Opinion
F053325
10-16-2008
ROBERT SCHWARTZ, Plaintiff and Appellant, v. NICOLETTE SCHWARTZ, as Trustee etc., Defendant and Respondent.
Darling & Wilson and Joshua G. Wilson for Plaintif and Appellant. Klein, DeNatale, Goldner, Cooper, Rosenlieb & Kimball, Catherine E. Bennett, Joseph D. Hughes and Joshua D. Meier for Defendant and Respondent.
Not to be Published
Appellant Robert Schwartz appeals from the order filed April 28, 2007, denying his application for a determination of whether his proposed petition for an order directing distribution would be a contest in the context of the no-contest provision of the Adolf W. Schwartz and Chris Edda Schwartz Living Trust of 1987 (the trust). The trial court found the application moot because appellant had placed the petition itself in controversy for the courts determination. We affirm.
FACTS AND PROCEEDINGS
We have this same day filed our opinion in appellants companion appeal in case No. F053942, which concerns the same facts and proceedings as this appeal. Rather than repeat verbatim the facts and proceedings, we direct the reader to that section of that opinion as though fully set forth in this opinion.
DISCUSSION
When, on August 17, 2006, appellant filed an application for determination of whether a petition for order directing distribution of property from the trust would be a "contest" under Probate Code section 21320 (hereafter the application), he attached to his application a copy of the proposed petition. On September 1, 2006, without waiting for a ruling on his application, appellant filed the actual petition, seeking to void Adolf Schwartzs holographic third codicil to his will, which in part sought to exercise a power of appointment under the trust.
As we have determined in case No. F053942, in spite of appellants withdrawal of the actual petition, that court was not divested of jurisdiction to rule upon the controversy raised by that petition. As we explain in that opinion, appellants petition was an indirect contest of the third codicil and respondent affirmatively alleged relief based on this indirect contest in her response to the petition that preceded appellants effort to withdraw it.
In this appeal, appellant challenges the April 28, 2007, formal order of the trial court denying appellants application. Appellant contends the subsequent filing of the pleading that is the subject of the application does not render moot the declaratory relief provisions of that statute.
He specifically argues:
"Appellant filed his Application under section 21320 on August 17, 2006 seeking a determination of whether his proposed Petition Directing Distribution would violate the Trust Instruments no contest clause. He then filed the Petition Directing Distribution itself on September 1, 2006. Appellant withdrew the Petition on December 18, 2006. The trial court concluded that appellants `safe harbor application under section 21320 was moot because he had filed the Petition Directing Distribution before the court had ruled on the section 21320 Application.
"....................................................................................
"Section 21320 provides more than just a `safe harbor. Section 21320, subdivision (a) authorizes declaratory relief to determine whether a proposed action would trigger a no contest provision in a will or trust. . . .
"........................................................................................
". . . Section 21320, subdivision (b) provides `safe harbor protection for declaratory actions that are confined to section 21320, subdivision (a). When appellant filed his Petition Directing Distribution, he may have lost the practical benefit that his Application under section 21320, subdivision (a) could not itself be a contest. But the parties still stood to benefit from a determination of whether the Petition Directing Distribution was a contest.
"The effectiveness of the declaratory relief authorized under section 21320, subdivision (a) is not wholly dependent upon whether a party qualifies for the immunity provided under section 21320, subdivision (b). Section 21320, subdivision (a) parallels the declaratory relief authorized by Code of Civil Procedure section 1060. The `safe harbor provided in section 21320, subdivision (b) is a codification of a judicial practice of affording immunity to declaratory relief actions that sought to determine whether an action would constitute a contest. (Genger v. Delsol (1997) 56 Cal.App.4th 1410, 1419 fn. 3.) But Code of Civil Procedure section 1060 expressly excludes its application to wills and trusts leaving section 21320, subdivision (a) as the sole means of obtaining declaratory relief of a trust or wills no contest provision.
". . . Ruling on the section 21320 Application would have determined whether the Petition Directing Distribution was a contest under the Trust Instruments No Contest Clause settling the parties rights with respect to the trust without the necessity of further proceedings. In effect, respondents subsequent Petition to Invoke the No Contest Clause would have been unnecessary had the trial court ruled on the section 21320, subdivision (a) Application instead of denying it as moot." (Record citations omitted.)
