Including him does not presuppose a belief on Linda’s part that her 

husband was still alive. Linda did not name Greg as the sole executor or beneficiary of 

her will. She provided for successor executors and contingent beneficiaries. Was it odd 

that she referred to him in the present tense? Of course. But Greg had only passed away 

a few days before she executed the will. It is not surprising she might find it difficult to 

accept his absence. Grief does not a delusion make. At least not necessarily.

Gary also points to two letters Linda wrote by hand in the weeks following 

execution of the will. One letter dated June 30, 2019, to Carol and Ralph Clayman is 

signed on behalf of Greg and Linda and uses the word “we” throughout. The letter 

laments the couple cannot join the Claymans in Las Vegas due to bronchitis. Carol 

testified Linda had not told her that Greg had died in June. 

The second letter to her aunt and uncle, Caryl and Jerry Block, is dated July 

17, 2019. It also uses the pronoun “we” and is signed “Greg and Linda” and provides 

instructions on how the Blackburns wished their bequest to the Blocks to be apportioned 

amongst the family. 

According to Gary, these letters coupled with Greg’s inclusion in the will 

are “unequivocal” evidence that Linda thought Greg was still alive when she executed the 

June will and there is no evidence to support “an alternative explanation.” We disagree. 

There was a document, handwritten by Linda, with a date of July 5, 2019, in which Linda 

states: “Greg passed away to Heaven on June 13, 2019.”2 Why would Linda write such a 

thing if she thought Greg was still alive?

Perhaps even more compelling to us is the timing of the will. Why, of all 

times, would Linda have sought to change her estate plan on June 18, 2019? Linda told 

2

Gary’s counsel made numerous objections to admission of this document, but all objections were 

overruled by the trial court, and the evidentiary rulings below are not being appealed.
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Ms. Oatey in their initial meeting that she was doing it because she wanted to remove 

Gary as a beneficiary. Ms. Oatey testified she was unaware during June 2019 meetings 

with Linda that Greg was actually deceased. But Linda gave her a copy of Greg’s will. 

And Ms. Oatey testified she had no concerns about Linda’s capacity. 

So Linda moved to disinherit Gary in June 2019. But she and Gary had not 

spoken since August 2015. They had been involved, as Gary himself testified, in 

litigation over their mother’s estate since October 2016. They had not been on speaking 

terms for years. What prompted Linda to choose this particular time to take concrete 

action to exclude Gary as a natural object of her bounty? To us, the only logical 

explanation was she knew Greg had just died and she was the only one left with 

testamentary control over the estate she and her husband had. 

The fact she might not have been ready to break the news of his passing to 

the Claymans so soon after his death is not compelling, especially in light of the fact she 

kept many of the couple’s friends in the dark about it. Nor is the fact that in discussing 

the apportionment of the community estate with her aunt and uncle she would use the 

plural pronoun to express the desires she and her husband had shared. Thus, we conclude 

the evidence supports capacity.3

Having established that, we can dispose of Gary’s other arguments.

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In this vein, we must also address Gary’s concern about the following comment made by the trial 

court in its statement of decision regarding the expert testimony presented by Carol and Patricia: “Proponents’ 

expert witness offered testimony consistent with and supportive of the court’s findings and conclusions. Contestant 

offered a rebuttal expert who pointed out alleged weaknesses in the Proponents’ expert’s preparation in forming his 

opinions. Because the court finds the lay witness testimony and exhibits inadequate to meet Contestant’s burden of 

proving the Decedent’s lacked capacity, and Contestant offered no expert evidence in support of his position, the 

court need not decide whether the Proponents’ expert’s testimony would be sufficient to establish that the Decedent 

had the requisite capacity to make and execute the 2019 Will.” Gary argues the trial court erred by not weighing his 

rebuttal expert’s opinion against the proponents’ expert opinion. We disagree; the trial court was correct to 

determine the expert testimony was not determinative. Gary had not met his burden to establish lack of capacity. 

His expert rendered no such opinion. Thus, there was no need to consider an expert opinion supporting capacity. 

Of course, had Gary presented an expert to render an opinion on lack of capacity, it would have been a different 

ballgame, and the trial court clearly recognized this.
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II. Partial Annulment of the Will

This argument is posited on the well-established principle that a testator 

lacking in mental capacity to devise one aspect of her will has “no more capacity to do so 

as to another[.]” (Estate of Dolbeer (1906) 149 Cal. 227, 246.) Consequently, “a will 

may not be probated as to part and annulled as to part[.]” (Estate of Straisinger (1967) 

247 Cal.App.2d 574, 585.) The evidence was insufficient to show lack of mental 

capacity, so there was no basis to annul the will in whole or in part. 

