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Date: 01-22-2018

Case Style:

Estate of Kirk Kerkorian, Deceased - Una Davis v. Anthony Mandekic, as Executor, etc.

Los Angeles County Courthouse - Los Angeles, California

Case Number: B283132

Judge: Baker

Court: California Court of Appeals Second Appellate District Division Five on appeal from the Superior Court, Los Angeles County

Plaintiff's Attorney: Robert K. Sall, Michael A. Sall, Bentler Mulder, Robin S. Bentler, John Deily, James Harvey, and Brendan J. Coughlin

Defendant's Attorney: Jill Basinger, Elizabeth G. Chilton, and David Zarmi

Description: 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,7
combined 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.

Outcome: The order granting Mandekic’s petition is affirmed, and Mandekic is entitled to recover his costs on appeal.

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