Opinion
B294843
05-04-2020
MARCELLE BROOMALL, Plaintiff and Respondent, v. STEPHANIE FIORENTINO CORVINO, as Trustee, etc., et al., Defendants and Appellants.
Law Offices of Michael S. Overing, Edward C. Wilde and Michael S. Overing; Law Offices of Vikram Brar and Vikram Brar for Objectors and Appellants. Seifer, Murken, Despina, James & Teichman; Law Offices of Martin Glickfeld and Martin Glickfeld for Petitioner and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BP138839/BP148704) APPEAL from an order of the Superior Court for Los Angeles County, Maria E. Stratton and Michael Small, Judges. Affirmed. Law Offices of Michael S. Overing, Edward C. Wilde and Michael S. Overing; Law Offices of Vikram Brar and Vikram Brar for Objectors and Appellants. Seifer, Murken, Despina, James & Teichman; Law Offices of Martin Glickfeld and Martin Glickfeld for Petitioner and Respondent.
Stephanie Fiorentino Corvino and Alexandria Fiorentino appeal from an order of the probate court granting the Probate Code section 17200 petition filed by their aunt, Marcelle Broomall, to determine the validity of a purported trust (and amendments thereto) executed by Marcelle's mother (Stephanie's and Alexandria's grandmother), Theresa Fiorentino. The court (Judge Maria E. Stratton, presiding) found that although Theresa had the capacity to execute the trust and its amendments, the documents were invalid due to undue influence exerted on Theresa. The court (Judge Michael Small, presiding) subsequently denied Stephanie's and Alexandria's motion for reconsideration in which they argued, based upon new case law, that Marcelle does not have standing to bring a section 17200 petition challenging the validity of the trust.
Further undesignated statutory references are to the Probate Code.
We will refer to the members of the Fiorentino family by their first names for clarity and ease of reference. We mean no disrespect.
In their appeal, Stephanie and Alexandria contend the probate court applied an incorrect legal standard and failed to make proper findings in concluding there was undue influence. They also contend that, as a matter of law, there was sufficient evidence to overcome the presumption of undue influence. Finally, they contend that Marcelle has no standing to sue the trust. None of these contentions has merit. Accordingly, we affirm the order granting Marcelle's petition.
BACKGROUND
The trust at issue in this case was created in August of 2012. Theresa, the trustor, was 94 years old at that time. Her husband, Carlo Fiorentino, had passed away in 1999. They had two children: Marcelle and Joseph Fiorentino, who were 74 and 72 years old, respectively, in 2012. Marcelle did not have any children. Joseph had three daughters: Deneane Fiorentino-Stevenson, Stephanie, and Alexandria.
For many years, and during the time at issue in this case, Theresa, Marcelle, and Joseph lived near each other; Marcelle lived six blocks from Theresa, and around the corner from Joseph. Deneane also lived nearby, in a house Theresa had purchased for her. Stephanie lived in Valencia, a half-hour to an hour drive away, and Alexandria lived in Alta Loma, an hour or more drive away. A. Family Relationships From 1999 to 2012
Throughout Marcelle's adult life, she and Theresa quarreled, and at times would not speak to each other. Those quarrels usually were short-lived, lasting no more than two or three weeks. After Carlo died, until January 2012, Marcelle visited Theresa most days, often multiple times per day; she brought food and helped Theresa with errands and her financial affairs. Toward the end of 2010, Marcelle began to notice changes in her mother. Theresa canceled her subscription to the Los Angeles Times, even though she had always looked forward to working the puzzles in the paper. She stopped watching her soap operas. She also lost track of thousands of dollars of dividend checks until they were more than 180 days old; Marcelle had to write letters to each company to have the checks reissued. Theresa was also a victim in several mail fraud schemes, and had been sending checks to several of the companies involved in the schemes. As a result, Marcelle went through Theresa's mail every day to pull out any mail related to fraudulent schemes.
Joseph's daughter Deneane also visited Theresa frequently after Carlo died, and they became very close. She ran errands for Theresa, and also accompanied her to various appointments. Joseph's other daughters, Stephanie and Alexandria, on the other hand, rarely (if ever) saw Theresa during the period between Carlo's death and 2012. In fact, Theresa told James Broomall (Marcelle's ex-husband, who remained very close to Theresa) that she did not want to have anything to do with Stephanie and Alexandria.
Stephanie, who had lived with Theresa and Carlo for a time in the early 1990s following her divorce, sent a letter to Theresa in 1998 about Theresa having an affair. Theresa was very upset about the letter. She and Stephanie had a complete falling out, and Stephanie was not allowed to attend Carlo's funeral or other family functions.
Joseph, who was Theresa's favorite child, developed kidney problems in 2005 or 2006 and was on dialysis. In May 2011, he fractured his hip. When he was released from a convalescent care facility in late 2011, he no longer could walk and moved in with Deneane, who became his primary caretaker. Stephanie and Alexandria started visiting their father more frequently—3 or 4 times a week—in late 2011, and they often visited with Theresa on the days they visited Joseph. B. Changes in Family Relationships in 2012 and 2013
When Marcelle visited Theresa, she used a key that Theresa had given her to get into the front gate. In March 2012, she arrived for a visit, but her key did not work because the lock had been changed. Marcelle tried to talk to Theresa, but Theresa refused to talk to her from mid-March until August 23, 2012.
Although there was testimony that Theresa said that she had changed the locks to her house, James Broomall, who had known Theresa for more than 40 years, testified that Theresa did not change the locks, and that they were changed by someone else. The probate court found James' testimony was credible.
Marcelle's ex-husband, James, also saw his relationship with Theresa drastically change. When Theresa's husband Carlo was dying, he asked James to take care of Theresa, and James promised he would. From that point on, he and his second wife visited Theresa every Saturday, and sometimes also during the week. Like Marcelle, he had a key to the front gate that Theresa had given him. At some point in 2012, he and his wife came to visit, but the key did not work. He rang the bell, but no one answered. He called Theresa on the phone, but got the answering machine. While he was trying to get into the house or contact Theresa to make sure she was alright, Stephanie's and Alexandria's cars were parked on the street in front of the house, so he knew they were inside. He and his wife tried to visit several times after that day, but they were able to see her only a couple of times after March 2012 until Theresa's death in December 2012; once Theresa got a caretaker, the caretaker would let them in to see her when Stephanie and Alexandria were not there.
