In the Matter of a Mail Dispute Between

STEPHEN LATTIMORE
and
YVONNE LATTIMORE

P.S. Docket No.  MD 11-102

APPEARANCE FOR DISPUTANT
STEPHEN LATTIMORE

APPEARANCE FOR DISPUTANT
YVONNE LATTIMORE

INITIAL DECISION

            This mail dispute has been docketed pursuant to Postal Operations Manual (POM) §616.21, under the procedures established at 39 C.F.R. Part 965 to resolve conflicting claims to receive mail.  The disputants, children of Albert Lattimore, claim mail addressed to their deceased father at P.O. Box 6612, Salinas, California 93912-6612.  The Judicial Officer has ordered that the disputed mail be held by the Salinas Postmaster until this mail dispute is resolved.

FINDINGS OF FACT

            1.  Until his death, Albert Lattimore was the holder of Post Office Box 6612 in the Salinas, California Post Office.  Yvonne Lattimore was listed as an additional name on the post office record for the box, and up to the time her father died she frequently picked up mail from the box addressed to Albert Lattimore.  (Declaration of Yvonne Lattimore and Attachments A, E-G).

            2.  On September 28, 2010, Albert Lattimore executed a trust document creating the Living Trust of Albert Lattimore and transferred certain assets into the trust.  He reserved management of the trust assets to himself but appointed Yvonne Lattimore as successor trustee to serve upon his death and to have authority to manage and distribute the trust assets.  He reserved the right to amend or revoke the trust during his lifetime, but revocation was to be accomplished by a notarized writing attached to the Living Trust document.  (Attachment C to Law Department’s March 14, 2011 referral letter).

            3.  On November 12, 2010, Albert Lattimore was examined by a physician in conjunction with Mr. Lattimore’s request for In-Home Supportive Services from Monterey County.  The doctor noted in his report that Albert Lattimore was suffering from blindness and by checking boxes on the application form indicated that Albert Lattimore was unable to handle many basic life functions.  (Attachment C to Law Department’s March 14, 2011 referral letter).

            4.  On December 4, 2010, Albert Lattimore executed a Last Will and Testament, in which he provided for disposition of certain property upon his death and appointed Stephen Lattimore as the executor of the will.  The will specifically revoked all prior wills.  Three witnesses initialed each page of the will and signed certifications in which they acknowledged witnessing Albert Lattimore signing the document, and certified that he declared it to be his last will and testament, that he signed it voluntarily, and that he was of sound mind when he did so.  (Attachment B to Law Department’s March 14, 2011 referral letter).

            5.  Albert Lattimore died on January 24 or 25, 2011 (April 9, 2011 Letter from Stephen Lattimore; Attachment J to Yvonne Lattimore’s March 31, 2011 Statement).

            6.  Postal Service guidance for delivery of mail addressed to deceased persons provides, “The Postal Service should deliver as addressed any mail addressed to a deceased person.  Anyone who would normally receive the addressee’s mail at that address may receive the mail.”  (POM, Section 612.41).

            7.  However, such mail “may be forwarded to a different address, including that of an appointed executor or administrator, if an order o[r] request is filed at the Post Office.”  (POM, Section 612.42).

DECISION

            Yvonne Lattimore contends that her shared access to the box (Finding 1) and Albert Lattimore’s establishment of the Living Trust naming her as successor trustee upon his death (Finding 2) entitle her to receive the decedent’s mail.  Section 612.41 of the Postal Operations Manual (Finding 6) supports her contention.  However, POM Section 612.42 (Finding 7) authorizes the executor of a will to direct delivery of the decedent’s mail.  Under this provision, Stephen Lattimore, as the executor of Albert Lattimore’s will, is authorized to direct delivery of Albert Lattimore’s mail.  This authority is superior to any authority Yvonne Lattimore may have under POM Section 612.41 by virtue of her shared access to Box 6612.  See Mark Lebeau and John Jurkowski, P.S. Docket No. MD 10-35 (I.D. April 13, 2010).

            Yvonne Lattimore argues that Albert Lattimore’s execution of the will was fraudulent.  However, the document presented as the will of Albert Lattimore meets statutory requirements for a California will: it is in writing, was signed by the testator, and the signing was witnessed by three persons who certified that they understood the document to be Albert Lattimore’s will.  California Probate Code §§6110, 6113.[1]

            Yvonne Lattimore argues that Albert Lattimore lacked capacity to execute a valid will as of December 4, 2010, because at that time he was suffering from blindness and dementia.  California Probate Code § 6100.5 describes circumstances under which a testator is deemed not to be mentally competent to execute a valid will, and Yvonne Lattimore offers the doctor’s report of November 12, 2010 (Finding 3), as evidence that Albert Lattimore was not competent.  While that report raises questions about Albert Lattimore’s capabilities, “[i]t is well established that ‘old age or forgetfulness, eccentricities or mental feebleness or confusion at various times of a party making a will are not enough in themselves to warrant a holding that the testator lacked testamentary capacity.’”  Estate of Mann, 184 Cal.App.3d 593, 603, 229 Cal.Rptr. 225 (Cal. App. 1 Dist. 1986) (citation omitted); accord, Estate of Selb, 84 Cal.App.2d 46, 49, 190 P.2d 277 (Cal. App. 4 Dist. 1948).

            The doctor’s report was not the result of a competency examination but rather, was made to support Albert Lattimore’s request for county assistance.  The doctor merely checked boxes indicating various conditions, and it is not evident that his conclusions were based on his own observation and examination of Albert Lattimore or on conditions as reported to him during Mr. Lattimore’s visit.  In California, capacity to execute a will is presumed.  Estate of Mann, 184 Cal.App.3d 593, 602, 229 Cal.Rptr. 225 (Cal. App. 1 Dist. 1986).  In view of this presumption, the cursory nature of the doctor’s report, and the sparse record available in this proceeding, the three witness certifications that Albert Lattimore was of sound mind when he executed the will outweigh the doctor’s report on this issue. 

            Accordingly, on this record, his appointment of Stephen Lattimore as the executor of his will was valid, and under Postal Service regulations, Stephen Lattimore is entitled to direct delivery of mail addressed to Albert Lattimore.[2]

            This initial decision recommends that the Judicial Officer issue an order directing the postmaster to release the held mail in dispute to Stephen Lattimore,

and to deliver future mail addressed to Albert Lattimore, at P.O. Box 6612, Salinas, California 93912-6612, as directed by Stephen Lattimore.

Norman D. Menegat
Administrative Judge

[1] The statute requires only two witnesses.  California Probate Code §6110 (c)(1).

[2] Execution of the will revoked all prior wills (Finding 4), but as the will did not meet the requirements stated in the Trust for its revocation, i.e. that it be notarized and attached to the Trust document (Finding 2), it is not apparent that the Trust was revoked.  See Gardenhire v. Superior Court, 127 Cal.App.4th 882, 888, 26 Cal.Rptr.3d 143, 148 (Cal.App. 6 Dist. 2005)  Rosenauer v. Title Insurance Trust Co. 30 Cal.App.3d 300, 106 Cal.Rptr. 321 ((Cal. App. 2 Dist. 1973); Estate of Lindstrom (1987) 191 Cal.App.3d 375, 236 Cal.Rptr. 376 (Cal. App. 4 Dist. 1987).  However, as Postal Service regulations authorize the executor to direct delivery of the decedent’s mail, it is not necessary to address Yvonne Lattimore’s authority under the Trust or the extent to which the testamentary terms of the will and Trust may conflict.