McMahan

The decedent Opal Corinne Kennedy (Decedent) died testate on December 23, 1977. Her will, which was admitted to probate May 12, 1978, made provisions for her husband, Bob C. Kennedy (Husband), and her daughter, Patricia Lou Kennedy, now Patricia Hoskin (Daughter). Husband thereafter died. The executor of Decedent’s estate filed a petition to determine interest and entitlement to distribution pursuant to Probate Code section 1080, and statements of interest were filed by Daughter and by the executrix of Husband’s estate, Christine McMahan. Pursuant to stipulation the matter was bifurcated so that the court could first determine legal issues, each side reserving the right to try any factual issues remaining after the court’s resolution of legal issues.

The court determined that under the will Husband, and thereafter Husband’s estate, was put to an election whether to take the property bequeathed by the will or to assert Husband’s rights as surviving joint tenant to certain joint tenancy property which the will purported to bequeath to Daughter. 1 Husband’s executrix appeals, contending that the will did not force Husband to choose between taking the property left to him in…