Filed 1/19/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

Estate of KIRK KERKORIAN,

Deceased.

 B283132

 (Los Angeles County

 Super. Ct. No. BP164011)

UNA DAVIS,

 Petitioner and Appellant,

v.

ANTHONY MANDEKIC, as 

Executor, etc., et al.,

Objectors and Respondents.

APPEAL from an order of the Superior Court of Los 

Angeles County, Maria E. Stratton, Judge. Affirmed.

Sall Spencer Callas & Krueger, Robert K. Sall, Michael A. 

Sall; Bentler Mulder, Robin S. Bentler; Deily Law Firm, John P. 

Deily, James C. Harvey, and Brendan J. Coughlin, for Petitioner 

and Appellant.
2

Glaser Weil Fink Howard Avchen & Shapiro, G. Jill 

Basinger, Elizabeth G. Chilton, and David Zarmi, for Objector 

and Respondent Anthony Mandekic.
3

Probate Code section 11704 requires an executor to obtain 

court permission before taking sides in a proceeding to determine

who is entitled to a distribution of estate assets. We are asked to 

decide whether the probate court complied with the statute’s 

requirements when it allowed the executor of Kirk Kerkorian’s 

(Kerkorian’s) estate to oppose a petition filed by Kerkorian’s 

former wife seeking a third of her late husband’s assets.

I. BACKGROUND

Kerkorian executed a will in July 2013 to govern the 

distribution of his substantial assets upon his death. On March 

30, 2014, Kerkorian married petitioner and appellant Una Davis 

(petitioner). 

Two days before the wedding, Kerkorian gave objector and 

respondent Anthony Mandekic (Mandekic) $10 million with 

written instructions to give the money to petitioner upon their 

marriage “as a transfer from [Kerkorian] to [petitioner] outside of 

[Kerkorian’s] estate and . . . in place of any transfer to 

[petitioner] that [Kerkorian] might make upon [his] death.” The 

day before the wedding, petitioner signed a “Waiver of Marital 

Rights” (the waiver) in which she relinquished any right to 

receive assets of Kerkorian’s estate through intestate succession, 

under Kerkorian’s will, or as an omitted spouse pursuant to 

statute. Mandekic then transferred $10 million to petitioner as 

directed, and petitioner and Kerkorian separated roughly two 

months later. 

Kerkorian died just over a year thereafter, in June 2015. 

His will was admitted to probate, and Mandekic was qualified to 

serve as executor of the estate. The July 2013 will is not part of 

the record on appeal, but it is undisputed the will (1) does not 
4

mention petitioner, (2) provides approximately $40 million in 

specific bequests to several individuals, including Mandekic

(whose bequest has already been distributed), and (3) gives the 

remainder of Kerkorian’s estate, valued at approximately $2 

billion, to unidentified charitable organizations to be selected by 

a committee appointed in the will. 

Pursuant to Probate Code section 11700,1 petitioner 

petitioned the probate court for an order determining her right to 

a distribution of Kerkorian’s estate as an omitted spouse.2

Petitioner’s second amended petition alleges Kerkorian’s $10 

million gift to her, and her execution of the waiver, did not 

preclude her from being treated as an omitted spouse because the 

relevant documents were not signed by both petitioner and 

Kerkorian, as required; petitioner did not voluntarily sign the 

waiver; Kerkorian (who was in his 90’s at the time) lacked 

 

1 Undesignated statutory references that follow are to the 

Probate Code. 

2 Section 11700 provides that after the court issues letters of 

administration and before it orders final distribution of an estate, 

“any person claiming to be a beneficiary or otherwise entitled to 

distribution of a share of the estate[ ] may file a petition for a 

court determination of the persons entitled to distribution of the 

decedent’s estate.” A “decedent’s surviving spouse who married 

the decedent after the execution of all of the decedent’s 

testamentary instruments . . . shall receive a share in the

decedent’s estate” as an “omitted spouse” unless it is shown the 

decedent intentionally omitted the spouse from the testamentary 

instruments or the spouse waived a right to participate in the 

estate. (§§ 21610, 21611.) Petitioner contends she is entitled to 

one-third of Kerkorian’s estate as an omitted spouse. 
5

capacity and was subject to undue influence; petitioner did not 

receive adequate disclosure of Kerkorian’s property and financial 

obligations before signing the waiver; and petitioner was not 

represented by independent legal counsel. 