Stephanie and Alexandria visited Theresa three or four times a week in 2012. At some point, they changed Theresa's mail delivery so her mail would be delivered to a post office box rather than to Theresa's house. Only Stephanie and Alexandria were authorized to pick up Theresa's mail from the post office box. Stephanie and Alexandria also changed the locks on Theresa's house again, so only they had access to the house. C. Creation of 2012 Trust and Amendments
In April 2012, estate planning attorney Angela Hawekotte received an email from Michael Overing, an attorney representing Stephanie and Alexandria, indicating that he would be referring the Fiorentino "group" to her, and telling her that "[t]here's a lot at stake." Deneane called to make an appointment for Theresa, and Theresa met with Hawekotte for the first time on May 28, 2012. Theresa was 94 years old, and (unbeknownst to Hawekotte) had recently been diagnosed with dementia by her longtime physician.
Theresa had assets worth more than $3 million.
Theresa told Hawekotte that she wanted to redo her trust. Her previous trust had been created in 2001, and had been prepared by her longtime attorney, Alan Ross. Although Theresa did not give Hawekotte a copy of the 2001 trust at that meeting, Hawekotte understood that Marcelle was the main beneficiary of the 2001 trust and was a co-trustee.
Theresa could not remember the name of the attorney at that first meeting; she later gave his name to Hawekotte.
Joseph had tax issues, so he avoided having assets in his name; Theresa and Marcelle understood that Marcelle would use the trust's assets to take care of him.
At this first meeting, Theresa told Hawekotte that she did not want Marcelle as a trustee of the new trust, and did not want Marcelle to get anything. Instead, Theresa said that she wanted everything to go to Joseph, with Deneane getting 50 percent as a contingent beneficiary, and Stephanie and Alexandria each getting 25 percent as contingent beneficiaries.
Theresa met with Hawekotte again on June 19, 2012 at Theresa's home. At that meeting, Theresa told Hawekotte that she and Marcelle did not speak, and that Marcelle was trying to get a conservatorship over Joseph so she could gain access to all of his assets. She also told Hawekotte that Marcelle was robbing her blind, and she would never forgive her. Hawekotte did not know whether any of that was true, but she did not believe that Theresa was delusional. Theresa also told Hawekotte that she wanted to leave everything to Deneane after Joseph died, and that she wanted Deneane to be trustee of the trust.
Theresa said that Marcelle was robbing her blind almost every time she met with Hawekotte.
At their next meeting, on July 16, 2012, Theresa changed the percentages for the contingent beneficiaries. She told Hawekotte that she wanted Deneane to get 40 percent, and Stephanie and Alexandria to each get 30 percent, with the hope that all three would take care of Joseph. She wanted Deneane to be the first successor trustee, with Stephanie and Alexandria as the next successor co-trustees.
Theresa again changed the contingent beneficiary percentages at the next meeting, on August 2, 2012. She told Hawekotte that she wanted Deneane to get twice as much as Stephanie and Alexandria—therefore, Deneane would get 50 percent and Stephanie and Alexandria each would get 25 percent. She said that Deneane was like a daughter to her and had been taking, and would continue to take, good care of Joseph. She also told Hawekotte she wanted to leave one dollar to Marcelle.
On August 21, 2012, Theresa executed the Theresa Fiorentino Revocable Trust dated August 21, 2012 (the 2012 trust). In the trust document, she revoked all prior declarations of trust, including the 2001 trust. She specifically bequeathed the sum of one dollar to Marcelle. All of the remaining assets were to be distributed to Joseph in the event he was living at the time of Theresa's death; if not then living, the assets would be distributed 50 percent to Deneane, 25 percent to Stephanie, and 25 percent to Alexandria. The trust provided: "It is SETTLOR's intention to specifically disinherit and make no provisions for her daughter, MARCELLE T. BROOMALL other than the specific bequest of One Dollar ($1.00) in Paragraph 2. hereof." The trust named Deneane as the first successor trustee, and Stephanie and Alexandria as the next successor co-trustees.
On August 23, 2012, two days after the 2012 trust was executed, Deneane, Stephanie, and Alexandria were appointed co-conservators over Joseph. Two and a half weeks later, Deneane sent an e-mail to Hawekotte, telling her that now that Stephanie and Alexandria had been appointed co-conservators of their father, they were going after their grandmother, acting as though they cared about her and trying to get her to do a trust, even though they had not been around for 20 years. Hawekotte responded that same day, September 10, 2012. She had been aware that there might be a challenge to the trust, and had suggested to Theresa on September 8 that she be examined by a psychiatrist to determine her mental capacity. In her response to Deneane's e-mail, she told Deneane that she had called Dr. Gregory Cohen's office and told him to expect a call from Deneane to set up an appointment for a "mini-mental exam" of Theresa. She said that Theresa had agreed to go see him. Over the next few days, Deneane sent a series of e-mails to Hawekotte, expressing her concern about Stephanie and Alexandria exercising control over and brainwashing Theresa.
Deneane was unable to get an appointment with Dr. Cohen.
On September 17, 2012, Hawekotte received a phone call from Theresa; Joseph, Stephanie, and Alexandria were with Theresa during the call. Theresa told Hawekotte that she wanted to make some changes to the 2012 trust. They arranged to meet on September 21.
At the September 21, 2012 meeting, at Theresa's house, Theresa called Deneane "a bitch," and said that Deneane had hollered at her about her driving. She said that Stephanie and Alexandria knew that she should not drive, but they also knew she drives beautifully so they do not say anything. She said that she wanted to cut Deneane off completely. She told Hawekotte that she raised Stephanie and Alexandria (although Theresa consistently forgot Alexandria's name during her conversations with Hawekotte), and that they loved her. She complained that she gave Deneane everything, but that Deneane was not respectful towards her. She no longer wanted Deneane as the first successor trustee, and instead wanted Ann Sugi, who had taken care of Theresa's sister, as the successor trustee.
Theresa's physician, Dr. Vicente Villa, had limited Theresa's driving to a 10-block area after he received reports that she got lost while she was driving.
Joseph called Theresa during her meeting with Hawekotte. Although Hawekotte could not hear what Joseph was saying, Hawekotte noted that Theresa said to him, "I'm not changing everything around." After Theresa's conversation with Joseph, Theresa decided to give Deneane a 20 percent contingent share, and to give Stephanie and Alexandria 40 percent contingent shares. At the end of the meeting, Hawekotte told Theresa that she would make the appointment with Dr. Cohen for her.