In any event, the trial court did not “annul” any part of the will. The will

was admitted to probate, and it can be administered pursuant to its written provisions for 

successor executors and contingent beneficiaries.

III. The Parties’ Respective Burdens and Reopening of the Executors’ 

Case-in-Chief

Given Gary’s failure to meet his burden as to his sister’s lack of capacity, 

we necessarily disagree with his claim that the burden should have shifted to respondents 

to show capacity. But we must also address Gary’s concerns regarding the trial court’s 

allowance of subscribing witness testimony to prove due execution of the will.

After respondents had completed their case-in-chief, Gary’s counsel moved 

for judgment pursuant to Code of Civil Procedure section 631.8.4 Counsel claimed the 

respondents had failed to carry their burden to show due execution of the will. Under 

section 8252, a will’s proponents have the burden to show the will was duly executed, 

and the contestants have the burden to show lack of capacity. (Id., subd. (a).) The trial 

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Subdivision (a) of this provision states in pertinent part as follows: “After a party has completed 

his presentation of evidence in a trial by the court, the other party, without waiving his right to offer evidence in 

support of his defense or in rebuttal in the event the motion is not granted, may move for a judgment. The court as 

trier of the facts shall weigh the evidence and may render a judgment in favor of the moving party, in which case the 

court shall make a statement of decision as provided in Sections 632 and 634, or may decline to render any judgment 

until the close of all the evidence. The court may consider all evidence received, provided, however, that the party 

against whom the motion for judgment has been made shall have had an opportunity to present additional evidence 

to rebut evidence received during the presentation of evidence deemed by the presenting party to have been adverse 

to him, and to rehabilitate the testimony of a witness whose credibility has been attacked by the moving party.”
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court agreed but noted due execution was never raised in pretrial briefing as a 

controverted issue. The parties had stipulated that Linda had signed the will. Therefore, 

the court allowed respondents to re-open their case-in-chief to call Ms. Oatey and Laura 

Busch, an employee at Ms. Oatey’s firm, as witnesses to testify as to Linda’s execution of 

the will. On appeal, Gary contends this was an abuse of discretion. He is wrong. 

A trial court always has the power to control its processes “so as to make 

them conform to law and justice.” (See Code Civ. Proc., § 128, subd. (a)(8).) At the 

very beginning of trial, the trial court indicated the matter of the will contest would be 

heard first, followed by the petition for probate. During initial procedural discussions, 

the court asked whether there was any dispute that Gary had the burden and would 

present his evidence first. Gary’s counsel pointed out that respondents would have the 

burden of proof on their own petition, but his understanding was the court was going to 

defer on the probate petition until after the will contest was decided. He sought 

clarification on what the court planned to do. This was the court’s response:

“THE COURT: My thinking was this, but I am open to any discussion that 

you all would like to have on it. My understanding is that the only objection to the 

petition for probate is the will challenge. So in the event that the court hears all of the 

evidence on the will contest, for which, I believe, the contestant bears the burden. [¶] If 

the court denies the will contest, then it would seem appropriate as part of that denial to 

then approve the petition for probate of that will. In the event that the court finds the 

contestant has met his burden, and I grant the will contest, then I suspect there may be 

further amendment or proceedings that would be necessary before a petition for 

appointment of a personal representative could be concluded.” Gary’s counsel agreed 

with this approach, and never expressed any expectation that respondents would need to 

produce witnesses to show due execution of the will. 

Indeed, in the parties’ joint trial statement, the authenticity of the will and 

Linda’s signing of it were both stipulated facts. Thus, respondents were rightly under the 
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impression that due execution was a stipulated issue. But once Gary’s counsel made his 

motion for judgment after the close of respondents’ case, they realized he was not 

stipulating the issue. It was only fair for the trial court to give them an opportunity to 

present the necessary witnesses rather than enter judgment on what it called a “hypertechnicality.” We think this a commendable approach for the trial court to take.

DISPOSITION

The judgment is affirmed in all respects. Respondents to recover their costs 

on appeal.

BEDSWORTH, J.

WE CONCUR:

O’LEARY, P.J.

GOETHALS, J.