Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. Nos. VP06293500, VP06286567.
Margulies, J.
Petitioner Dwayne Coufal is the successor trustee and a beneficiary of his parents’ inter vivos trust. The trust contains a no contest clause that disinherits any beneficiary who challenges either the trust or a trustor’s “Last Will and Testament.” Following the death of Dwayne’s father, his mother executed a will that purported to revoke the trust and disinherit Dwayne in favor of his brother, Paul Coufal. When Paul introduced his mother’s will into probate, Dwayne filed two petitions under Probate Code section 21320 seeking declarations that neither a petition to enforce the trust nor a petition to contest the will would be deemed to violate the no contest clause of the trust. The trial court granted the requested relief. We affirm.
I. BACKGROUND
On October 13, 2006, Dwayne filed a petition for declaratory relief (first 21320 petition) pursuant to Probate Code section 21320, subdivision (a). The first 21320 petition alleged that Dwayne is the successor trustee of an inter vivos trust, the Coufal Family Trust (trust). An unexecuted copy of the trust was attached to this petition. The trust was created by Dwayne’s parents, Paul Donald and Mary Ellen Coufal (hereafter Mr. and Mrs. Coufal). Dwayne, Paul, and Darrell Anthony Coufal were equal one-third beneficiaries. The primary assets of the trust were a residence in Livermore and a bank account, both of which were listed as community property. No separate property was listed.
Subdivision (a) of Probate Code section 21320, the safe harbor provision, reads as follows: “If an instrument containing a no contest clause is or has become irrevocable, a beneficiary may apply to the court for a determination of whether a particular motion, petition, or other act by the beneficiary . . . would be a contest within the terms of the no contest clause.”
Two other Coufal siblings were expressly excluded.
Under its terms, the trust was to be divided into two trusts (hereafter Trust A and Trust B) upon the death of either of the trustors. Trust A, intended to take advantage of the federal estate tax marital deduction, was to contain the surviving trustor’s share of the community property. (See McIndoe v. Olivos (2005) 132 Cal.App.4th 483, 489.) Trust B was to contain the balance of the trust estate. Upon the death of one of the trustors, the trust became irrevocable “except as may be provided under the provisions of Trust ‘A.’ ” The provision establishing Trust A does not expressly address revocation, while Trust B is expressly irrevocable by the surviving trustor.
The trust contains a no contest clause that reads as follows: “In the event any beneficiary under this Trust shall, singly or in conjunction with any other person, contest in any court the validity of this Trust or of a Deceased Grantor’s Last Will and Testament, or shall seek to obtain an adjudication in any proceeding in any court that this Trust or any of its provisions or that such Last Will and Testament of a Grantor or any of its provisions is void, or to seek otherwise to void, nullify or set aside this Trust or any of its provisions, then in that event the rights of the person to take any beneficial interest given to him or her by this Trust shall be revoked . . . .”
The first 21320 petition alleged that Dwayne had been given the unexecuted copy of the trust by his parents around April 2000, when the original of the trust was executed, and that the original was kept in his parents’ home. Mr. Coufal died on August 9, 2004. The next day, Mrs. Coufal, who was then hospitalized and seriously ill, executed a one-page will (will) that purported to “revoke my prior Trust, Wills and Codicils to Trust and Wills dated, April 17, 2000.” The will named Mrs. Coufal’s brother, Joe Bob Kirk, as executor, left her entire estate to Paul, and effectively disinherited the remaining four children. Two months later, Mrs. Coufal died. Nearly two years later, on August 29, 2006, Kirk filed a petition to probate her will.
The first 21320 petition sought a declaration that a petition Dwayne proposed to file (trust enforcement petition), a copy of which was attached to the first 21320 petition, would not be deemed to violate the trust’s no contest clause. The trust enforcement petition alleged that the trust had been duly executed in April 2000, that Paul had destroyed the original of the trust, and that the parents had intended disposition of the Livermore residence to be governed by the trust. It sought a determination that the trust was “valid and enforceable” and that the Livermore residence was property of the trust. The probate court concluded that because the trust enforcement petition would be filed by Dwayne in his role as trustee, rather than as beneficiary, it would not constitute a contest of the trust.
Dwayne apparently filed another petition (second 21320 petition) for a declaration under section 21320 that a document entitled “ ‘Contest and Grounds of Objection to Probate of Purported Will’ ” was not a contest of the trust. We say “apparently filed” because there is no copy of the second 21320 petition in the appellate record. The only evidence we have of its filing are an objection to it, filed by Kirk, and a second order by the probate court stating that “[t]he petition of [Dwayne] . . . for Declaratory Relief pursuant to Probate Code § 21320 came on for hearing” and holding that the “Contest and Grounds of Objection to Probate of Purported Will in the above entitled action is not a contest within the meaning of Art. 7.07 of the Coufal Family Trust, notwithstanding the fact that Art. 7.07 refers in part to ‘a Deceased Grantor’s Last Will and Testament.’ ”
Kirk has appealed both orders of the probate court.