Theresa did not go to see Dr. Cohen. Instead, on September 25, 2012, Stephanie and Alexandria brought Theresa to see Dr. Patel, who was their father's doctor (not a psychiatrist), and asked her to conduct a competency evaluation. During the visit, Dr. Patel discovered that Theresa had extremely high blood pressure, and told Stephanie and Alexandria that they needed to immediately take Theresa to her regular doctor, Dr. Villa. Dr. Patel called Dr. Villa, and Dr. Villa agreed to see Theresa immediately, on an emergency basis.
Stephanie and Alexandria brought Theresa to Dr. Villa, and told him that their aunt (Marcelle) was trying to get custodial care or conservatorship of Theresa, and there was a court request for information regarding Theresa's mental competency. Dr. Villa told them that he was only concerned about getting Theresa's blood pressure under control during the visit, and that the issue of her competency would have to be addressed at a later time. In his notes of the patient visit, under "Assessment/Plan," Dr. Villa indicated that Theresa needed to continue her medications to control her forgetfulness, and that she may need to be seen by a neurologist and/or psychiatrist to determine her mental competence.
There is no evidence in the record that Marcelle was trying to get a conservatorship over Theresa, nor was there evidence of any court request for a competency determination, at that time.
On October 22, 2012, Theresa called Dr. Villa and asked to be seen right away. According the Dr. Villa's notes, she was brought there by "her 2 nieces" (it appears he meant her two granddaughters). She told Dr. Villa that she was very upset about her daughter trying to take over her life, and she was crying when describing events of the previous two days. During the appointment, Dr. Villa attempted to administer a M.M.S.E, or "mini mental exam," but Theresa refused to comply. Dr. Villa advised Theresa to be with her "nieces" for a while until she could calm herself down.
Three days later, on October 25, 2012, Theresa executed a first amendment to and complete restatement of the 2012 trust. As Theresa had instructed during her September 21, 2012 meeting with Hawekotte, the amendment changed the percentages for the contingent beneficiaries, with Deneane getting 20 percent, and Stephanie and Alexandria each getting 40 percent. The amendment also changed the first successor trustee to Ann Sugi.
In late 2012, Victor Baron, a family friend, was visiting with Theresa; Stephanie and Alexandria were there. Theresa was discussing her estate plan. She showed Hawekotte's bill to Baron and asked him what he thought about it. Baron asked to see the estate plan, but Theresa said she did not have a full copy of it (Hawekotte kept the original documents). Baron, who is a C.P.A. and works on probate and trust accountings, told her that Hawekotte's bill seemed very high for what was done. Baron suggested that Theresa speak with Vikram Brar, an estate planning attorney he knew through his probate work.
Theresa met with Brar three times in December 2012. At all three meetings, Theresa told him that she wanted to completely disinherit Deneane and leave Stephanie and Alexandria as the contingent beneficiaries, each with 50 percent.
One of Brar's meetings with Theresa took place on December 12, 2012. Stephanie and Alexandria brought her to the meeting. That same day, Brar received a letter from Dr. Villa dated December 10, 2012.
Theresa had had an appointment with Dr. Villa on December 10, 2012. According to Dr. Villa's notes from that appointment, Theresa's main concern was a "tug-of-war" between her daughter and two granddaughters "as to rights of conservatorship of her person and the agent of her advanced health directive." He wrote that it was his opinion that Theresa was mentally capable of making that choice (i.e., regarding whether or not to have a conservator or an advanced health directive). That same day, Dr. Villa signed a letter addressed "To whom it may concern" that stated: "Based on my personal evaluation of Theresa Fiorentino and my administration of the MMSE, it is my professional opinion that Theresa has testamentary capacity to execute estate planning documents, including a trust amendment." At trial, Dr. Villa testified that he did not write the letter, although he signed it. He stated that he could not make a determination of competency based upon a mini mental exam, and that he never would use the term "testamentary capacity." Upon questioning by the probate court, he admitted that even though he signed the letter, the conclusion stated in the letter was not one that he actually arrived at.
Following Theresa's December 12, 2012 meeting with Brar, Brar prepared an amendment to the 2012 trust, which Theresa signed on December 20, 2012. That amendment changed the contingent distribution as Theresa requested, so that Stephanie and Alexandria each were 50 percent contingent beneficiaries. The amendment also stated: "The Trustor intentionally disinherits and makes no provision for Marcelle T. Broomall or Deneane Stevenson." A month later, Brar found out that the trust he had been working from when he drafted the December amendment was actually the October restatement of the August 2012 trust. Although he believed that the December amendment was valid, just to be sure, he prepared another amendment entitled "Second Amendment to the Theresa Fiorentino Revocable Trust dated 8/21/12 Restated and Amended on October 25, 2012 and Further Amended on December 20, 2012." The text of the amendment, which was signed on January 30, 2013, was identical to the text of the December amendment.
On March 1, 2013, without Brar's knowledge or assistance, Theresa executed a deed transferring her house from the 2012 trust to Stephanie and Alexandria. Stephanie and Alexandria took Theresa to a notary to have her signature notarized. Shortly after Theresa signed the deed, she resigned as trustee of her trust and Ann Sugi became the trustee. The deed was not recorded until April 15, 2013, after Theresa resigned as trustee.
Before Theresa resigned as trustee, Theresa met with Brar and told him that she was "under a constant barrage by Deneane and Marcelle" to get her to change the 2012 trust. She asked if there was some way to make the 2012 trust final so it could not be changed again. Brar told her that she could make it irrevocable, but warned her that it would be a big task if she later changed her mind, because she would have to create a new trust and transfer all her assets from the 2012 trust to the new trust. Theresa told him that was what she wanted, so Brar prepared, and on March 26, 2013, Theresa signed, a third amendment to the 2012 trust, making it irrevocable.
On April 15, 2013, Marcelle met with Brar to discuss a petition Brar had filed seeking the return of an income property that Theresa had deeded to another person; Marcelle had overseen the management of that property. Marcelle had by this time seen a copy of the 2012 trust because it had been attached as an exhibit to the petition. She expressed her displeasure at the fact that she had been disinherited, and wanted to know why. She told Brar that she was aware that Theresa said that she had taken Theresa's diamond necklace, Krugerrands, and other items, but she said that Theresa was wrong.