Mandekic sought court approval, pursuant to section 

11704, subdivision (b),3“to oppose [petitioner’s] Omitted Spouse 

Petition.” Mandekic asserted there was good cause to grant such 

approval because he was “responsible for implementing what he

kn[e]w[ ] to be the testamentary wishes of [Kerkorian], . . . there 

[were] no named charitable beneficiaries available to defend

[Kerkorian’s] estate plan, . . . [Mandekic] ha[d] no remaining 

personal interest in the [e]state, and . . . the burden of opposing 

[petitioner’s] petition should not be borne by the people of the 

[S]tate of California.” Mandekic informed the probate court that 

if he “were directed to refrain from litigating the Omitted Spouse 

Petition, he would still remain involved in the litigation as a

witness, and in his role as the Executor.” 

The Attorney General, who was deemed to be a person 

entitled to distribution of Kerkorian’s estate for probate purposes 

(because Kerkorian’s will provided for a devise to unidentified 

charitable beneficiaries), supported Mandekic’s request to oppose 

the omitted spouse petition. The Attorney General reasoned 

Mandekic was “in a unique position to defend . . . Kerkorian’s 

estate plan, as he [wa]s most familiar with [Kerkorian], his 

[e]state, and his estate plans.” 

 

3 This statute, which we discuss in detail post, permits a 

“personal representative [to] petition the court for authorization 

to participate, as necessary to assist the court, in [a] proceeding 

[under section 11700].” (§ 11704, subd. (b)(1).)
6

Petitioner objected to Mandekic’s request to oppose her 

petition. She contended his participation was unnecessary 

because the Attorney General was both obligated and able to 

represent the only interests adverse to her petition―those of the 

unidentified charitable beneficiaries. Petitioner acknowledged 

Mandekic could provide relevant witness testimony in the

proceeding, but she contended he had not shown good cause to 

oppose her petition as a litigant because the Attorney General

already had a statutory duty to represent the unidentified

charities and legislative history materials for section 11704 

indicated an executor’s participation in heirship proceedings

should be “the exception rather than the rule.”4

The probate court granted Mandekic’s request to oppose 

petitioner’s omitted spouse petition. The court reasoned “[t]he 

legislative history of Probate Code section 11704(b)(2) does not 

prevent a personal representative from participating in heirship 

proceedings. It just requires prior court approval, upon a 

showing of good cause.” The court expressly found such good 

cause existed, giving the following reasons: (1) Mandekic’s 

“familiarity with [Kerkorian’s] financial and personal affairs 

[placed him] in a unique position to best advocate for what 

[Kerkorian’s] intentions were with respect to the omission of 

[petitioner] from the will”; (2) Mandekic had no financial interest 

in Kerkorian’s estate, having already received a cash distribution 

not challenged by petitioner; (3) Mandekic was “not otherwise 

improperly motivated to participate in the proceedings at the 

 

4 At petitioner’s request, the probate court took judicial 

notice of legislative committee analyses of the 2013 bill that 

amended section 11704 to read as it currently does. 
7

estate’s expense”; (4) it would “waste resources to 

require . . . Mandekic to educate the Attorney General on the 

facts underlying this litigation and then have the Attorney

General conduct the litigation, all at the expense of either the 

State of California or the estate”; and (5) allowing Mandekic to 

participate as a party would “result in a speedier conclusion of 

the estate proceeding and speedier distribution of assets to the 

beneficiaries, whomever they may turn out to be.” The court

additionally believed “[Mandekic]’s participation [would] be 

helpful in determining the rightful beneficiaries of the estate in 

accordance with [Kerkorian’s] intent.” 

II. DISCUSSION

Petitioner contends the probate court misapplied section 

11704, subdivision (b) by conducting only part of the analysis it

requires. She complains the court allowed Mandekic to oppose 

her petition based merely on its determination of “good cause,” 

and without evaluating what she sees as a separate showing that 

must be made under the statute, namely, whether Mandekic’s 

participation as a party was “necessary to assist the court.” 

