Filed 10/27/20 Estate of Istrin CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

Estate of HERMAN ISTRIN, 

Deceased.

 B302631

 (Los Angeles County

 Super. Ct. No. 

16STPB06138)

JASON ISTRIN,

Contestant and Appellant,

v.

HAROLD ISTRIN, Individually 

and as Executor, etc.,

Objector and Respondent.

APPEAL from an order of the Superior Court of Los 

Angeles County, Brenda, J. Penny, Judge. Affirmed.

RMO, Scott E. Rahn, Sean D. Muntz, and Kevin W. Yang 

for Contestant and Appellant.
2

Oldman, Cooley, Sallus, Birnberg, Coleman & Gold, Marc 

L. Sallus, and Peta-Gay Gordon for Objector and Respondent.

_______________________________

Jason Istrin (Jason) appeals from an order entered after 

the probate court sustained without leave to amend Harold 

Istrin’s (Harold) demurrer to Jason’s Second Amended Petition to

Revoke Probate and denied the petition with prejudice. We 

affirm.

BACKGROUND

I. Preprobate Petitions and Will Contests

Decedent Herman Istrin (Herman) died on May 27, 2016. 

On November 15, 2016, Herman’s wife, Marta Istrin (Marta), 

filed a petition for probate of a will dated February 16, 2016. 

Under this purported will, appellant Jason, Herman’s grandson, 

was to take a one-time gift of $3 million, plus four “real estate 

properties in any state of the United States of America.” 

On February 21, 2017, respondent Harold, Herman’s son 

and Jason’s uncle, filed objections to Marta’s petition and a 

contest of the February 16, 2016 purported will Marta offered. 

The following day, on February 22, 2017, Harold filed a petition 

for probate of a will dated October 19, 1993, and two codicils 

dated April 25, 2015 and December 29, 2015 (the codicils). As set 

forth in the codicils, under the October 19, 1993 will, Jason was 

to take $600,000, which was to be transferred to a trust 

established for Jason’s benefit in the Istrin Family Trust dated 

October 19, 1993. 

On February 23, 2017, the probate court held a hearing on 

Marta’s petition. An attorney representing Jason appeared at 

the hearing and identified Jason as a petitioner, although Jason 

had not filed or joined a petition or contest in the present matter 
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regarding Herman’s will(s). Jason was a petitioner in a related 

matter before the probate court regarding the Istrin Family Trust

in which he offered a February 16, 2016 document—different 

from the February 16, 2016 document Marta offered as Herman’s 

will—purportedly expressing Herman’s intent to leave him $1 

million, plus four of Herman’s properties (or $2 million less than 

the amount he was to take under the purported will Marta 

offered). 

On March 16, 2017, Marta filed objections to Harold’s 

petition and a contest of the October 19, 1993 will and codicils 

Harold offered. Although Jason contended in the trust matter 

that he was entitled to more from Herman’s estate than the 

October 19, 1993 will and codicils provided, he did not file a will 

contest or join Marta’s contest. Nonetheless, he was represented 

by counsel at hearings in this matter regarding Marta’s and 

Harold’s petitions and will contests.

Marta litigated her will contest in the probate court for 

more than a year before she and Harold reached a settlement. At 

an April 30, 2018 hearing at which Jason’s counsel was present, 

the probate court granted Harold’s February 22, 2017 petition for 

probate of the October 19, 1993 will and codicils, pursuant to the 

settlement agreement between Marta and Harold. The court also 

appointed Harold as the personal representative of Herman’s

estate. Without objection from Jason’s counsel, the court 

admitted the October 19, 1993 will and codicils to probate, and 

the court denied with prejudice Marta’s objections to Harold’s 

petition and contest of the October 19, 1993 will and codicils and 

her petition for probate of the purported February 16, 2016 will, 

based on the settlement. At the same hearing, Jason’s counsel 
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informed the court that Jason would be filing a first amended 

petition in the trust matter. 

