Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Los Angeles County Super. Ct. No. BP100209, Aviva K. Bobb, Judge. Affirmed.
Law Offices of Michael L. Magasinn and Michael L. Magasinn for Objector and Appellant.
Law Offices of Thomas M. Comparet and Thomas M. Comparet for Petitioner and Respondent.
TURNER, P. J.
I. INTRODUCTION
Wendy Norma Courtney, as trustee of the Samuel J. and Beatrice Sperling Family Trust (the trustee), appeals from a January 29, 2007 order. The probate court ruled a proposed petition to remove the trustee and appoint a successor trustee would not violate the trust’s no contest clause. (Prob. Code, § 21320.) We conclude: the proposed petition alleging the trustee has breached her fiduciary duties is not a contest within the meaning of the trust’s no contest clause; the challenge with respect to the survivor’s trust is also not a contest under the plain language of section 21305, subdivisions (b) and (d); we cannot consider the merits of the fiduciary breach petition in ruling on the section 21320 application; and there is no claim the no contest clause, or a provision of it, violates public policy as a matter of law. Accordingly, we affirm the order.
Probate Code section 1304, subdivision (d), authorizes an appeal from a determination whether a petition constitutes a trust contest. The trustee appeals from a December 13, 2006 minute order determining the proposed petition did not constitute a contest. The minute order directs petitioner, the moving party, to prepare an order. The trustee’s notice of appeal states, “This Appeal is taken directly from the Minute Order entered on December 13, 2006, in that the Petitioner and responding party to this appeal failed to comply with the trial court’s order to prepare an order for the trial court’s signature and give notice thereof.” Notwithstanding that statement, and notwithstanding Probate Code section 1304, subdivision (d), no appeal lies from the minute order directing preparation of a formal order. (Cal.Rules of Court, rule 8.104(d)2); Herrscher v. Herrscher (1953) 41 Cal.2d 300, 304-306; County of Alameda v. Johnson (1994) 28 Cal.App.4th 259, 261, fn.1; Estate of Guerrero (1986) 183 Cal.App.3d 723, 731; In re Marriage of Wood (1983) 141 Cal.App.3d 671, 677.) However we treat the appeal as from the subsequently filed January 29, 2007 order. (Cal.Rules of Court, rule 8.104(e).)
All further statutory references are to the Probate Code unless otherwise indicated.
II. BACKGROUND
The trust was created on May 17, 1989, and amended on September 27, 1989. Ms. Sperling died on February 26, 1999. Upon her death, three subtrusts were created: the exemption trust; the qualified trust; and the survivor’s trust. The exemption and qualified trusts, which consisted of Ms. Sperling’s share of the trust assets, became irrevocable upon her death. Mr. Sperling died on April 23, 2006. The survivor’s trust became irrevocable upon his death. Beatrice and Samuel Sperling had two children, the trustee and Stephen Michael Sperling, the petitioner.
For purposes of clarity and not out of any disrespect, the Sperlings’ son will be referred to as Stephan.
The trust instrument includes a no contest clause: “If any beneficiary under this instrument or any trust hereunder, other than a Settlor or any charitable beneficiary, in any manner, directly or indirectly, contests or attacks this instrument or any provision under this instrument, or the Will of a Settlor or any provision under that Will, or conspires to do so, or fails to cooperate in good faith in the defense of any attack or contest, any share or interest in this trust estate given to or for the benefit of such beneficiary under this instrument is revoked and shall be disposed of in the same manner provided here in as if such beneficiary had predeceased the Settlors without issue. The Trustee is specifically authorized to defend, at the expense of the trust estate, any contest or attack of a Settlor’s estate, or this trust estate, or any contest or attack of any nature made at any time upon a Settlor’s Will or this instrument or any provision thereunder. For the purpose of this paragraph, a request to a court of competent jurisdiction for instructions or interpretation shall not be deemed to be a contest or attack.”
Stephan filed an October 27, 2006 application to determine whether a proposed petition to remove the trustee and to appoint a successor trustee would violate the no contest clause. (Prob. Code, § 21320.) The proposed petition alleged the trustee had breached her fiduciary duties by: occupying trust real property without paying rent; investing in speculative internet investments; and failing to fund the qualified trust. As noted, the probate court concluded the proposed petition did not violate the trust’s no contest clause. The probate court ruled: “[A]s to the survivor’s subtrust, Probate Code section 21305[, subdivision] (b)(7) applies because the subtrust became irrevocable after January 1, 2001; it specifically states that such a petition to remove [a] trustee is not a violation of the ‘no contest’ clause. As to the other two subtrusts, a review of the ‘no contest’ clause itself does not make any reference to such a petition being a violation of the ‘no contest’ clause.”
