Opinion
A169829
12-18-2024
Estate of HORTENSE MARIA McCLENAGHAN, Deceased. v. UMBERTO ETTORE DE PIERRI et al., Objectors and Respondents. LUCRETIA SILVANA ATTEBERY, Petitioner and Appellant,
NOT TO BE PUBLISHED
(Alameda County Super. Ct. No. 23PR042460)
DESAUTELS, J.
Lucretia Attebery appeals from the denial of her probate petition seeking to have her siblings, Umberto de Pierri and Yolanda O'Harra (together, respondents), disinherited from their mother's estate. Attebery's record on appeal omits material portions of the underlying proceedings, and her briefing fails to address relevant legal authority. Even setting aside these procedural missteps, Attebery's substantive arguments lack merit. Therefore, we affirm.
Pursuant to California Rules of Court, rule 8.124, Attebery elected to use an appendix in lieu of a clerk's transcript, and respondents submitted additional records in their appendix.
BACKGROUND
Attebery and respondents are the adult children of Hortense Maria McClenaghan. In 2011, McClenaghan executed the "Hortense Maria McClenaghan Revocable Living Trust" and pour over will (the trust), which provided for the distribution of McClenaghan's estate in roughly equal thirds between Attebery and respondents. Section 6.01 of the trust, titled "Incontestability," provided that any gift under the trust would be "void and revoked" if the beneficiary filed a claim against the estate or "call[ed] into question, before any court, the validity of this Trust Agreement." Section 6.02 of the trust, titled "Disinheritance," provided that McClenaghan "intentionally omitted to provide for any other of her heirs living at the time of her death."
An incontestability clause is also referred to as a "no contest" or "in terrorem" clause. (E.g., Donkin v. Donkin (2013) 58 Cal.4th 412, 422.) We use the terms incontestability and no contest clause interchangeably.
In 2015, McClenaghan amended the trust to allocate 65 percent of the estate to Attebery, 15 percent to O'Harra, and 20 percent to de Pierri. The 2015 amendment also stated: "Section 6.02 Disinheritance shall be deleted in its entirety and replaced with the following: N/A." The 2015 amendment did not reference or incorporate section 6.01 of the 2011 trust or otherwise contain an incontestability clause.
McClenaghan died on July 3, 2018.
De Pierri, either alone or with O'Harra, subsequently filed four actions-two probate and two civil. De Pierri filed the first action in July 2018: a probate petition seeking limited authority to distribute over $3 million in "Chevron Texaco Stocks." (Alameda County case No. RP18913775.) Initially, de Pierri asserted that McClenaghan died intestate, but the amended petition, filed on behalf of both respondents, asserted that the 2015 amended trust was "invalid" because Attebery "unduly influenced" McClenaghan.
In March 2019, de Pierri filed a civil action for financial elder abuse, alleging that Attebery failed to care for McClenaghan, "diverted" McClenaghan's funds, and "converted five real estate properties" from the trust to Attebery and her children. (Alameda County case No. RG19012752.)
In May 2019, respondents filed a separate probate petition to remove Attebery as the trustee of McClenaghan's trust. (Alameda County case No. RP19020658.) This petition was denied based on Attebery's representation "that the trust holds no assets" and therefore "there is no trust in existence."
In May 2019, respondents filed another civil action, asserting claims for financial elder abuse and elder neglect and physical abuse against Attebery and her children. (Alameda County case No. RG19019372.) This action proceeded to a court trial, and the court returned a judgment in favor of Attebery and her children on all causes of action.
We take the filing date from Attebery's briefing. Although Attebery provides the first amended complaint filed on October 1, 2019, she does not provide the initial complaint-because, according to Attebery, respondents "never served the original complaint"-or the verified second amended complaint, which was the operative complaint at trial. It appears that upon filing the first amended complaint in this action, which named Attebery's children as defendants, respondents dismissed the earlier-filed civil action against only Attebery (case No. RG19012752).