Marcelle went to Brar's office with Theresa a week later. Marcelle told Brar that she and Theresa had talked, and Theresa wanted to be fair and split her assets equally between Marcelle and Joseph. After speaking with Marcelle, Brar met with Theresa. Theresa seemed confused, and could not explain what changes she wanted, so Brar suggested that she think about it and come back when she was feeling better.
On May 20, 2013, Marcelle called Brar, with Theresa on the line, and said that Theresa had changed her mind regarding the 2012 trust. Brar told them that he needed to meet with Theresa alone before any changes could be made. The next day, Deneane called Brar, with Theresa on the line, and said that Theresa wanted changes to the 2012 trust. Brar said that he needed to meet with Theresa in person.
At around the same time as the phone calls, Brar met with Theresa regarding a petition for conservatorship. Theresa had nominated an organization, Life Services, to be her conservator. She told Brar that, given the tensions in the family, she believed her affairs should be handled by a professional.
Deneane and Marcelle brought Theresa in to meet with Brar on May 28, 2013. Deneane and Marcelle told Brar, in Theresa's presence, that Theresa's mind had been poisoned, and that she had been misinformed about Marcelle stealing from her. They said that Theresa now wanted to change the 2012 trust and provide for them. Brar spoke with Theresa—outside the presence of Deneane and Marcelle, but in the presence of his associate "because this was getting a little complex, so [he] wanted to have somebody else there"—and found that Theresa was confused and not very lucid. He told Deneane and Marcelle that he was not comfortable having Theresa sign any documents that day because he did not believe she had the capacity to do so at that time. This was Brar's last meeting with Theresa.
Theresa died on December 17, 2013. Joseph died in 2014. D. Petition to Invalidate the 2012 Trust
On January 22, 2014, Marcelle filed a petition under section 17200 to determine the validity of the 2012 trust and amendments, and to impose a constructive trust. The petition asked the probate court to rescind and nullify the 2012 trust and amendments on the grounds of incapacity and undue influence.
The petition named as respondents the then-trustee of the 2012 trust, Ann Sugi, Joseph, and Stephanie and Alexandria, individually and as conservators of the person and estate of Joseph. By the time of trial, Ann Sugi had resigned as trustee, and Joseph had passed away.
The petition alleged that Theresa had lacked capacity to contract for several years before her death. It cited two incidents to show her incapacity: (1) in February 2012, a lawsuit Theresa had filed against her neighbor had to be dismissed due to her loss of memory; and (2) Theresa had to resign as trustee in 2013 so that the successor trustee could prosecute a section 850 petition to invalidate a deed Theresa executed under undue influence.
With regard to undue influence, the petition alleged that Stephanie and Alexandria (1) isolated Theresa by changing the locks to her house and excluding visitors; (2) exercised financial control over Theresa by having her sign a power of attorney, and then using that power to close Theresa's bank accounts; and (3) exercised mind control over Theresa by exhorting, flattering, and tricking her.
The petition asked the court to declare the 2012 trust and amendments void, and to declare that Stephanie and Alexandria hold Theresa's assets for persons entitled to distribution of Theresa's estate. E. Trial
Trial was held in March 2018 before the probate court. The court heard testimony from Marcelle, Stephanie, Alexandria, and others who were close to Theresa and/or the Fiorentino family; Dr. Villa; Hawekotte and Brar; and two experts—Efi Rubinstein, a clinical neuropsychologist and forensic evaluator with the mental health court, and James Spar, a professor at U.C.L.A. School of Medicine, Department of Psychiatry and Biobehavioral Sciences. The court also considered excerpts from the deposition of Alan Ross, the attorney who represented Theresa and other members of the Fiorentino family for many years and drafted the 2001 trust.
The deposition excerpts were not read into the record; instead, a highlighted copy of the deposition transcript was provided to the probate court. That transcript was not included in the record on appeal.
1. Capacity and Undue Influence Evidence
Both Hawekotte and Brar testified about their observations of Theresa. Hawekotte testified that Theresa presented as extremely well groomed, very bright, and with a salty sense of humor. Hawekotte "had no concerns at all about [Theresa's] capacity." She testified that she recommended having her evaluated by Dr. Cohen because Theresa had said that Marcelle was litigious; Hawekotte wanted to get a psychological evaluation "to make it clear [Theresa] knew exactly what she was doing." Brar testified that, as a probate attorney, he always looks for signs of incapacity. He stated that he found no signs of incapacity in Theresa when he first met her, as she appeared very healthy for her age, well groomed, and "didn't skip a beat discussing anything." It was not until the end of May 2013 that he first saw warning signs of incapacity. Neither Hawekotte nor Brar were aware of any undue influence.
Dr. Villa, who is a (now retired) doctor of internal medicine and not a specialist in psychiatry or geriatrics, saw Theresa regularly during the relevant time period and provided more details regarding Theresa's mental state. He testified that when he saw Theresa on May 10, 2012, he observed that her memory was impaired and she kept repeating herself. As a result, he determined that dementia was developing. During her visit on September 4, 2012, Theresa was stating things clearly, but he had received reports that she was getting lost while driving. At Theresa's December 10, 2012 visit, Dr. Villa found that her dementia had improved—she answered questions clearly and there was continuity to her answers. He explained that Theresa's dementia was at a very early stage, and was somewhat situational at that time; i.e., she tended to have more dementia issues when she was upset. Later, the dementia was less situational, and he observed it became more fixed.
Dr. Rubinstein opined (based upon Theresa's medical records, the deposition testimony of various witnesses, and legal records) that Theresa had significant cognitive impairment during the period from January 2012 to June 2013. She testified that Theresa appeared to have a progressive decline over time, but it was hard to know when it started. She concluded that there was not enough evidence to state whether Theresa had testamentary capacity when she signed the 2012 trust in August 2012 or any of the subsequent amendments.
With regard to undue influence, Dr. Rubinstein testified that Theresa had significant vulnerability to undue influence. She identified various factors that made Theresa vulnerable, including: (1) her cognitive impairment made her highly vulnerable; (2) she had several medical conditions that resulted in a significant level of dependency and functional impairment; and (3) there was a high level of family discord, which makes people with cognitive impairment more vulnerable. Dr. Rubinstein also testified about common kinds of persuasive and psychological techniques, or "red flags," that are suggestive of undue influence. Those include: (1) control over the person (e.g., restricting access to other people, changing locks, restricting communications); (2) diverting correspondence; (3) the use of affection (i.e., a change in the amount of affection someone is lavishing on the person); and (4) creating a siege mentality causing a significant change in relationships.