(§ 11704, subd. (b)(2).) Petitioner also contends that even if the 

court applied the correct legal standard in finding only good 

cause, the good cause finding was an abuse of the court’s 

discretion. 

Petitioner is wrong on both counts. A probate court’s good 

cause finding necessarily subsumes its determination of the 

assistance that will be necessary because a court cannot 

appropriately assess whether good cause exists to allow an 

executor to participate in an action without some notion of what 

form that participation will take. Section 11704’s use of the word 
8

“necessary” must be read in context, and as courts have long 

recognized, it often carries—as it does here—a meaning more 

akin to “useful” rather than “indispensable.” The probate court 

expressly found good cause to permit Mandekic to participate in 

the action as he proposed, namely, as a litigant opposing 

petitioner’s motion to obtain one-third of Kerkorian’s estate, and 

that good cause determination was well within the court’s broad 

discretion. 

A. Statutory Standards Governing an Executor’s 

Participation in Section 11700 Proceedings for 

Distribution of Estate Assets

It was once “generally recognized that executors and 

administrators acting in their representative capacities are 

indifferent persons as between the real parties in interest and 

consequently cannot litigate the conflicting claims of heirs or 

legatees at the expense of the estate.” (Estate of Kessler (1948) 32 

Cal.2d 367, 369.) In 1976, however, the Legislature amended 

former Probate Code section 1081 “to create a narrow exception 

to the long-standing general rule barring a personal 

representative from participating in an heirship proceeding.” 

(Sen. Com. on Judiciary, Analysis of Assem. Bill No. 1160 (2013-

2014 Reg. Sess.) as amended June 3, 2013, p. 4 (Sen. Judiciary 

Com. Analysis).) Former section 1081 permitted an 

administrator or executor, “[u]pon prior order of the court,” to 

“file objections to [a] petition [for distribution of estate assets], 

and [to] participate in the proceedings as a party in order to 

assist the court in its determination.” (Stats. 1976, ch. 620, § 1.) 

The Legislature repealed former section 1081 in 1988. 

(Stats. 1988, ch. 1199, § 56.5.) In its place, the Legislature 
9

enacted former section 11704, subdivision (b) in 1990, which 

provided that a “personal representative may file papers and 

otherwise participate in a proceeding [to determine persons 

entitled to distribution of estate assets] as a party to assist the 

court.” (Former § 11704, subd. (b), added by Stats. 1990, ch. 79, 

§ 14.) In other words, when it enacted former section 11704, 

subdivision (b) in the place of former section 1081, the 

Legislature deleted the court order requirement. The 

explanation given for the change at the time was that “[t]here is 

nothing so unique about the determination made in such a 

proceeding that requires rules that differ from the general rules 

of civil practice that govern all other probate procedures, or that 

precludes the court from making the determination.” 

(Recommendation Relating to Distribution and Discharge (Dec. 

1987) 19 Cal. Law Revision Com. Rep. (1987) p. 958.)

In 2011, the Court of Appeal decided Estate of Bartsch

(2011) 193 Cal.App.4th 885 (Bartsch), in which a decedent’s 

executor―who was also an heir to the decedent’s estate―opposed 

a petition by the decedent’s son to be treated as an omitted child. 

The Bartsch court acknowledged the general rule requiring 

impartiality by personal representatives but concluded the plain 

language of former section 11704 (as enacted in 1990 following 

the repeal of former section 1081) did not require impartiality. 