III. DISCUSSION
Section 21300 defines a contest as follows: “‘Contest’ means any action identified in a ‘no contest clause’ as a violation of the clause. The term includes both direct and indirect contests. [¶] (b) ‘Direct contest’ in an instrument or in this chapter means a pleading in a proceeding in any court alleging the invalidity of an instrument or one or more of its terms based on one or more of the following grounds: [¶] (1) Revocation. [¶] 2. Lack of Capacity. [¶] 3. Fraud. [¶] 4. Misrepresentation. [¶] 5. Menace. [¶] 6. Duress. [¶] 7. Undue influence. [¶] 8. Mistake. [¶] 9. Lack of due execution. [¶] 10. Forgery. [¶] (c) ‘Indirect contest’ means a pleading in a proceeding in any court that indirectly challenges the validity of an instrument or one or more of its terms based on any other ground not contained in subdivision (b), and that does not contain any of those grounds. [¶] (d) ‘No contest clause’ means a provision in an otherwise valid instrument that, if enforced, would penalize a beneficiary if the beneficiary files a contest with the court.” The Court of Appeal has explained: “A ‘contest’ is not confined to a direct attack on a will or trust instrument. It may include a separate legal proceeding which is designed to thwart the testator’s expressed wishes. (E.g., Burch v. George [(1994)] 7 Cal.4th 246 [complaint against pension plan administrators]; Estate of Friedman [(1979)] 100 Cal.App.3d 810 [complaint against widower to establish constructive trust]; Estate of Kazian (l976) 59 Cal.App.3d 797 [separate complaint to establish community interest].)” (Genger v. Delsol (1997) 56 Cal.App.4th 1410, 1420, fns. omitted; accord, Estate of Davies (2005) 127 Cal.App.4th 1164, 1175.)
Section 21320, which allows a beneficiary to obtain a judicial determination whether a proposed petition would be a contest, states in part: “(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 . . . 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. . . .” As Division One of the Court of Appeal for this appellate district has explained, “[S]ection 21320 provides a safe harbor for beneficiaries who seek a judicial determination whether a proposed legal challenge would be a contest . . . .” (Estate of Davies, supra, 127 Cal.App.4th at p. 1173.)
The Supreme Court set forth the principles guiding a determination whether a proposed petition amounts to a contest within the meaning of a no contest clause in Burch v. George, supra, 7 Cal.4th at pages 254-255: “The interpretation of a will or trust instrument presents a question of law unless interpretation turns on the credibility of extrinsic evidence or a conflict therein. (Estate of Dodge (1971) 6 Cal.3d 311, 318; Estate of Russell (1968) 69 Cal.2d 200, 213; Poag v. Winston (1987) 195 Cal.App.3d 1161, 1173.) . . . [¶] An in terrorem or no contest clause in a will or trust instrument creates a condition upon gifts and dispositions provided therein. (See Estate of Lindstrom (1987) 191 Cal.App.3d 375, 381.) In essence, a no contest clause conditions a [beneficiary’s] right to take the share provided to that beneficiary under such an instrument upon the beneficiary’s agreement to acquiesce to the terms of the instrument. (See Estate of Hite (1909) 155 Cal. 436, 441.) [¶] No contest clauses are valid in California and are favored by the public policies of discouraging litigation and giving effect to the purposes expressed by the testator. (Estate of Hite, supra, 155 Cal. at pp. 439-441; Estate of Black (1984) 160 Cal.App.3d 582, 586-587.) Because a no contest clause results in a forfeiture, however, a court is required to strictly construe it and may not extend it beyond what was plainly the testator’s intent. (Estate of Watson (1986) 177 Cal.App.3d 569, 572; Estate of Black, supra, 160 Cal.App.3d at p. 587; Estate of Kazian (1976) 59 Cal.App.3d 797, 802.) [¶] ‘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.’ (Estate of Watson, supra, 177 Cal.App.3d at p. 572; Estate of Lindstrom, supra, 191 Cal.App.3d at p. 381; Estate of Black, supra, 160 Cal.App.3d at p. 587.) ‘[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.’ (Estate of Kazian, supra, 59 Cal.App.3d at p. 802.) Therefore, even though a no contest clause is strictly construed to avoid forfeiture, it is the testator’s intentions that control, and a court ‘must not rewrite the [testator’s] will in such a way as to immunize legal proceedings plainly intended to frustrate [the testator’s] unequivocally expressed intent from the reach of the no-contest clause.’ (Ibid.)” (Fns. omitted; see Prob. Code, § 21304 [“In determining the intent of the transferor, a no contest clause shall be strictly construed”].) There is no conflict in the evidence or issues of credibility in the present record. Therefore, we independently construe the no contest clause. (Burch v. George, supra, 7 Cal.4th at p. 254; accord, Colburn v. Northern Trust Co. (2007) 151 Cal.App.4th 439, 447; Gardenhire v. Superior Court (2005) 127 Cal.App.4th 882, 887, fn. 4.)