Stephanie's and Alexandria's expert witness, Dr. Spar, reviewed Theresa's medical records and the deposition testimony of Dr. Villa, Hawekotte, and Brar; he did not review the deposition testimony of the parties or others because he did not believe that testimony would materially affect his opinion. Based upon his review, he opined that Theresa had mild cognitive impairment, but that she had testamentary capacity when she executed the trust documents in August 2012 through January 2013. He also opined that Theresa had some vulnerability to undue influence due to her cognitive impairment, but he declined to opine on other factors that could affect vulnerability because he did not have enough information about them. He agreed, however, that when determining vulnerability to undue influence he also looks at the person's dependency, because that would increase his or her vulnerability to undue influence.
2. Probate Court's Findings and Decision
Following the close of evidence and the submission of written closing arguments, the probate court issued a tentative statement of decision. The court set out a detailed summary of the facts and made express credibility determinations. The court found that Marcelle failed to carry her burden to establish that Theresa lacked testamentary capacity, and therefore the 2012 trust was not void on that ground. Addressing undue influence, the court found that Marcelle presented sufficient evidence to raise a presumption of undue influence, and that Stephanie and Alexandria failed to produce sufficient credible competent evidence to overcome that presumption. Therefore, the court tentatively granted the petition and found the 2012 trust was invalid at the time it was executed.
After Stephanie and Alexandria submitted objections to the tentative statement of decision, which the court overruled, the court adopted the tentative statement of decision as its final statement of decision.
3. Motion for Reconsideration
A month before the probate court entered its final order (but after the court had issued its tentative statement of decision), the Fifth Appellate District issued its decision in Barefoot v. Jennings (2018) 27 Cal.App.5th 1, in which the court held that only a currently-named beneficiary or trustee may make a petition under section 17200, and therefore a person who no longer was a named beneficiary did not have standing to challenge the validity of a trust under that statute. Four days after the probate court in the present case issued its final order, Stephanie and Alexandria filed a motion for reconsideration, arguing that, based upon this new case law, Marcelle did not have standing to bring her petition because she was disinherited under the trust and therefore was not a beneficiary.
The probate court denied the motion for reconsideration on several grounds, including that the California Supreme Court had granted review of the Fifth District's opinion, and that the probate court did not find that opinion persuasive. Stephanie and Alexandria timely filed a notice of appeal from the order granting Marcelle's petition.
The notice of appeal also stated that Stephanie and Alexandria appealed from the order denying their motion for reconsideration. That order is not appealable; it is reviewable, however, on an appeal from the underlying appealable order. (Code Civ. Proc., § 1008, subd. (g).)
DISCUSSION
As noted, Stephanie and Alexandria contend on appeal that: (1) the probate court applied an incorrect legal standard in finding there was undue influence; (2) the court failed to make factual findings sufficient to support a presumption of undue influence; (3) sufficient evidence was presented to overcome the presumption of undue influence; and (4) Marcelle has no standing to sue the trust. A. Legal Standard for Finding Undue Influence
Stephanie and Alexandria contend the probate court did not apply the proper legal standard when it found that Theresa had been subject to undue influence, arguing that the court (1) failed to give due weight to the presumption in favor of testamentary documents; (2) substituted its own judgment for Theresa's expressed intent; and (3) confused general influence with undue influence. In making this contention, they ignore the basis for the court's determination and misrepresent the court's statements by taking them out of context.
Stephanie and Alexandria are correct that, "[a]s a general proposition, California law allows a testator to dispose of property as he or she sees fit without regard to whether the dispositions specified are appropriate or fair. [Citations.] Testamentary competence is presumed. [Citations.]" (Estate of Sarabia (1990) 221 Cal.App.3d 599, 604 (Sarabia).) However, "[t]his presumption can be overcome if it is shown that the testator was affected by undue influence." (Ibid.)
Undue influence may be established in two ways. The person challenging the testamentary instrument may submit direct evidence of such influence, or circumstantial evidence "'showing . . . a number of factors which, in combination, justify the inference'" of undue influence. (David v. Hermann (2005) 129 Cal.App.4th 672, 684.) The challenging party has the burden of proving undue influence in such a case. (Ibid.; § 8252.)
But there is a second method for establishing undue influence, in which the burden of proof is shifted. As the Supreme Court has explained: "Although a person challenging the testamentary instrument ordinarily bears the burden of proving undue influence (§ 8252), this court and the Courts of Appeal have held that a presumption of undue influence, shifting the burden of proof, arises upon the challenger's showing that (1) the person alleged to have exerted undue influence had a confidential relationship with the testator; (2) the person actively participated in procuring the instrument's preparation or execution; and (3) the person would benefit unduly by the testamentary instrument." (Rice v. Clark (2002) 28 Cal.4th 89, 96-97.) "If this presumption is activated, it shifts to the proponent of the [testamentary instrument] the burden of producing proof by a preponderance of evidence that the [testamentary instrument] was not procured by undue influence. It is for the trier of fact to determine whether the presumption will apply and whether the burden of rebutting it has been satisfied." (Sarabia, supra, 221 Cal.App.3d at p. 605.)
In the instant case, the probate court conducted its analysis under the second method of establishing undue influence, finding that Marcelle had established the three elements necessary to give rise to a presumption of undue influence. Thus, contrary to Stephanie's and Alexandria's assertion, the court did not fail to give due weight to the presumption in favor of testamentary documents. Rather, the presumption in favor of testamentary documents was, in the words of one court, "neutralized" by the presumption of undue influence. (Sarabia, supra, 221 Cal.App.3d at p. 605.)
Stephanie and Alexandria similarly ignore the probate court's reasoning, and thus take the court's statements out of context, when they assert the court substituted its judgment for Theresa's when the court found that Theresa had to have had "justifiable reasons" for cutting Marcelle out of the trust. Their assertion is based upon the following language in the court's statement of decision: "The court recognizes Theresa and Marcelle had a history of quarrels and reconciliations in their mother/daughter relationship that cannot now be used to prove that Theresa had justifiable reasons for cutting Marcelle out of the trust. . . . Thus the court declines to use this gritty mother/daughter relationship as the rationale for Theresa's decision to exclude Marcelle from her bounty." Stephanie and Alexandria argue that this language shows the court improperly weighed the trustor's reasons for her decision. It does no such thing.