(Id. at p. 896.) The court held the statute “necessarily implie[d] 

the right [of a personal representative] to advocate either for or 

against an heirship petition.” (Id. at p. 895.) Based on its 

conclusion former section 11704 entitled the executor to litigate 

against the son, the Bartsch court upheld an interim award of 

attorney fees and costs incurred by the executor in opposing the 

son’s petition. (Id. at pp. 888, 901.) 
10

In 2013, the Legislature amended former section 11704, 

subdivision (b) to reinstate the court order requirement.5 The 

statute now provides, in pertinent part:

“(b)(1) The personal representative may petition the court 

for authorization to participate, as necessary to assist the court, 

in [a] proceeding [for a determination of persons entitled to 

distribution of estate assets]. . . . [¶] (2) The court may grant or 

deny this petition, in whole or in part, on the pleadings, without 

an evidentiary hearing or further discovery. A petition filed 

pursuant to this subdivision may be granted only upon a showing 

of good cause. The court shall determine the manner and 

capacity in which the personal representative may provide 

assistance in the proceeding. The court may direct the personal 

representative to file papers as a party to the proceeding, or to 

take other specified action, if deemed by the court to be necessary 

to assist the court.” (§ 11704, subd. (b) [as amended by Stats. 

2013, ch. 84, § 1].)

B. Standard of Review

As petitioner acknowledges, we review the probate court’s 

good cause finding under section 11704, subdivision (b) for abuse 

of discretion. (See Laboratory Specialists Internat., Inc. v. 

Shimadzu Scientific Instruments, Inc. (2017) 17 Cal.App.5th 755, 

763 [“deferential good cause standard commits the applicable 

 

5 Legislative history materials indicate the proposed changes 

were made in reaction to the Bartsch decision. (See, e.g., Assem. 

Com. on Judiciary, Analysis of Assem. Bill No. 1160 (2013-2014 

Reg. Sess.) as amended Mar. 20, 2013, p. 2 (Assem. Judiciary 

Com. Analysis); Sen. Judiciary Com. Analysis, supra, at p. 5.) 
11

decision ‘“almost entirely in the discretion of the court below, and 

appellate tribunals will rarely interfere, and never unless it 

clearly appears that there has been a plain abuse of discretion”’”]; 

Laraway v. Sutro & Co. (2002) 96 Cal.App.4th 266, 273

(Laraway) [“[d]eterminations of good cause are generally matters 

within the trial court’s discretion”]; cf. Department of 

Corporations v. Superior Court (2007) 153 Cal.App.4th 916, 933 

[determination whether act is “‘necessary or appropriate’” 

depends on “discretionary application” of decision-maker’s 

“judgment and expertise”].) 

The scope of a court’s discretion is “derived from the 

common law or statutes under which discretion is conferred.” 

(City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1298 

(Drew); see also Sargon Enterprises, Inc. v. University of Southern 

California (2012) 55 Cal.4th 747, 773 [discretion “must be 

exercised within the confines of the applicable legal principles”].) 

We consider “whether the grounds given by the court for its 

[decision] are consistent with the substantive law of section 

[11704] and, if so, whether their application to the facts of this 

case is within the range of discretion conferred upon trial courts 

under section [11704], read in light of the purposes and policy of 

the statute.” (Drew, supra, at p. 1298.)

Insofar as our review requires us to interpret section 

11704, we do so de novo, “seeking, as always, to ascertain the 

Legislature’s intent so as to give effect to the law’s purpose. 

[Citation.] We begin with the statute’s plain language, as the 

words the Legislature chose to enact are the most reliable 

indicator of its intent,” and we turn to other sources for 

assistance, including legislative history, only if the text fails to 

clearly manifest the Legislature’s purpose. (In re Corrine W.
12

(2009) 45 Cal.4th 522, 529; see also John v. Superior Court (2016) 

63 Cal.4th 91, 95-96.)

C. The Probate Court Did Not Abuse Its Discretion in 

Granting Mandekic’s Request to Oppose the Omitted 

Spouse Petition

1. The court applied the correct legal standard: 

good cause

Petitioner’s primary contention is that the probate court 

“abused its discretion as a matter of law by applying the wrong 

legal standard.” The contention fails because it is premised on an 

incorrect understanding of what section 11704, subdivision (b) 

requires.

The process described in section 11704, subdivision (b)

provides an executor with the opportunity, at the outset, to 

identify for the probate court the manner in which he or she 

proposes to participate in probate proceedings. Specifically, the 

statute provides that an executor (i.e., a “personal 

representative”) may “petition the court for authorization to 

participate, as necessary to assist the court, in [a] proceeding 

[commenced under section 11700].” (§ 11704, subd. (b)(1).) 

