Della Sala v. Father Flanagan's Boys' Home

Anthony Della Sala (petitioner) appeals from a judgment denying his petition for entitlement to assets of the estate of his father, Attilio Della Sala (Attilio). Attilio died testate without making any provision in his will for petitioner. The trial court found that petitioner was not entitled to assets of the estate as a pretermitted heir because Attilio did not believe petitioner was dead when Attilio executed his will. (Prob. Code, § 6572; further section references are to the Probate Code unless specified otherwise.)

Petitioner contends the trial court erred in allocating to him the burden to prove his claim that Attilio believed petitioner was dead when the will was executed and, for this reason, did not provide for petitioner in the will. In petitioner’s view, defendants Alma Pitman, Attilio’s executor, and Father Flanagan’s Boys’ Home, Attilio’s beneficiary, should bear the burden of disproving his claim to the estate as a pretermitted heir and that, with the burden of proof thus placed, the evidence compels a judgment in petitioner’s favor. We disagree.

When Attilio signed his will, section 6572 stated that, if at the time of the execution of a will the testator…