II. Jason’s Petitions to Revoke Probate

On June 1, 2018, about a month after the probate court 

admitted the October 19, 1993 will and codicils to probate, Jason 

filed a petition for probate of a February 16, 2016 will—the same 

document (or a version of the document) Jason had submitted to 

the probate court more than a year before in connection with his 

petition in the trust matter, as referenced above. 

On August 21, 2018, Jason filed a Petition to Revoke 

Probate. The probate court sustained with leave to amend 

Harold’s demurrers to this petition and Jason’s November 30, 

2018 Amended Petition to Revoke Probate. 

On February 11, 2019, Jason filed his Second Amended 

Petition to Revoke Probate—the pleading before us in this 

appeal. Therein, he stated he did not file a petition or will 

contest before the probate court admitted the October 19, 1993 

will and codicils to probate because Marta “had priority over 

[him], and as such, he did not file a competing petition or join 

Marta[’s] petition at that time.” He also alleged Herman 

“executed the February 16, 2016 will [Jason offered, as opposed to 

the different purported February 16, 2016 will Marta offered] as 

part of a single document which also contained modifications to 

decedent’s trust.” (Italics omitted.) 

Harold demurred to Jason’s Second Amended Petition to 

Revoke Probate, arguing, among other things, that the petition is 

barred by Probate Code1 section 8270, subdivision (a), which 

provides, in pertinent part: “Within 120 days after a will is 

1 Further statutory references are to the Probate Code.
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admitted to probate, any interested person, other than a party to 

a will contest and other than a person who had actual notice of a 

will contest in time to have joined the contest, may petition the 

court to revoke the probate of the will.” (Italics added.) Harold 

asserted, because Jason had actual notice of Marta’s contest of 

the October 19, 1993 will and codicils in time to have joined the 

contest, but he failed to join, he is barred under section 8270 as a 

matter of law from petitioning the probate court to revoke 

probate of the October 19, 1993 will and codicils. In opposition to 

the demurrer, Jason argued, among other things, that section 

8270 is not a bar to his petition to revoke probate because a “will 

contest” within the meaning of the statute implies a trial and a 

final judgment, which did not occur in this matter because Marta 

and Harold settled their petitions and will contests before a trial 

was held. 

At a May 2, 2019 hearing, the probate court sustained 

without leave to amend Harold’s demurrer to Jason’s Second 

Amended Petition to Revoke Probate and denied the petition with 

prejudice. Jason appealed.

At the time the parties filed their appellate briefs in this 

matter, Jason was continuing to pursue relief in the trust matter 

under the February 16, 2016 document he offered in both the 

trust matter and this matter. 

DISCUSSION

Jason contends the probate court erred in sustaining 

Harold’s demurrer and denying with prejudice his Second 

Amended Petition to Revoke Probate. In reviewing a trial court’s 

order sustaining a demurrer, “we examine the [petition] de novo.” 

(McCall v. PacifiCare of California (2001) 25 Cal.4th 412, 415.)
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As set forth above, section 8270, subdivision (a) bars a 

petition to revoke the probate of a will if the petitioner was a 

party to a will contest or “had actual notice of a will contest in 

time to have joined the contest.” Jason, who appeared through 

counsel in the proceedings regarding Marta’s will contest, clearly

had actual notice of Marta’s contest of the October 19, 1993 will 

and codicils more than a year before the probate court granted 

Harold’s petition for probate of the October 19, 1993 will and 

codicils, admitted the October 19, 1993 will and codicils to 

probate, and denied with prejudice Marta’s objections to and 

contest of the October 19, 1993 will and codicils, pursuant to the 

settlement between Marta and Harold. Jason did not join 

Marta’s contest or object to the probate court’s disposition of 

Marta’s and Harold’s petitions and will contests based on the 

settlement.