In September 2023, Attebery filed a petition for instructions that gives rise to this appeal. Attebery asserted that respondents' "filing of four actions" violated the incontestability clause of the 2011 trust. As such, based on the incontestability clause, the petition sought to allow Attebery "to determine the right of [respondents] to take as beneficiaries under the Hortense Maria McClenaghan Trust has lapsed as if [respondents] predeceased [McClenaghan] without surviving issue." The court denied Attebery's petition, rejecting her "argument that the no contest clause in the 2011 Trust applies to the 2015 Amendment," citing Probate Code section 21310, subdivision (e) and Aviles v. Swearingen (2017) 16 Cal.App.5th 485 (Aviles).
Because Attebery did not designate her petition for instructions as part of the appendix on appeal, our background comes from the court's order denying the petition.
Subdivision (e) of Probate Code section 21310 defines "protected instrument." All undesignated statutory references are to the Probate Code.
Attebery timely appealed.
DISCUSSION
Attebery raises one issue on appeal: "Whether contesting any part of a trust agreement containing the no-contest clause operates as a disinheritance." As to this question, the parties agree that our review is de novo. (Burch v. George (1994) 7 Cal.4th 246, 254; accord, Funsten v. Wells Fargo Bank, N.A. (2016) 2 Cal.App.5th 959, 973.)
As a preliminary matter, however, we address Attebery's appellate record and briefing, both of which we find inadequate. A "fundamental principle" of appellate review is that the trial court is presumed correct and the appellant, here Attebery, bears the burden of demonstrating error. (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609.)"' "A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed." '" (Id. at p. 609, quoting Gee v. American Realty &Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.)
In this appeal, Attebery fails to provide material portions of the underlying proceedings, namely, Attebery's petition for instructions, the briefing in support of her petition, and any evidence submitted by Attebery. Moreover, Attebery's briefing fails to address relevant legal authority, i.e., Aviles, cited by the trial court, and argues matters outside of the record. (Cal. Rules of Court, rule 8.204(a)(1)(B) [briefs should "support each point by argument and, if possible, by citation of authority"]; id., rule 8.204(a)(2)(C) [factual summary should be "limited to matters in the record"]; In re Hoffman's Estate (1963) 213 Cal.App.2d 635, 639 ["It is the duty of counsel to support his claim by argument and citation of authority"].)
For instance, Attebery repeatedly refers to evidence and testimony offered during the civil trial, but that evidence and testimony is not in the appellate record and, due to the inadequate appendix, we cannot determine whether it was before the trial court. Because the failure to provide an adequate record" 'requires that the issue be resolved against [the appellant],'" we affirm the denial of the petition. (Jameson v. Desta, supra, 5 Cal.5th at p. 609, quoting Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502.) Separately, and as an independent basis for affirmance, we also find Attebery's legal arguments without merit.
A no contest clause is "a provision in an otherwise valid instrument that, if enforced, would penalize a beneficiary for filing a pleading in any court." (§ 21310, subd. (c); Doolittle v. Exchange Bank (2015) 241 Cal.App.4th 529, 539.) "Such a clause essentially acts as a disinheritance device, i.e., if a beneficiary contests or seeks to impair or invalidate the trust instrument or its provisions, the beneficiary will be disinherited and thus may not take the gift or devise provided under the instrument." (Burch v. George, supra, 7 Cal.4th at p. 265.) While no contest clauses are valid under California law, they are strictly construed against forfeiture" 'so long as the condition was not prohibited by some law or opposed to public policy.'" (Donkin v. Donkin, supra, 58 Cal.4th at p. 422; § 21312.)
