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

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

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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.

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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).)

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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.

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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

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“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

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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.)

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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.

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(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

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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

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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)

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(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

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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”].)

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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.

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