Mandekic availed himself of that opportunity when filing his 

section 11704 petition, informing the court he believed he should 

be authorized to oppose petitioner’s omitted spouse petition as a 

litigant. 

The Legislature sensibly provided executors with this

opportunity at the outset because section 11704, subdivision (b) 

states “[a] petition filed pursuant to this subdivision may be 

granted only upon a showing of good cause.” (§ 11704, subd. 

(b)(2).) Both conceptually and practically, a court cannot
13

evaluate whether good cause exists to grant a petition to 

participate in probate proceedings without an understanding of

what form the executor’s participation will take. What might 

constitute good cause for one type of participation, for instance,

might not constitute good cause to participate in a different 

manner, e.g., by “fil[ing] papers as a party to the proceeding.” 

(§ 11704, subd. (b)(2).) The text of section 11704, subdivision (b) 

recognizes this interdependence, i.e., that a good cause finding 

incorporates a contemplated level of necessary assistance, by 

obligating courts to “determine the manner and capacity in which 

the personal representative may provide assistance in the 

proceeding” (§ 11704, subd. (b)(2)) when finding good cause 

exists. 

In its order granting Mandekic’s petition to oppose 

petitioner’s requested relief in the probate proceedings, the 

probate court did not include language expressly deeming such 

opposition “necessary to assist the court” (§ 11704, subd. (b)(2)). 

Petitioner believes this is an indication the court allowed

Mandekic to file papers as a party to the proceeding regardless of 

whether that level of participation was “necessary,” but petitioner

is doubly mistaken.

First, for reasons just described, an express statement of 

necessity was unnecessary because the court expressly made a 

finding of good cause to grant Mandekic’s section 11704 petition. 

In that petition, Mandekic asked to participate in the proceedings 

as a party opponent, and the probate court’s order found good 

cause on the understanding that would be the form of Mandekic’s 
14

participation.6 The court was not obligated to make any further

express finding for purposes of spelling out the linkage between 

its good cause finding and its determination of the “manner and 

capacity in which [Mandekic] may provide assistance in the 

proceeding,” i.e., the participation necessary to assist the court. 

(§ 11704, subd. (b)(2); see also In re Julian R. (2009) 47 Cal.4th 

487, 498-499; Peake v. Underwood (2014) 227 Cal.App.4th 428, 

447 [“Absent an indication to the contrary, we are required to 

presume a court was aware of, and followed, the applicable law 

and considered all the relevant facts and arguments”].)

Second, petitioner’s argument fails even on its own terms 

because courts have long recognized a legislative body’s use of the 

word “necessary” must be understood in context. (Armour & Co. 

v. Wantock (1944) 323 U.S. 126, 129-130 [rejecting argument that 

 

6 Contrary to petitioner’s suggestion that the probate court 

did not “consider[ ] whether any lesser degree of participation by 

[Mandekic] was appropriate,” the record demonstrates the court 

was well aware of its discretion to allow Mandekic to participate 

in a lesser capacity than as a party. At the hearing on 

Mandekic’s request to participate as a party, petitioner stated 

section 11704 gave the court “the ability to define the level of 

involvement of the executor” in her omitted spouse proceeding, to 

which the court responded, “[t]hat’s what I’m asking you to do for 

me.” Petitioner argued Mandekic “should be limited to providing 

forthright testimony,” and the court asked Mandekic why he 

should not be restricted to participating solely “as a witness.” 

Mandekic responded he was in the best position to “protect Mr. 

Kerkorian’s testamentary intentions,” the cost of enforcing 

Kerkorian’s wishes should be borne by his estate rather than the 

public, and it would be less efficient for the Attorney General to 

litigate the matter. 
15

“would give an unwarranted rigidity to the application of the 

word ‘necessary,’ which has always been recognized as a word to 

be harmonized with its context”]; San Francisco Fire Fighters 

Local 798 v. City and County of San Francisco (2006) 38 Cal.4th 

653, 671-672 (Fire Fighters); People v. Belous (1969) 71 Cal.2d 

954, 961 [citing Westphal v. Westphal (1932) 122 Cal.App. 379 for 

the proposition that “[t]he courts have recognized that 

‘“necessary” has not a fixed meaning, but is flexible and 

relative’”].) This has been clear from even the earliest days of the 

republic, as Justice John Marshall observed in McCulloch v. 