The only exceptions to section 8270, subdivision (a)’s bar on 

petitions to revoke the probate of a will, where the petitioner was 

a party to a will contest or had actual notice of a will contest in 

time to have joined the contest, apply to minors or persons who 

were “incompetent and had no guardian or conservator at the 

time a will was admitted to probate,” neither of which apply to 

Jason. (§ 8270, subd. (b).) Jason’s statement in his Second 

Amended Petition to Revoke Probate that Marta “had priority 

over [him], and as such, he did not file a competing petition or 

join Marta[’s] petition at that time” is not an exception to section 

8270, subdivision (a)’s bar, and Jason can cite no authority 

indicating otherwise. 

The language in section 8270, subdivision (a) barring 

petitions to revoke probate “ ‘was aimed exclusively at those who 

had full opportunity to contest before probate but preferred to be 
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dilatory, waiting to see what might happen and then filing their 

contests after probate if disappointed in the outcome of the first 

contest.’ ” (Estate of Moss (2012) 204 Cal.App.4th 521, 537 (Moss)

[interpreting language in section 8270, subdivision (a)], quoting 

Estate of Meyer (1953) 116 Cal.App.2d 498, 501 (Meyer) 

[interpreting language in section 8270’s statutory predecessor,

former section 380].) Jason argues he did not have a full 

opportunity to contest the October 19, 1993 will and codicils 

before they were admitted to probate, notwithstanding that 

Marta litigated her contest for more than a year, and Jason’s 

counsel participated in the proceedings with knowledge that 

Jason claimed he was entitled to more from Herman’s estate than 

the October 19, 1993 will and codicils provided. Jason bases his 

argument on his assertion that Marta’s contest of the October 19, 

1993 will and codicils was not a contest within the meaning of 

section 8270, subdivision (a) because it was resolved by a 

settlement rather than a trial. He relies on case law stating: 

“When the contest is dismissed before trial of the issues there 

ceases to be a contest; in other words, there has not been a 

determination of the issues. A ‘contest’ implies a trial and final 

judgment. The mere institution of a contest and dismissal 

without a trial is not a contest.” (Estate of Hoover (1934) 139 

Cal.App. 753, 760 (Hoover); Moss, at p. 536.) The cases on which 

Jason relies are factually distinguishable and demonstrate why 

his petition is barred under section 8270, subdivision (a).

In Hoover, supra, 139 Cal.App. 753, the petitioner filed a 

contest to the admission to probate of a will and codicils, but she 

voluntarily dismissed the contest without prejudice before a

hearing on the contest. After the will and codicils were admitted 

to probate, the same petitioner filed a petition for revocation of 
8

probate of the will and codicils. (Id. at p. 755.) The Court of 

Appeal concluded former section 380, section 8270’s statutory 

predecessor, prohibits “two successive trials of the same issues”

and was not a bar to the postprobate petition because the 

petitioner voluntarily dismissed her preprobate petition before 

trial and there had been no determination of the issues. (Hoover,

at pp. 759-760.) Here, in contrast, after more than a year of 

litigation, the probate court denied with prejudice Marta’s contest 

of the October 19, 1993 will and codicils and granted Harold’s 

petition for probate of the October 19, 1993 will and codicils, 

based on the settlement between Marta and Harold. There was a 

determination of the issues in Marta’s will contest—a contest of 

which Jason had actual notice in time to join before the probate 

court admitted the October 1993 will and codicils to probate.

In Meyer, supra, 116 Cal.App.2d 498, the Court of Appeal 

concluded former section 380 did not bar petitions for revocation 

of the probate of a will where the petitioners had actual notice of 

a preprobate contest of a will because they were witnesses at the 

trial of the will contest. The appellate court explained the 

petitioners did not know they were interested persons until an 

earlier will naming them as beneficiaries was introduced during 

the trial. (Id. at pp. 499-500.) The court held that, “although 

having actual notice of a preprobate contest, a person cannot be 

said to have had such notice in time to have joined in the contest

when he did not possess, expressly or impliedly, a knowledge of 

his right to contest as an interested person.” (Id. at pp. 501-502.) 