A no contest clause may be enforced in "only three types of claims: (1) direct contests brought without probable cause; (2) challenges to the transferor's ownership of property at the time of the transfer if expressly included in the no contest clause; and (3) creditor's claims and actions based on them, if expressly included in the no contest clause." (Fazzi v. Klein (2010) 190 Cal.App.4th 1280, 1283, fn. 2; § 21311, subd. (a).) Where, as here, the petitioner attempts to enforce a no contest clause based on a direct contest brought without probable cause, the clause applies only if the contest was to "a protected instrument or one or more of its terms." (§ 21310, subd. (b); Key v. Tyler (2019) 34 Cal.App.5th 505, 517 [the statutory definition of a direct contest "includes a 'contest that alleges the invalidity of a protected instrument or one or more of its terms' "].)
A "protected instrument" is statutorily defined as either "an instrument 'that contains the no contest clause' or an instrument that 'is in existence on the date that the instrument containing the no contest clause is executed and is expressly identified in the no contest clause, either individually or as part of an identifiable class of instruments, as being governed by the no contest clause.'" (Aviles, supra, 16 Cal.App.5th 485, 490-491, citing § 21310, subd. (e).) Absent such circumstances, a no contest clause "does not apply to future trust amendments . . . unless the amendment specifically refers to the no contest clause." (Aviles, at p. 491.)
Here, McClenaghan died in July 2018, making the 2015 trust irrevocable. However, the 2015 trust is not a "protected instrument" subject to a no contest clause: it does not contain a no contest clause, it was not in existence when the 2011 trust (containing the no contest clause) was executed, and the 2015 trust is not identified in the 2011 no contest clause. (§§ 21310, subd. (e); 21311, subd. (a).) Because the 2015 trust fails to satisfy the statutory requirements of a protected instrument, it cannot support the application of a no contest clause. (Key v. Tyler (2024) 102 Cal.App.5th 365, 379-380.)
Further, as the trial court noted, Attebery's attempt to enforce the 2011 trust's no contest clause is foreclosed by Aviles. In Aviles, Swearingen appealed from an order denying her petition to disinherit Aviles based on a no contest clause. (Aviles, supra, 16 Cal.App.5th at p. 488.) The Court of Appeal affirmed because, even though the amended trust contained "general language of incorporation of a prior trust amendment," it "did not specifically refer to a no contest clause." (Ibid.) The Aviles court expressly rejected the argument that the amended trust incorporated all other terms not expressly amended. (Id. at p. 491.) To incorporate an existing no contest clause, the court explained that section 21310, subdivision (e) requires the amendment to either set forth the no contest clause "verbatim" or "expressly refer[] to the no contest clause." (Aviles, at p. 491.)
Like Aviles, the 2015 trust does not repeat the 2011 no contest clause verbatim, nor does it refer to section 6.01 or incontestability. Thus, the 2011 no contest clause does not apply to the 2015 trust. (Aviles, supra, 16 Cal.App.5th at p. 491 ["Simply stated, the no contest clause in the second amendment does not apply to future trust amendments, such as the Third Amendment, unless the amendment specifically refers to the no contest clause"].) Because the 2015 trust is not subject to a no contest clause, we need not reach the parties' argument regarding whether respondents' filings were direct contests without probable cause.
To be certain, we note that the 2015 amendment states, "All other Terms and Conditions of the Trust remain the same." While Attebery does not argue that this language goes beyond the "general language of incorporation of a prior trust" that Aviles found insufficient, such an argument would not be successful here. (Aviles, supra, 16 Cal.App.5th at p. 488.) The statutory limitations on enforcement of no contest clauses apply "notwithstanding a contrary provision in the instrument." (§ 21314.) "This means that, if a party contests an instrument that does not [fit within the statutory definition of a protected instrument], a no contest clause will not apply, even if it appears that the transferors intended that it would." (Key v. Tyler, supra, 102 Cal.App.5th at p. 380, italics added.)
DISPOSITION
The order denying Attebery's petition is affirmed. De Pierri may recover costs of appeal. (Cal. Rules of Court, rule 8.278(a)(4).)
We concur: STEWART, P. J. MILLER, J.