The quoted language comes from the court's analysis of the third element needed to give rise to a presumption of undue influence, i.e., that the person (or persons) alleged to have exerted undue influence would benefit unduly (or, as the court stated, "unduly profit") from the testamentary instrument. In that context, the court observed it would not have been unusual for Theresa to provide more for Joseph than Marcelle, in light of Joseph's infirmities. But it found that the dramatic change in Theresa's estate plan—from leaving all of her assets to Marcelle (who had taken care of Teresa for decades) in the 2001 trust, to creating a new trust that entirely disinherited Marcelle while adding grandchildren who had been estranged and absent for more than a decade—established the undue benefit element. In the language cited by Stephanie and Alexandria (with the addition of the language they omitted), the court acknowledged that the relationship between Theresa and Marcelle had been one with filled with quarrels. However, it declined to give weight to those quarrels in determining whether Stephanie and Alexandria unduly benefited from the testamentary instruments. The reason: because "[f]ighting with each other was their normal way of relating to each other" for many years. As the trier of fact, the court was empowered to weigh the evidence in determining whether Marcelle satisfied the elements giving rise to a presumption of undue influence. (Sarabia, supra, 221 Cal.App.3d at p. 605 ["It is for the trier of fact to determine whether the presumption will apply"].) The court did not apply an incorrect standard.
Neither did the probate court confuse general influence with undue influence. Once again, in making this argument, Stephanie and Alexandria ignore the court's actual analysis. They contend that the court's citation to evidence of their involvement with Theresa showed general influence rather than undue influence. But they ignore that the court's citation to that evidence was for the purpose of establishing the first element needed to raise a presumption of undue influence, i.e., that the person (or persons) alleged to have exerted undue influence had a confidential relationship with the testator. While on its own this evidence might show only general influence, when combined with evidence of that person's (or persons') active participation in procuring the testamentary instrument and their undue benefit from the instrument, it gives rise to a presumption that the instrument was the result of undue influence. (Rice v. Clark, supra, 28 Cal.4th at pp. 96-97.) That is what the probate court found in this case. B. Findings to Support Presumption of Undue Influence
Stephanie and Alexandria argue the probate court's findings were insufficient to support each of the elements necessary for the presumption of undue influence to arise. We disagree.
On appeal, the standard for determining whether the probate court's factual findings are sufficient to satisfy the elements for the undue influence presumption is the same as in any civil action: "All conflicts [in the evidence] must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the judgment if possible. When two or more inferences can be reasonably deduced from the facts, the reviewing court lacks power to substitute its deductions for those of the [probate] judge." (Estate of Larendon (1963) 216 Cal.App.2d 14, 19.) "The question whether the evidence adduced by a party who has the burden of proof carries the required weight is for the trier of fact and not the court of review." (Estate of Gelonese (1974) 36 Cal.App.3d 854, 863.) With this standard in mind, we address the evidence supporting the probate court's findings as to each element.
1. Confidential Relationship
"'A confidential relationship exists when trust and confidence are reposed by one person in the integrity and fidelity of another.' [Citation.] It is not necessary 'that there be an extended period of business or accommodation transactions or dealings between persons in order for a confidential relationship to be established between them.' [Citation.]" (Estate of Sanders (1985) 40 Cal.3d 607, 615.) Such a relationship "'is particularly likely to exist when there is a family relationship.'" (Ibid.)
In finding there was a confidential relationship between Stephanie, Alexandria, and Theresa, the probate court cited the following: (1) as of January 2012, Stephanie and Alexandria were visiting Theresa more often than ever before and were taking Theresa to the doctor; (2) Theresa had authorized Stephanie and Alexandria to pick up her mail at the post office, which the court found was a significant sign of trust, given Theresa's belief that her mail was being stolen by Marcelle; (3) Stephanie and Alexandria had changed the locks to Theresa's home; and (4) Stephanie and Alexandria were assisting Theresa with her grocery shopping and bill paying during the six months immediately preceding the execution of the 2012 trust, while Marcelle had no access to her mother.
Attempting to show insufficient evidence to support the court's finding of a confidential relationship, Stephanie and Alexandria take each cited fact separately, parse each into several separate facts, and declare that none of those facts, taken separately, establishes a confidential relationship. That, of course, is not the approach we must take when reviewing a court's findings for sufficiency of the evidence. Instead, we look at all of the court's factual findings together, and the evidence supporting them, and determine whether any reasonable trier of fact could conclude that Stephanie and Alexandria were in a confidential relationship with Theresa at the time the 2012 trust and its amendments were executed.
In essence, the facts the court cited are that Theresa entrusted Stephanie and Alexandria with most of the important, and confidential, aspects of her life: her medical care, her mail, access to her home, and paying her bills. There is evidence in the record to support all of those facts.
Stephanie herself testified that she and Alexandria took Theresa to see Dr. Patel in an attempt to get a competency declaration. She also testified that she and Alexandria took Theresa to see her regular physician, Dr. Villa. Stephanie also testified that delivery of Theresa's mail was changed from delivery to Theresa's home to delivery to a post office box, and that she and Alexandria were given permission to pick up Theresa's mail from the post office box.
As far as access to Theresa's home, Stephanie and Alexandria both testified they visited with Theresa in her home frequently after January 2012, while Marcelle and James Broomall testified that, although they regularly visited Theresa (and each had keys to her gate) before March 2012, both were denied access to Theresa's home after the locks were changed, particularly when Stephanie and Alexandria were there, and they rarely were able to see Theresa after that.
With regard to paying Theresa's bills, Stephanie and Alexandria argue that the only evidence to support this cited fact is testimony from Dr. Rubinstein, Marcelle's expert witness. Dr. Rubinstein testified about the factors that made Theresa vulnerable to undue influence. In discussing one factor—Theresa's level of dependency and functional impairment—Dr. Rubinstein noted that Stephanie testified in her deposition that she was helping Theresa with her finances by setting up online banking, paying Theresa's bills, looking at her bank statements, and going through her mail; Dr. Rubinstein also noted that she believed Alexandria also had testified that she had helped Theresa with paying her bills.