II. DISCUSSION
The law relating to no contest clauses was concisely summarized in McIndoe v. Olivos, supra, 132 Cal.App.4th at pages 486–487: “A ‘contest’ is ‘any action identified in a “no contest clause” as a violation of the clause.’ [Citation.] A ‘no contest clause’ is ‘a provision in an otherwise valid instrument that, if enforced, would penalize a beneficiary if the beneficiary files a contest with the court.’ [Citation.] Such clauses are valid in California and are favored by the public policies of discouraging litigation and giving effect to the testator’s expressed purposes. [Citation.] However, because a no contest clause may result in a forfeiture, ‘a court is required to strictly construe it and may not extend it beyond what was plainly the testator’s intent. [Citations.]’ [Citation.]
“Under [Probate Code] section 21320, a beneficiary may, without violating a no contest clause, apply to the court for a determination whether a particular act would be a contest provided that no determination of the merits of the petition is required. Where, as here, a trial court rules on a section 21320 application without referring to extrinsic evidence, the appeal presents a question of law and requires us to independently construe the trust to determine whether the proposed petition violates the no contest clause. . . . We review the trust de novo, considering the circumstances under which the document was made in order to place ourselves in the position of the trustor to interpret the document. [Citation.] Each case depends upon its own peculiar facts and thus case precedents have little value when interpreting a trust. [Citation.]”
The primary factor determining whether a particular proposed proceeding constitutes a “contest” is the intent of the drafter of the instrument. “ ‘ “Whether there has been a ‘contest’ within the meaning of a particular no-contest clause depends upon the circumstances of the particular case and the language used.” [Citations.] “[T]he answer cannot be sought in a vacuum, but must be gleaned from a consideration of the purposes that the [testator] sought to attain by the provisions of [his] will.” [Citation.]’ ” (Estate of Davies (2005) 127 Cal.App.4th 1164, 1173.) In interpreting testamentary instruments, “ ‘ “[t]he intention of the transferor as expressed in the instrument controls the legal effect of the dispositions made in the instrument.” [Citations.] “ ‘The paramount rule in the construction of wills, to which all other rules must yield, is that a will is to be construed according to the intention of the testator as expressed therein, and this intention must be given effect as far as possible.’ [Citation.] The rule is imbedded in the Probate Code. [Citation.] Its objective is to ascertain what the testator meant by the language he used.” ’ ” (Estate of Kaila (2001) 94 Cal.App.4th 1122, 1131.)
We first address the trust enforcement petition. Plainly, the trust enforcement petition would not constitute a contest of the trust if the no contest clause defined a “contest” solely as a challenge to the trust itself. Because the trust enforcement petition seeks to enforce the terms of the trust, it is the very opposite of a contest. Matters are more complicated, however, because the trust’s no contest clause defines a “contest” to include not only a challenge to the validity of the trust but also a challenge to “the validity of . . .a Deceased Grantor’s Last Will and Testament.” Because the relief requested in the trust enforcement petition would result in the frustration of Mrs. Coufal’s will, the trust enforcement petition would appear to constitute just such a challenge to the validity of a trustor’s will. Ironically, Dwayne’s petition to enforce the trust therefore would appear to constitute a contest of the trust, at least under the literal terms of its no contest clause.
Our analysis does not stop there, however, because the no contest clause cannot be interpreted in isolation. Rather, we must interpret it in light of the intent of the testators as expressed in the trust instrument as a whole. (McIndoe v. Olivos, supra, 132 Cal.App.4th at p. 487; see generally Hearst v. Ganzi (2006) 145 Cal.App.4th 1195, 1210–1212.) Analysis of the language of the no contest clause in light of the entirety of the trust leads us to a very different conclusion.
The trust was a comprehensive estate planning device jointly agreed to by Mr. and Mrs. Coufal. Section 2.01 of the trust permits either spouse freely to revoke the trust at any time during their joint lives. The power to revoke, however, changed dramatically once one of them died. Section 2.05, entitled “Upon the Death of the First Grantor,” states, “Upon the death of the first Grantor, no right to alter, amend, revoke or terminate this Trust or Trusts shall exist except as may be provided under the provisions of Trust ‘A.’ ” Because the provisions governing Trust A do not address revocation, the language of section 2.05 expresses the clear mutual intent that neither spouse would have the right or power to alter their comprehensive estate plan once either of them had died. In effect, Mr. and Mrs. Coufal agreed that once one of them died, the surviving spouse would adhere to the estate plan to which they agreed while they were both alive.