Maryland (1819) 17 U.S. 316: “Does [‘necessary’] always import 

an absolute physical necessity, so strong, that one thing to which 

another may be termed necessary, cannot exist without that 

other? We think it does not. If reference be had to its use, in the 

common affairs of the world, or in approved authors, we find that 

it frequently imports no more than that one thing is convenient, 

or useful, or essential to another.” (Id. at p. 413; accord, Fire 

Fighters, supra, at p. 674.)

The context surrounding section 11704, subdivision (b)’s 

use of the word “necessary” leaves us convinced the Legislature 

used it in its “useful” or “appropriate” sense, and not as a 

freestanding requirement satisfied only by a showing of 

indispensability. In each instance the statute employs the word,

it does so in terms that tie the requisite necessity to the probate 

court’s own judgment: “The personal representative may petition 

the court for authorization to participate, as necessary to assist 

the court, in the proceeding. . . . [¶] The court may direct the 

personal representative to file papers as a party to the 

proceeding, or to take other specified action, if deemed by the 

court to be necessary to assist the court.” (§ 11704, subd. (b)(1), (2) 
16

(emphasis added).) Other language in the statute reinforces the 

same point, that necessity is measured by what the court believes 

would be of assistance. (§ 11704, subd. (b)(2) [“The court shall 

determine the manner and capacity in which the personal 

representative may provide assistance in the proceeding”].) By 

committing the determination of what assistance is necessary to 

the court that will be the recipient of that assistance, we believe 

the Legislature intended to give probate judges wide latitude in 

deciding the assistance they believe to be necessary in a given 

proceeding. That latitude is a positive grant of discretion and 

entirely inconsistent with petitioner’s understanding of the 

meaning of “necessary,” one that would operate instead as a 

restrictive constraint on probate court discretion. In other words, 

once a probate court finds good cause based on a contemplated 

level of participation in the proceedings, the “necessary to assist 

the court” language in the statute requires no more and is 

thereby satisfied. 

The probate court here found good cause, and in doing so it 

accordingly applied the correct legal standard in evaluating 

Mandekic’s section 11704 petition.

2. The good cause determination was not an abuse 

of discretion on this record

Petitioner maintains that even if the probate court did not 

abuse its discretion by applying the wrong legal standard, it still 

abused its discretion by relying on considerations insufficient to 

constitute good cause. We hold to the contrary. Considering 

both general decisional authority and the statute’s legislative 

history, the probate court’s good cause finding did not exceed the 

bounds of reason. (Goodman v. Lozano (2010) 47 Cal.4th 1327, 
17

1339 [“‘“The appropriate test for abuse of discretion is whether 

the trial court exceeded the bounds of reason”’”]; see also City of 

Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 92 [relying 

on legislative history and case law to support the court’s 

interpretation of “good cause,” which was “otherwise clear from 

the statutory language”].) 

Section 11704 does not define “good cause,” nor does any 

case law address its meaning as used in that statute. But good 

cause as a standard “is relative and depends on all the 

circumstances.” (Laraway, supra, 96 Cal.App.4th at p. 274; see 

also ibid. [“[i]n determining the meaning of ‘good cause’ in a 

particular context, the courts utilize common sense based upon 

the totality of the circumstances,” which “include[s] the purpose 

of the statutory scheme”].) A determination of good cause 

“‘should not be enshrined in legal formulism; [rather,] it calls for 

a factual exposition of a reasonable ground for the sought order.’” 

(People v. Accredited Surety Casualty Co. (2014) 230 Cal.App.4th 

548, 559 (Accredited Surety), quoting Waters v. Superior Court

(1962) 58 Cal.2d 885, 893.) “As a general rule, . . . ‘good cause’ 

includes reasons that are fair, honest, in good faith, not trivial, 

arbitrary, capricious, or pretextual, and reasonably related to 

legitimate needs, goals, and purposes.” (Laraway, supra, at p. 