Stephanie and Alexandria argue on appeal that Dr. Rubinstein's uncorroborated testimony regarding a fact of the case is not substantial evidence of that fact. They are correct. (People v. Sanchez (2016) 63 Cal.4th 665, 684.) Nevertheless, the probate court reasonably could infer, based upon Marcelle's testimony that she used to assist Theresa with her finances before March 2012, and the evidence that, after March 2012, Stephanie and Alexandria were the only people who regularly had access to Theresa's home and handled Theresa's mail, that Stephanie and Alexandria had taken over Marcelle's role in assisting Theresa with her financial affairs.
Based upon all of this evidence, and reasonable inferences that could be drawn from the evidence, we conclude that substantial evidence supports the probate court's finding there was a confidential relationship between Stephanie, Alexandria, and Theresa.
2. Active Participation
Active participation in the preparation of a testamentary instrument "may be established by inference, that is, by circumstantial evidence." (Estate of Gelonese, supra, 36 Cal.App.3d at p. 865.) It is established "'where the evidence is of such a nature as to warrant the inference that the [instrument] was the direct result of the influence exerted for the purpose of procuring it, and was not the natural result of the uncontrolled will of the testatrix.' [Citations.] In determining whether undue influence was exerted by the proponent upon the testator in the execution of [the testamentary instrument], the [trier of fact] is not limited to the actual time the [instrument] was executed, but may consider facts bearing upon undue influence both before and after execution so long as they tend to show such influence when the [instrument] was executed. . . . '"That the alleged wrongdoer had power or ability to control the testamentary act may be established by a variety of circumstances, such as control over the decedent's business affairs, dependency of the decedent upon the beneficiary for care and attention, or domination on the part of the beneficiary and subserviency on the part of the deceased. Unless explained, a transfer of property by the decedent to the alleged wrongdoer has a tendency to establish the charge of undue influence."'" (Estate of Baker (1982) 131 Cal.App.3d 471, 481-482.)
In the present case, the probate court directly addressed the element of active participation in a single paragraph. In that paragraph, the court cited the following: (1) Stephanie and Alexandria were on the phone with Theresa when she spoke to her attorney about wanting to make changes that would benefit them; (2) they were trying to get Theresa examined for mental competence to protect their interests in the trust; (3) they were regularly communicating with Dr. Villa about Theresa's mental state; and (4) on one occasion Dr. Villa had to tell them that getting Theresa's high blood pressure under control took priority over examining her mental competence. Stephanie and Alexandria argue that these facts are insufficient to establish they actively participated in the procurement of the 2012 trust. These specific facts, however, are not the only factual findings made by the probate court that relate to this element.
For example, the court wrote in its statement of decision: "The court also recognizes that the testimony of several witnesses established Theresa was a stubborn, hard-headed independent woman who rarely changed her mind once it was made up. Here, however, untrue to her make-up, once Stephanie and Alexandria came back into her life, Theresa became a malleable indecisive woman, changing her mind every few days or weeks about her estate plan. She began to act for the benefit of those upon whom she was reliant, now that her daughter was shut out of her home. Interestingly, her newfound love for and desire to benefit her granddaughters corresponded to the exact time period when the granddaughters were her primary caretakers."
Regardless whether all of those facts are sufficient to support a finding of active participation, we find there is substantial evidence in the record as a whole from which the probate court reasonably could conclude that Stephanie and Alexandria actively participated in the procurement of the 2012 trust. First, there was evidence that in March 2012, Stephanie and Alexandria, who had been estranged from Theresa for more than a decade, were visiting Theresa three or four times a week, while Marcelle and James Broomall, who had been regularly visiting and taking care of her, were completely shut out. Stephanie and Alexandria also had Theresa's mail redirected to a post office box to which only they had access, and changed the locks on Theresa's doors. In other words, Stephanie and Alexandria exercised significant control over Theresa's contact with others.
Second, although Theresa had an attorney who had represented her and her family for many years and had prepared an earlier trust for her, in May 2012 she went to an attorney (Hawekotte) who had been referred to her by Stephanie's and Alexandria's attorney. Thus, the attorney who prepared the 2012 trust had no understanding of the family's history.
Third, although Hawekotte recommended that Theresa be taken to a psychiatrist for a mental competency evaluation, Stephanie and Alexandria took her instead to their father's kidney doctor for that examination. When that doctor told them that Theresa needed to see her regular doctor immediately due to her high blood pressure, they took her to see him but, disregarding her health emergency, urged him to conduct a mental competency evaluation. In other words, they sought to protect their interests in the trust over Theresa's health and well being.
Fourth, they misrepresented to Theresa's doctor that Marcelle was trying to get a conservatorship over Theresa and that a court had requested information regarding Theresa's mental competency for that proceeding. Ultimately, they had the doctor sign a letter (which he did not write) stating that Theresa had testamentary capacity, although the doctor had not made such a determination.
Fifth, there was expert witness testimony that Theresa was particularly vulnerable to undue influence due to her cognitive impairment, her medical conditions that made her more frail and dependent, and family discord.
Finally, the 2012 trust, after it was amended, disinherited the two people—Marcelle and Deneane—who had been a constant presence in Theresa's life and helped take care of her for decades, and left everything (after Joseph died) to the two granddaughters who, for more than a decade, had not been a part of Theresa's life.
Taken as a whole, this evidence supports a reasonable inference that Stephanie and Alexandria isolated Theresa, overpowered her frail mind, and, as part of their scheme to take all (or a majority) of Theresa's assets, actively participated in procuring the 2012 trust.
3. Undue Benefit
The "undue benefit" element for a presumption of undue influence is established by showing that the testamentary instrument treats the testator's children (or grandchildren) unnaturally, or differently than her previously-expressed desires. (See, e.g., Estate of Garibaldi (1961) 57 Cal.2d 108, 113; Estate of Gelonese, supra, 36 Cal.App.3d at p. 866.) The probate court in this case found the 2012 trust was unnatural because it left Theresa's entire estate to Joseph, and then to Stephanie and Alexandria, even though Stephanie and Alexandria had been completely estranged from Theresa for many years, and it cut out Marcelle despite the earlier trust that had left everything to Marcelle.