The trustee contends the proposed petition to remove her as trustee is a contest because it seeks to invalidate multiple provisions of the trust and the claims asserted therein are frivolous. The trustee further asserts determining whether the proposed petition to remove her is a contest requires a decision on the merits thereof. The trustee argues: “While the Proposed Petition purportedly seeks to remove the Trustee for alleged breaches of her fiduciary duties, in fact, the Proposed Petition seeks to invalidate provisions of the Trust. The provisions of the Trust permit the Trustee to perform each and every act which is alleged as a breach, or it exonerates the Trustee for not acting as [the petitioner] believes the Trustee should have acted. . . . [¶] . . . In order for the Trustee to have breached her fiduciary duties, she must unreasonably act in contravention to the terms of the Trust and the applicable portions of the Probate Code. In this case, all of the actions taken by the Trustee were well within the scope of her duties and powers granted by the Trust as a matter of law. The Proposed Petition is a clear ‘attack’ on specific provisions of the Trust instrument in violation of the express terms of the no contest clause.” The trustee further asserts, “[F]or the Trustee to be in breach of her fiduciary duties and subject to removal as alleged in the . . . Proposed Petition, multiple provisions of the Trust would have to be invalidated, specifically, paragraphs C.4, C.5, C.17 and D.13.” Article C of the trust instrument sets forth the trustee’s powers. Paragraph C.4 grants the trustee broad power to invest and reinvest the trust estate. Paragraph C.5 authorizes the trustee to hold assets without liability for failure to invest in a particular manner. Paragraph C.17 discusses conflicts of interest. Article D contains general trust provisions. Paragraph D.13 exonerates successor trustees from responsibility for acts of any prior trustee. The trustee concludes, “The Trustee has acted within the scope of all of her fiduciary duties, and cannot be found in breach of the Trust.”
Article C states in pertinent part: “Powers of Trustee [¶] To carry out the purposes of these trusts, and subject to any limitations stated elsewhere in this instrument, the Trustee is vested with the following powers with respect to the trust estate and any part of it, in addition to those powers now or hereafter conferred by law: [¶] . . . [¶] C.4 Investment. To retain property without any obligation of diversification; to invest and reinvest all or any part of the trust estate in every kind of property, real, personal, or mixed, and every kind of investment, specifically including, but not by way of limitation, publicly traded or closely held corporate obligations of every kind, and preferred or common stock, interests in partnerships and joint ventures, deeds of trust, debt obligations, mortgages, and share of investment trusts, investment companies and mutual funds, including any common trust fund administered by the Trustee; to acquire or maintain life or health insurance on the life of any person in whom any trust or any beneficiary hereunder shall have an insurable interest; to purchase or exchange assets at their fair market value on behalf of any trust hereunder from any other trust hereunder or any other entity or person, including a Settlor or the estate of a Settlor; to purchase and sell commodities, securities, or other assets; to purchase assets on margin or credit and to make purchases for cash, upon deferred payments, or partially for cash and partially upon deferred payments. [¶] C.5 Retention. To continue to hold (at the Trustee’s election) all assets without liability for failure to invest the trust estate in properties having greater income, greater appreciation, or less risk of loss of income or principal. However, if the Surviving Spouse is the beneficiary of a trust for which a federal estate tax marital deduction is claimed, the Surviving Spouse shall have the power to require the Trustee to convert property of that trust into productive property. . . . [¶] . . . C.17 No Conflict of Interest. No action by a Trustee otherwise appropriate under this instrument shall be deemed improper or invalid because of a position of conflict of interest or fiduciary restrictions arising out of transactions with the Trustee or any entity of which the Trustee is a fiduciary, beneficiary, officer, employee, partner, member, or otherwise interested party.”