As the facts alleged in the first 21320 petition demonstrate, the express language of the no contest clause creates a latent threat to the accomplishment of the trustors’ joint intent because it insulates a surviving trustor’s will from challenge. The trust created an estate plan that could not be altered by a surviving spouse. In the event a surviving spouse violated that intent by executing a will that purported to alter the terms of the trust, the only persons with standing or motivation to challenge that violation would be the trust beneficiaries. Yet the no contest clause states that any beneficiary of the trust who contests a will created by a surviving spouse is disinherited under the trust. The plain language of the no contest clause therefore makes a will violating the intent of the trust immune, as a practical matter, from challenge. By precluding an attack on the will of a surviving spouse, the no contest clause contains within it the potential for the frustration of the overriding purpose of the trust. Because the purpose of a no contest clause is to promote, rather than frustrate, the trustors’ intent, a literal reading of the no contest clause would lead to an absurd result in such a situation.
We note that under Probate Code section 21305, subdivision (a)(3), a challenge to an instrument other than the instrument containing the no contest clause is ordinarily not a contest. Section 21305 is inapplicable here, however, because subdivision (a)(3) can be countermanded by the express terms of the trust and because subdivision (a)(3) is inapplicable to trusts executed prior to 2001. (Estate of Rossi (2006) 138 Cal.App.4th 1325, 1333.)
The trust enforcement petition alleges that, after the death of Mr. Coufal, Mrs. Coufal executed a will in derogation of the terms of the trust. Indeed, the will on its face purports to revoke the trust, despite the irrevocable nature of Trusts A and B upon the death of either spouse. To label such a petition a contest of the trust would render the trust illusory, since such a ruling would permit the trust to be countermanded, and thereby frustrated, by the surviving spouse. For that reason, we do not interpret the trust enforcement petition as a contest of the trust.
Given the circumstances alleged, it is also possible that the will was drafted in violation of Probate Code section 21350, which precludes the drafter of an instrument from taking under that instrument. By statute, a challenge alleging that an instrument was drafted in violation of section 21350 is not a contest. (Prob. Code, § 21306, subd. (a)(3).) Given the failure of the proposed petition to allege expressly that Paul drafted the will, we do not address this issue further.
Because we find the trust enforcement petition not to constitute a contest of the trust, we need not reach Dwayne’s argument that he should be permitted to bring the trust enforcement petition in his capacity as trustee without risking his status as a beneficiary.
We find no merit in Kirk’s counter-arguments. Kirk first argues that the “proposed pleading titled CONTEST AND GROUNDS OF OBJECTION TO PROBATE OF PURPORTED WILL . . . clearly was a ‘direct contest’ under Probate Code § 21300(b).” This argument refers to a document attached to the second 21320 petition, which, as noted, was apparently filed by Dwayne for a declaration that a direct contest of the will would not constitute a contest of the trust.
We find ourselves unable to consider this argument because the record contains no copies of the second 21320 petition or the proposed pleading to which the argument refers. Because we have no copy of the proposed pleading, we have no way to ascertain its allegations and demand for relief, and therefore to determine whether it constitutes a contest. For us to review the ruling of the probate court on this pleading would require us to rely on speculation about its contents.
As appellant, it was Kirk’s responsibility to provide us with an adequate record from which to review the orders of the probate court. (E.g., Ballard v. Uribe (1986) 41 Cal.3d 564, 574–575; Forrest v. Department of Corporations (2007) 150 Cal.App.4th 183, 194–195.) In the absence of an adequate record, we have no choice but to affirm the probate court’s order with respect to the second 21320 petition. (See Ballard v. Uribe, at pp. 574–575 [“It is well settled, of course, that a party challenging a judgment has the burden of showing reversible error by an adequate record. [Citations.] Because plaintiff has failed to provide such a record, we have no occasion to consider further the merits of his cross-appeal”].)
Kirk’s second argument is that Dwayne, acting as trustee, did not have standing to file a section 21320 petition. Because we do not reach Dwayne’s arguments premised on his status as trustee, we need not consider this argument.
Kirk’s third argument is that the probate court erred in considering “the credibility of evidence or the merits of a case.” While we find no evidence that the probate court did, in some manner, evaluate the evidence, as opposed to take proper account of the allegations in the petitions, the issue is moot. Our review is de novo, and we have concluded that the probate court’s ruling was correct as a matter of law.
We do not express any views as to the merits of the trust enforcement petition, the proposed pleading attached to the second 21320 petition, or any issues relating to the distribution of the assets of Mr. and Mrs. Coufal. Our sole ruling is to affirm the probate court’s declarations that Dwayne’s filing of the trust enforcement petition and the proposed pleading attached to the second 21320 petition will not violate the no contest clause of the trust.
III. DISPOSITION
The orders of the trial court are affirmed.
We concur: Marchiano, P.J., Swager, J.