Probate Code section 21320 states:
"(a) 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, including, but not limited to, creditor claims under Part 4 (commencing with Section 9000) of Division 7, Part 8 (commencing with Section 19000) of Division 9, an action pursuant to Section 21305, and an action under part 7 (commencing with Section 21700) of Division 11, would be a contest within the terms of the no contest clause.
"(b) A no contest clause is not enforceable against a beneficiary to the extent an application under subdivision (a) is limited to the procedure and purpose described in subdivision (a).
"(c) A determination under this section of whether a proposed motion, petition, or other act by the beneficiary violates a no contest clause may not be made if a determination of the merits of the motion, petition, or other act by the beneficiary is required.
"(d) A determination of whether Section 21306 [forgery, revocation or action to establish invalidity of certain transfers] or 21307 [provision benefiting witness or person involved in drafting or transcribing instrument] would apply in a particular case may not be made under this section."
Probate Code section 21320 authorizes a declaratory relief proceeding whereby the beneficiary of a trust that either is or has become irrevocable may obtain an advance ruling on whether a particular legal challenge would be a contest. Expressed another way, Probate Code section 21320 provides a "safe harbor" for beneficiaries of a will or trust who seek an advance judicial determination of whether a proposed legal challenge would be a contest. But the issue permitted to be decided in that "safe harbor" proceeding is justifiably confined to the question whether a proposed action would be a contest. Upon obtaining an adverse ruling, the beneficiary is put to an election: either to accede to the will or trust or to pursue the contest. (Genger v. Delsol (1997) 56 Cal.App.4th 1410, 1427-1429 (Genger).) Such an application is not itself a contest. (Prob. Code, § 21320, subd. (b).) However, the application for an advance ruling may not seek a determination of the merits of the legal challenge. (Prob. Code, § 21320, subd. (c); Genger, supra, at p. 1427.)
The determination as to whether an action constitutes a prohibited contest to a will or trust is made based on the circumstances of each particular case. The court must determine the expressed wishes of the testator or settlor, and whether the action is an attempt to thwart those wishes; if so, then it is a contest. (Estate of Richter (1993) 12 Cal.App.4th 1361, 1367.) The interpretation of a written instrument, including a will or trust, presents a question of law unless interpretation turns on the credibility of extrinsic evidence or a conflict therein. (Burch v. George (1994) 7 Cal.4th 246, 254.) Accordingly, the reviewing court is not bound by the lower courts interpretation but must independently construe the instrument at issue. (Poag v. Winston (1987) 195 Cal.App.3d 1161, 1173.)
As defined in Probate Code section 21300, "Contest" means any action identified in a no contest clause as a violation of the clause and includes both direct and indirect contests. Appellant chose not to await a determination of his application by knowingly filing his actual petition. Under the present circumstances, the trust was attacked the moment that appellant filed his petition contrary to the provisions of Adolf Schwartzs latest testamentary declaration. Accordingly appellant abandoned the safe harbor provided by Probate Code section 21320.
Nonetheless, appellant now contends he is entitled to declaratory relief under Probate Code section 21320 even if he has not complied with the "safe harbor" provisions of that statute. Appellant has not cited and we have been unable to find any case authority or legislative history supporting the availability of such relief outside the confines of Probate Code section 21320. Appellant correctly notes that the general statute governing declaratory relief (Code Civ. Proc., § 1060) expressly excludes wills and trusts from its scope. As a result, he maintains the declaratory relief authorized by Probate Code section 21320 must apply in the instant situation. Appellant forgets that 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. However, such relief is not available if a determination of the merits of the petition is required. (McIndoe v. Olivos (2005) 132 Cal.App.4th 483, 487; Zwirn v. Schweizer (2005) 134 Cal.App.4th 1153, 1156, fn. 5.)
Appellant chose to sail outside of the safe harbor of Probate Code section 21320. Appellants handling of the petition did not fit the clear parameters of Probate Code section 21320, and the trial court properly declared appellants previously filed application to be moot. Nor is there any reason for us to accept appellants invitation to discretionarily decide this moot issue; we see no "broad public interest." The trial court did not err in finding the application to be moot.
DISPOSITION
The order of April 28, 2007, denying appellants application is affirmed. Costs on appeal are awarded to respondent.
We Concur:
CORNELL, J.
KANE, J.
In case No. F053492, we conclude that the trial court did not err in invoking the no-contest provision of the trust as applied to appellants petition.