Paragraph D.13 states: “Exoneration of Successor. No successor Trustee shall be responsible for the acts or omissions of any prior Trustee, or have any duty to audit or investigate the accounts or administration of any such Trustee, or, unless requested in writing to do so by a person having a present or future beneficial interest under any trust, have any duty to take action to obtain redress for breach of trust.”
It is well settled that the question before the court on a section 21320 petition is not whether the proposed legal challenge will succeed on the merits. Rather, the relevant test is whether asking a court to rule on it would constitute a trust contest. (§ 21320, subd. (c); McKenzie v. Vanderpoel (2007) 151 Cal.App.4th 1442, 1449-1450; Zwirn v. Schweizer (2005) 134 Cal.App.4th 1153, 1156, fn. 5; Estate of Davies, supra, 127 Cal.App.4th at p. 1173; Estate of Ferber (1998) 66 Cal.App.4th 244, 251; Genger v. Delsol, supra, 56 Cal.App.4th at p. 1428, fn. 17.) Section 21320, subdivision (c) specifically states, “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.” The Courts of Appeal have held that a ruling on whether a beneficiary’s proposed petition constitutes a contest may not involve a decision on the merits of the action itself. (McKenzie v. Vanderpoel, supra, 151 Cal.App.4th at pp. 1449-1450; Zwirn v. Schweizer, supra, 134 Cal.App.4th at p. 1156, fn. 5; Estate of Davies, supra, 127 Cal.App.4th at p. 1173; Estate of Ferber, supra, 66 Cal.App.4th at p. 251; Genger v. Delsol, supra, 56 Cal.App.4th at p. 1428, fn. 17.) In Estate of Davies, supra, 127 Cal.App.4th at page 1173, the Court of Appeal explained: “[S]ection 21320 provides a safe harbor for beneficiaries who seek a judicial determination whether a proposed legal challenge would be a contest, and that is the only issue to be decided when such an application is made. (Genger v. Delsol, supra, 56 Cal.App.4th at pp. 1428-1429.) As a general rule, the decision about whether the beneficiary’s proposed action would be a will contest may not involve a determination of the merits of the action itself, a rule that ‘makes sense’ because the summary safe harbor procedure could otherwise ‘be used to allow the very form of challenge and protracted litigation the testator sought to prevent.’ (Estate of Ferber [, supra, ] 66 Cal.App.4th [at p.] 251.)” (Fn. omitted.) In Estate of Ferber, supra, 66 Cal.App.4th at page 251, the Court of Appeal observed: “This [rule] makes sense. Otherwise, the summary procedure [under section 21320] could be used to allow the very form of challenge and protracted litigation the testator sought to prevent.”
Here, the trustee’s arguments address the merits of the petition to remove her as trustee. The trustee relies on factual assertions that have no support in the record. Clearly, whether the trust authorizes or exonerates the trustee’s actions that are challenged in the proposed petition goes to the merits of the fiduciary duty breach claims. Whether the trustee acted reasonably and in compliance with the trust’s terms is not properly before the court on a section 21320 application. (§ 21320, subd. (c); McKenzie v. Vanderpoel, supra, 151 Cal.App.4th at pp. 1449-1450; Zwirn v. Schweizer, supra, 134 Cal.App.4th at p. 1156, fn. 5; Estate of Davies, supra, 127 Cal.App.4th at p. 1173; Estate of Ferber, supra, 66 Cal.App.4th at p. 251; Genger v. Delsol, supra, 56 Cal.App.4th at p. 1428, fn. 17.)
The Court of Appeal for the Fourth Appellate District, Division Three, has identified an “important exception” to the general rule that the merits of a proposed action are not before the court on a section 21320 application. (Estate of Ferber, supra, 66 Cal.App.4th at p. 251.) In Estate of Ferber, the Court of Appeal held a determination may be made in a section 21320 proceeding whether, as a matter of law and without reference to any factual matters, a no contest clause or a provision thereof violates public policy. (Id. at pp. 251-252; see Estate of Davies, supra, 127 Cal.App.4th at p. 1173, fn. 9.) The Court of Appeal held: “If the beneficiary argues a proposed action would not violate the no contest clause because the clause, or a purportedly applicable provision of it, violates public policy, and that determination can be made as a matter of law without reference to any factual matters, the determination may be made in a section 21320 proceeding. Because the determination only involves a matter of law, the proceedings would not be protracted and minimal violence would be done to the testator’s intent to avoid litigation during probate.” (Estate of Ferber, supra, 66 Cal.App.4th at p. 251.) Our Fourth Appellate District colleagues noted, “A contrary rule makes no contest clauses virtually impenetrable to public policy attacks, something we could not countenance. [Citations.]” (Id. at pp. 251-252.)