Here, in contrast, during the entire year that Marta litigated her 

contest of the October 19, 1993 will and codicils, Jason had 

knowledge of his right to contest the October 19, 1993 will and 

codicils, as a beneficiary of the purported February 16, 2016 will 
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Marta offered, as well as the February 16, 2016 document he 

submitted in the trust matter and now claims is Herman’s true 

will. Jason had actual notice of Marta’s will contest with ample 

time to have joined before the probate court denied the contest 

with prejudice based on the settlement.

Finally, in Moss, supra, 204 Cal.App.4th 521, the last of the 

three cases on which Jason relies, the probate court dismissed 

the appellant’s and others’ preprobate will contests and admitted 

a will to probate “under the apparent misconception that the 

contestants could simply file postprobate contests.” (Id. at p. 

540.) The Court of Appeal concluded section 8270, subdivision (a) 

does not bar a petition to revoke probate of a will where the 

probate court failed to consider preprobate contests and “in effect 

treated the preprobate contests as if [the] contestants had 

voluntarily dismissed their contests.” (Moss, at p. 540.) Like the 

appellate court in Hoover, supra, the appellate court in Moss

reasoned that a will contest that is voluntarily dismissed before a 

determination of issues is not a contest within the meaning of 

section 8270, subdivision (a). (Moss, at p. 540.) Here, in contrast, 

the probate court did not fail to consider Marta’s will contest, nor 

did Marta voluntarily dismiss her will contest without prejudice. 

The probate court denied Marta’s will contest with prejudice and 

granted Harold’s petition for probate of the October 19, 1993 will 

and codicils, based on the parties’ settlement. This constitutes a 

will contest within the meaning of section 8270, subdivision (a). 

It was finally determined; Marta could not come back and reopen 

her contest after it was denied with prejudice. Jason failed to 

join that will contest, and he is now barred by statute from 

petitioning to revoke probate.
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As explained in Moss, supra, 204 Cal.App.4th at page 537, 

section 8270, subdivision (a) was aimed at preventing the conduct 

Jason engaged in here. He “ ‘had full opportunity to contest 

before probate but preferred to be dilatory, waiting to see what 

might happen and then filing [his] contest[] after probate 

[because he was] disappointed in the outcome of the first

contest.’ ” (Moss, at p. 537.) He sat by and watched as Marta 

litigated her contest of the October 19, 1993 will and codicils for 

over a year, all the while knowing he was a beneficiary under the 

purported February 16, 2016 will Marta offered, as well as the 

February 16, 2016 document he submitted in the trust matter 

and now claims is Herman’s true will.2 He failed to object when 

the probate court denied Marta’s will contest with prejudice, 

granted Harold’s petition, and admitted the October 19, 1993 will 

and codicils to probate, based on the settlement. His petition to 

revoke probate is barred under section 8270, subdivision (a) as a 

matter of law because he had actual notice of Marta’s will contest 

in time to have joined the contest. Jason cannot amend his 

petition to plead around section 8270, subdivision (a)’s bar, and 

he does not suggest an amendment. Accordingly, the trial court 

did not err in sustaining without leave to amend Harold’s 

demurrer to Jason’s Second Amended Petition to Revoke Probate 

and denying the petition with prejudice.3

2 As set forth above, Jason stood to take more from 

Herman’s estate under the purported February 16, 2016 will 

Marta offered than from either the October 19, 1993 will and 

codicils or the February 16, 2016 document he now claims is 

Herman’s true will.

3 Because we conclude section 8270, subdivision (a) bars 

Jason’s Second Amended Petition to Revoke Probate as a matter 
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DISPOSITION

The order is affirmed. Respondent is entitled to recover 

costs on appeal.

NOT TO BE PUBLISHED

CHANEY, J.

We concur:

ROTHSCHILD, P. J.

SINANIAN, J.*

of law, we need not address the other grounds on which Harold 

argued the probate court could sustain the demurrer.

* Judge of the Superior Court, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.