274.)

Here, the totality of the probate court’s reasons underlying

its good cause determination, read in context of section 11704’s

purpose, manifests no abuse of discretion. Mandekic’s unusually 

high degree of personal familiarity with the matters relevant to 
18

petitioner’s proceeding,7combined with his lack of self-interest in 

the distribution of the estate, supports the probate court’s 

determination good cause was shown.8 Indeed, these 

considerations provide solid grounds for the probate court’s belief 

that Mandekic’s participation as a party would facilitate “a 

speedier conclusion of [petitioner’s] estate proceeding and 

speedier distribution of assets to the beneficiaries”—and a 

quicker resolution of the proceedings furthers important public 

policy goals in probate cases. (Estate of Heller (1992) 7 

Cal.App.4th 862, 867 [describing particular Probate Code statute 

as “reflect[ing] strong public policy in favor of the prompt closing 

and distribution of estates”]; Estate of Taylor (1967) 66 Cal.2d 

855, 858 [“established policy favor[s] prompt distribution of 

estates”].)

 

7 Mandekic had worked with Kerkorian for more than 40 

years. 

8 Self-interest appears to have been the Legislature’s 

foremost concern with allowing representatives to participate in 

proceedings to determine distribution of estate assets. (See, e.g., 

Sen. Judiciary Com. Analysis, supra, at pp. 2, 5 [former section 

1081 “allowed the court to determine whether the personal 

representative was requesting to participate in the proceeding as 

an impartial party or whether the personal representative 

desired to participate to protect his or her own interests in the 

estate”; reinstating former section 1081’s court order requirement 

would “arguably restore fairness to the distribution proceeding by 

allowing the interested parties the ability to challenge a selfinterested personal representative’s participation in the 

proceeding prior to the court’s order”].) 
19

Petitioner nevertheless protests that permitting 

participation predicated on an executor’s mere familiarity with 

the decedent’s testamentary wishes will result in “the exception 

swallowing the rule” against executor participation. But nothing 

in the statute’s text or legislative history suggests an executor’s 

personal knowledge is irrelevant to good cause, and there is no 

reason to think that what the probate court reasonably 

characterized as Mandekic’s “unique” position in this case (given 

the unusual size of the estate and the extent of Mandekic’s

familiarity with Kerkorian’s personal and financial affairs) will 

invariably be true for other executors whenever the Attorney 

General is called to represent the interests of unidentified 

charitable beneficiaries.9 

The probate court’s reasons for finding good cause are also 

“reasonably related to legitimate needs, goals, and purposes” 

(Laraway, supra, 96 Cal.App.4th at p. 274). It is true, as

petitioner asserts, that legislative committees contemplated 

section 11704, as now amended, would allow executors to 

 

9 Petitioner’s contention that the probate court’s order allows 

the Attorney General to “delegate its statutory obligations” to 

Mandekic in contravention of section 11703 is unconvincing. 

Section 11703 gives the Attorney General a right, but not 

necessarily the sole obligation, to represent the interests of 

undesignated charitable beneficiaries. (§ 11703 [“The Attorney 

General shall be deemed to be a person entitled to distribution of 

the estate . . .”], emphasis added.) Furthermore, the Attorney 

General did not express an intention to remove himself entirely 

from the proceedings in this case. Rather, he indicated a desire 

that Mandekic assume the “primary” role with his office

remaining involved and “step[ping] in,” if necessary. 
20

participate in proceedings on behalf of beneficiaries unable to 

represent their own interests. (See, e.g., Sen. Judiciary Com. 