The no contest clause at issue in Estate of Ferber provided in part, “‘If any devisee, legatee or beneficiary under this Will, or any legal heir of mine or person claiming under any of them . . . unsuccessfully requests the removal of any person acting as an executor . . . then in that event I specifically disinherit each such person . . . .’” (Estate of Ferber, supra, 66 Cal.App.4th at p. 248, italics added.) The Court of Appeal considered whether, as a matter of law, the no contest clause was valid and enforceable. (Id. at p. 252.) Estate of Ferber held: a no contest clause that purported to insulate an executor completely from court supervision would violate public policy; a no contest clause providing for forfeiture only if the complaining beneficiary is unsuccessful “casts much too great of a chilling effect on beneficiaries” (id. at p. 254); whether the beneficiary would succeed involves factual questions and cannot be determined under the safe harbor provisions of section 21320; without the protection of section 21320, few beneficiaries would risk challenging an executor’s decisions; that concern must be balanced with the public policies in favor of the validity of no contest clauses—discouraging litigation and giving effect to the testator’s intent; and “[the balance would be struck] in this instance by enforcing no contest clauses against beneficiaries who attempt to oust the executor with a frivolous challenge.” (Id. at p. 254.) The Court of Appeal explained: “This standard allows beneficiaries who believe an executor is engaged in misconduct to bring the potential malfeasance to the court’s attention without fear of being disinherited, furthering the public policy of eliminating errant executors. The beneficiaries would be deterred from bringing frivolous contests, however, which furthers the public policies of discouraging unnecessary probate litigation and supporting the testator’s intent whenever possible.” (Id. at pp. 254-255.)
More importantly, with respect to this case, the Court of Appeal in Estate of Ferber, supra, 66 Cal.App.4th at page 254held: “Determining whether a beneficiary would be successful in ousting an executor involves factual questions, foreclosing an advance ruling under section 21320. (Genger v. Delsol, supra, 56 Cal.App.4th at p. 1429.)” In other words, it could not be decided on a section 21320 petition whether the request to remove the executor would be successful. Estate of Ferber held: “The trial court should have found the clause was valid insofar as it prohibited frivolous attempts to oust [the executor], but otherwise was invalid. Whether [the beneficiary’s] challenge was frivolous involves a factual determination that would be improper for a section 21320 proceeding. (Genger v. Delsol, supra, 56 Cal.App.4th at p. 1431.)” (Id. at p. 255, italics added.)
The present no contest clause revokes the share of the estate given to or for the benefit of any beneficiary who “in any manner, directly or indirectly, contests or attacks this instrument or any provision under” the trust. The proposed petition to remove the trustee does not contest or attack the trust instrument or any of its provisions. Success on the proposed petition would not change the Sperlings’ estate plan or disturb any trust terms. (Compare, e.g., Estate of Davies, supra, 127 Cal.App.4th at p. 1174 [proposed challenge would unravel estate plan or require a reformation].) The proposed petition addresses the trustee’s conduct. It seeks to remove and replace the trustee for alleged acts in breach of her fiduciary duties—specifically: occupying trust real property without paying rent; investing in speculative internet investments; and failing to fund the qualified trust. Nothing in the language of the no contest clause prevents Stephan from asserting the trustee has breached her fiduciary duties.
With respect to the survivor’s trust alone, as a public policy matter under section 21305, the proposed petition does not amount to a contest. Section 21305 states in part: “(b) Except as provided in subdivision (d), notwithstanding anything to the contrary in any instrument, the following proceedings do not violate a no contest clause as a matter of public policy: [¶] . . . [¶] (7) A pleading regarding the appointment of a fiduciary or the removal of a fiduciary. [¶] . . . [¶] (d) Subdivision (b) shall apply only to instruments of decedents dying on or after January 1, 2001, and to documents that become irrevocable on or after January 1, 2001.” (See Hermanson v. Hermanson (2003) 108 Cal.App.4th 441, 444-446.) Mr. Sperling died on April 23, 2006. The survivor’s trust became irrevocable upon Mr. Sperling’s death. Therefore, under the plain language of section 21305, subdivisions (b) and (d), as a matter of public policy, the proposed petition to remove the trustee is not a contest of the survivor’s trust.
