Accord on Whelan Will Provides for Bird Preserve

A final settlement has been reached in a bitter dispute over the multimillion-dollar estate of Ellen Whelan, the pioneer Oceanside dairywoman who left two conflicting wills when she died more than a year ago.

The accord will create a 120-acre sanctuary for the migratory birds that have made a habit of wintering at Whelan’s dairy, located on the rolling northern banks of the San Luis Rey River.

Of Whelan’s remaining assets, $250,000 to $500,000 will be provided to an organization that will operate the bird sanctuary. No group has yet been selected. The balance of the estate, including the 203 acres outside the wildfowl preserve, will be divided among four beneficiaries named in the second will.

The agreement, completed Monday in Vista Superior Court, brings to a close a stinging battle over Whelan’s estate.

Vastly Different Wills

After her death, two vastly different wills surfaced. The first, drafted in 1975 by her longtime attorneys in San Diego, stipulated that nearly all Whelan’s assets be used to establish a bird sanctuary on her 323-acre ranch, which includes a lake frequented by large flocks of Canada geese and other migratory waterfowl.

The second will, prepared in 1981 by an attorney for Ivan Wood, manager of the dairy, left nothing for the birds. Instead, the dairy was to go to Wood. The remaining assets were to be divided among Wood; longtime dairy employee Juan Gonzalez; Virginia Gomez, a former live-in conservator of Whelan, and the Prince of Peace Abbey, a frequent recipient of Whelan’s charity.

That document surprised friends of Whelan, who recalled that the elderly dairywoman derived boundless joy from the birds that rested near her modest ranch house each winter. Concerned about their welfare, Whelan spent money freely on sacks of grain scattered daily on the lake’s shore.

She feared that their habitat was vanishing as well, so the 1975 will contained detailed instructions directing that a private board of directors be formed to maintain the sanctuary and control hunting, pesticides and other elements that could harm the winged visitors.

Prompted by complaints from some of Whelan’s friends, the state attorney general’s office contested the second will after the dairywoman died on New Year’s Eve, 1985.

William Abbey, a deputy attorney general, alleged that Wood exerted “undue influence” on Whelan--who suffered from Alzheimer’s disease late in life--by persuading her to sign the new document. Abbey also charged in court papers that Whelan possessed “a lack of mental capacity” when the second will was drawn up, and that the will was not prepared properly.

Wood, who has declined interviews, said in court documents that he was Whelan’s “close friend” and was treated like a grandson by her.

Despite letters from Wood and statements from numerous friends of Whelan’s that raised doubts about the authenticity of the second will, Abbey decided that a settlement was the best way to achieve the primary wishes of the dairywoman.

“Essentially, we were spurred by the fact that no case, including this one, is a dead-bang winner,” Abbey said Wednesday.

Tentative Settlement

In February, he and attorneys for the beneficiaries hammered out a tentative settlement agreement. But that accord was placed in doubt when Abbey grew concerned about the effect polluted runoff from the dairy would have on the lake that forms the centerpiece of the proposed bird sanctuary.

On Monday, however, Vista Superior Court Judge F. V. Lopardo assured Abbey that existing state water-quality laws would prohibit any discharges from the dairy that might prove harmful to the geese gathering at the lake.

Moreover, attorneys for Wood have indicated they now feel it would be best to sell or move the cows, which have become a smelly nuisance for residents of the tract homes that have sprung up around the dairy during the past two decades.

Abbey said the agreement calls for distribution of Whelan’s assets within 60 days. In the meantime, the attorney general’s office will determine what group it will recommend to be named by Lopardo to run the bird sanctuary. The Buena Vista Audubon Society has expressed interest in assuming that role, Abbey said.

Officials with the Audubon Society’s San Diego chapter have criticized plans for the bird sanctuary, saying that the 120 acres do not include enough shoreline habitat for the waterfowl to feed. The group expressed hope in April that more land could be set aside for the sanctuary.

Philip Pryde, a member of the San Diego chapter, said Wednesday that he was not surprised that additional acreage was not included in the final settlement. He expressed hope, however, that the boundaries of the 120-acre parcel are such that enough suitable habitat will be retained in the sanctuary for the birds to feed.

Moreover, the ultimate success of the sanctuary, Pryde said, will likely hinge on the effectiveness of whomever is named to run it.