Analysis, supra, at pp. 5-6 [as amended, section 11704 would 

enable executors, with the court’s permission, to challenge a 

petition for distribution of estate assets on behalf of beneficiaries 

unable to protect their own interests on account of “distance, 

unfamiliarity with the California court system, or the financial 

inability to litigate the matter”].) But nothing in the text of the 

statute or the legislative materials presented suffices to 

demonstrate a legislative intent to limit “good cause” to only 

those circumstances. (See People v. Cruz (1996) 13 Cal.4th 764, 

784 [where there was no indication the Legislature considered a 

statutory interpretation proposed by the appellant, the reviewing 

court “expressed reluctance to draw conclusions concerning 

legislative intent from legislative silence or inaction”].) To the 

contrary, the very implementation of a flexible “good cause” 

standard implies the Legislature desired courts to have 

substantial leeway to determine when an executor’s participation 

would be appropriate. (Cf. Sen. Judiciary Com. Analysis, supra, 

at p. 4 [statute not intended to “prohibit or impede personal 

representative participation in heirship proceedings where―and 

to the extent that―such participation is necessary, beneficial, and 

actually does ‘assist the court,’” but rather “provides the court 

with the authority and discretion to decide how and under what 

circumstances assistance to the court can and should be provided 

by the personal representative, while still protecting the estate”].)

Petitioner’s argument that allowing estate funds to be used 

in favor of one beneficiary over another violates the purpose of 

section 11704 is also unfounded. Legislative committees 

considering the bill that most recently amended section 11704 
21

were particularly troubled with the prospect of an executor using

estate funds for his or her own personal benefit. (See, e.g., Sen. 

Judiciary Com. Analysis, supra, at p. 5 [statute intended to keep 

“personal representative[s] [from] participat[ing] for sole personal 

gain at the expense of other beneficiaries of the estate”]; Assem. 

Judiciary Com. Analysis, supra, at p. 1 [statute intended to 

“eliminate[ ] the unfair advantage now afforded to improperly 

motivated personal representatives who [under former section 

11704] can use estate funds to finance proceedings for their own 

benefit”]; see also fn. 8, ante.) That, of course, is not the situation 

here because Mandekic has already received, without objection, 

his limited bequest under Kerkorian’s will.10

While the legislative history materials also show concern 

about giving “an unfair advantage” to one beneficiary over 

another, that concern is expressed in the context of discussing 

self-interested personal representatives. (See, e.g., Assem. 

Judiciary Com. Analysis, supra, at p. 2 [describing Bartsch as

allowing “a personal representative, who was also a beneficiary of 

 

10 The probate court also considered whether Mandekic’s 

participation, though not in his financial self-interest, was an 

otherwise “improperly motivated” attempt to “abus[e] the system” 

(Sen. Judiciary Com. Analysis, supra, at p. 5). The probate court 

found there was no such improper motivation in this case, and 

that finding is supported by the record. (See Accredited Surety, 

supra, 230 Cal.App.4th at pp. 555, 560 & fn. 9 [a party’s “good 

faith” is an element of a “good cause” determination that requires

a “factual inquiry,” and “when there are factual disputes, the trial 

court’s findings of fact will be upheld under the abuse of 

discretion standard when those findings are supported by 

substantial evidence”].)
22

the will, to participate as a party . . . with the estate bearing the 

personal representative’s costs” and stating the bill author’s view 

that that rule “gives a personal representative who is also a 

beneficiary of the estate an unfair advantage over the other 

beneficiaries because the personal representative will be able to 

litigate for his or her own benefit, with the estate picking up the 

tab and depleting funds available for the other beneficiaries”].) 

The fact that section 11704 was expressly intended to allow 

executors to represent the interests of non-appearing 

beneficiaries―which would occur at the expense of the 

estate―shows the Legislature understood the statute would allow 

estate funds to be used, at least in some cases, to promote the 

interests of one beneficiary over another.

Section 11704, in other words, does not mandate neutrality

or prohibit an executor from advocating in favor of one 

beneficiary over another. Rather, it entrusts probate courts with 

policing whether and to what extent participation in probate 

proceedings should be permitted in light of the dangers of selfinterested involvement and other factors relevant to good cause. 

The probate court properly discharged this statutory 

responsibility in permitting Mandekic to oppose the omitted 

spouse petition in this case.
23

DISPOSITION

The order granting Mandekic’s petition is affirmed, and 

Mandekic is entitled to recover his costs on appeal.

CERTIFIED FOR PUBLICATION

BAKER, J.

We concur:

KRIEGLER, Acting P.J.

RAPHAEL, J.

 



Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.