The trustee relies on Hearst v. Ganzi (2006) 145 Cal.App.4th 1195, 1210-1214, for the proposition the proposed petition violates the no contest clause. In Hearst, several income beneficiaries proposed to bring a petition against the trustees for fiduciary duty breach. The income beneficiaries sought a determination under section 21320 that their action would not violate the no contest clause in William Randolph Hearst’s will. Division Three of the Court of Appeal for this appellate district held the proposed petition’s fiduciary duty breach allegations conflicted with will provisions authorizing the trustees to take the very actions challenged. (Id. at pp. 1210-1211.) The court held: “The bare allegation in the Proposed Petition that the Trustees breached their fiduciary duty owed to current income beneficiaries by adhering to a dividend policy which has the effect of favoring the remainder beneficiaries over the current income beneficiaries, without more, is insufficient to state a claim for breach of fiduciary duty to overcome the no contest clause. Said allegation does not entitle the income beneficiaries to proceed with their Proposed Petition challenging the Trustees’ conduct without risking forfeiture under the no contest clause.” (Id. at p. 1211.) The court further held the proposed petition would interfere with the trust’s business operations by seeking to alter the dividend policy and conflicted with the will’s limitation on the trustees’ personal liability. (Id. at pp. 1212-1213.) Citing Estate of Ferber, supra, our Division Three colleagues concluded: “In the instant case, the proposed claims by plaintiffs clearly implicate the no contest clause. [William Randolph Hearst] in his will indicated his intent to maintain his media empire by: directing the Trustees ‘not to part with the ownership or control’ of corporate assets unless it shall in their opinion be necessary or prudent to do so’; and vesting the Trustees with broad discretion to retain corporate earnings and to enhance the corpus. Further, under the terms of the will, the Trustees are not obligated to treat the income beneficiaries and the remainder beneficiaries equally. We can make this ‘determination . . . as a matter of law without reference to any factual matters. . . .’ (Estate of Ferber, supra, 66 Cal.App.4th at p. 251.)” (Id. at p. 1214.)
Insofar as it can be argued the court reached the merits of the dispute, we respectfully disagree with Hearst. Our Division Three colleagues, in ruling on the section 21320 application, arguably determined the merits of the proposed fiduciary duty breach petition. As noted above, we cannot review the merits of the proposed petition in evaluating whether the no contest clause has been contravened. As discussed above, Estate of Ferber held: a no contest clause that purported to insulate a trustee or executor completely from court supervision would violate public policy; such a clause could be invalidated as a matter of law in a section 21320 proceeding; the no contest clause before the court provided for forfeiture only if a beneficiary unsuccessfully attempted to remove an executor; such a clause was enforceable as a matter of law to the extent that a frivolous attempt would result in forfeiture; and whether the beneficiary’s challenge was frivolous was a factual determination that could not be reached in a section 21320 proceeding. (Estate of Ferber, supra, 66 Cal.App.4th at pp. 251-255.) Hearst, unlike Estate of Ferber, did not involve a no contest clause that arguably violated public policy as a matter of law.
The trustee’s reliance on McKenzie v. Vanderpoel, supra, 151 Cal.App.4th at pages 1447-1452, is also unavailing. In McKenzie, a beneficiary filed a section 21320 application with respect to a proposed petition to modify her share of the trust by adjusting principal and income pursuant to a California statute. (Id. at p. 1447.) Division Four of the Court of Appeal for this appellate district held simply that the beneficiary’s proposed action would violate a trust’s no contest clause because it would impair the trust terms. (Id. at pp. 1452-1454.) As discussed above, the present proposed petition, if successful, would not impair the trust’s terms. It challenges the trustee’s conduct. Success on the proposed petition would not alter the trust’s provisions or the settlors’ estate plan.
In conclusion, the proposed petition alleging the trustee has breached her fiduciary duties is not a contest within the meaning of the trust’s no contest clause. The challenge with respect to the survivor’s trust is also not a contest under the plain language of section 21305, subdivisions (b) and (d). We cannot consider the merits of the fiduciary duty breach petition in ruling on the section 21320 application. There is no claim the no contest clause violates public policy as a matter of law.
IV. DISPOSITION
The January 29, 2007 order under Probate Code section 21320 is affirmed. Stephen Michael Sperling, petitioner, is to recover his costs on appeal from Wendy Norma Courtney, as trustee of the Samuel J. and Beatrice Sperling Family Trust.
We concur: ARMSTRONG, J., MOSK, J.