Stephanie and Alexandria contend there was insufficient evidence to support the probate court's finding because Joseph was Theresa's favorite child, Theresa believed Marcelle had crippled him, and Stephanie and Alexandria had come back to help care for Joseph in 2012. But Theresa did not express her purported belief that Marcelle had crippled Joseph until March 2012, after Stephanie and Alexandria started visiting her. And while it is true that Stephanie and Alexandria had started to visit their father more frequently in late 2011 and 2012, it was Deneane who for many years had been helping to take care of Joseph (who suffered from Parkinson's Disease, diabetes, and renal failure before he broke his hip), yet the final 2012 trust completely disinherited her.
Joseph fell getting to Marcelle's car when she picked him up to take him to court in Fresno in May 2011. Joseph's assistant and Marcelle helped Joseph get up and put him in the car. Joseph said he was okay, so Marcelle drove them to the courthouse in Fresno. When they got there, Marcelle thought that Joseph was not doing well after the drive, so she had him stay in the car while she went into the courthouse to talk to the judge. When she finished, she drove him back to Glendale and took him to the hospital. He had fractured his hip. He had surgery, then was in a convalescent home for several months for rehabilitation. He returned home (to Deneane's house) in November 2011, but no longer could walk unaided.
In any event, it does not matter if there was evidence that could support a finding contrary to the probate court's finding. Our review is confined to determining if there was evidence sufficient to support what the probate court actually found. We conclude that the evidence of Theresa's sudden change of plan to leave her entire estate to the two granddaughters from whom she had been estranged for more than a decade is sufficient to support the court's finding that Stephanie and Alexandria would benefit unduly from the 2012 trust. C. Sufficiency of the Evidence to Overcome the Presumption
Stephanie and Alexandria contend that sufficient evidence was produced to overcome the presumption of undue influence. Their contention ignores the standard of review on appeal.
Once the elements giving rise to a presumption of undue influence have been established, the burden shifts to the proponent of the testamentary instrument to produce proof by a preponderance of the evidence that the instrument was not induced by the proponent's undue influence. (Estate of Gelonese, supra, 36 Cal.App.3d at p. 863.) Stephanie and Alexandria assert that testimony by Marcelle and Theresa's attorneys that Theresa repeatedly stated her intent to disinherit Marcelle is sufficient to overcome the presumption of undue influence. But "[t]he question whether the evidence adduced by a party who has the burden of proof carries the required weight is for the trier of fact and not the court of review." (Estate of Gelonese, supra, 36 Cal.App.3d at p. 863.) In this case, the probate court concluded that the attorneys' testimony that they believed Theresa was not acting under anyone's influence carried little weight in light of each attorney's admission that she or he had not probed into the relationships among the family members or into Theresa's medical condition. Under the applicable standard of review, we cannot disturb that conclusion. D. Standing to Sue the Trust
As noted, after the probate court issued its tentative statement of decision, the Fifth Appellate District issued an opinion holding that a person who is not a currently-named beneficiary of a trust did not have standing to challenge the validity of the trust under section 17200. Based upon this new case, Stephanie and Alexandria asked the court to reconsider its ruling and to deny Marcelle's petition on the ground that she lacks standing to bring a petition under section 17200. The court denied the motion on several grounds, including that the California Supreme Court had granted review of the Fifth District's opinion. On appeal, Stephanie and Alexandria continue to argue that Marcelle lacks standing under section 17200.
Subdivision (a) of section 17200 provides that "a trustee or beneficiary of a trust may petition the court under this chapter concerning the internal affairs of the trust or to determine the existence of the trust."
After briefing in this appeal was completed, the Supreme Court issued its opinion in Barefoot v. Jennings (2020) 8 Cal.5th 822 (Barefoot), reversing the Fifth District, and holding "that the Probate Code grants standing in probate court to individuals who claim that trust amendments eliminating their beneficiary status arose from incompetence, undue influence, or fraud." (Id. at p. 824.) In reaching its decision, the Supreme Court observed that "the Probate Code '"was intended to broaden the jurisdiction of the probate court so as to give that court jurisdiction over practically all controversies which might arise between the trustees and those claiming to be beneficiaries under the trust."' [Citations.] . . . [A]n expansive reading of the standing afforded to trust challenges under section 17200 'not only makes sense as a matter of judicial economy, but it also recognizes the probate court's inherent power to decide all incidental issues necessary to carry out its express powers to supervise the administration of the trust.' [Citation.]" (Id. at pp. 827-828.) Although the court relied upon an "expansive" reading of section 17200 to find the challenger in the case before it had standing based upon her having been a beneficiary of the trust before it was amended, the court noted that its holding was a narrow one; it specifically stated that it did not decide "whether an heir who was never a trust beneficiary has standing under the Probate Code to challenge that trust." (Id. at p. 825, fn. 2.)
After the Supreme Court issued its decision, we asked the parties in the present case for supplemental briefs addressing the application of that decision to this case.
In their supplemental brief, Stephanie and Alexandria argue that the Supreme Court's decision clarifies that Marcelle has no standing under section 17200 because that decision requires the petitioner to demonstrate that she will inherit under the trust if one or more amendments to the trust is set aside. They note that Marcelle alleged in her petition that the 2012 trust disinherited her and that she had standing as an intestate heir to bring her petition because Theresa's estate would be distributed through probate proceedings if the trust were invalidated. Therefore, they argue that Marcelle has conceded that, under Barefoot, she cannot bring a petition under section 17200.
In her supplemental brief, Marcelle observes that there is little difference in effect between the circumstances in Barefoot, in which the challenger was a named beneficiary in the original trust but was removed as a beneficiary in a later amendment, and the circumstances here, in which she was a beneficiary in the 2001 trust but was removed as a beneficiary when the 2012 trust revoked that earlier trust. The Supreme Court's stated rationale for its decision was that "[t]o hold other than we do today would be to insulate those persons who improperly manipulate a trust settlor to benefit themselves against a probate petition." (Barefoot, supra, 8 Cal.5th at p. 829.) Marcelle argues that, in light of this rationale, it makes little sense to distinguish between cases in which the wrongdoer accomplishes his or her goal by manipulating the trust settlor to amend an existing trust, as opposed to manipulating the settlor to revoke a prior trust and create a new one.
Marcelle's argument has great appeal. In effect, she claims that the 2012 trust provision that revoked the 2001 trust arose from undue influence, and if that provision (along with the other provisions of the 2012 trust) were set aside, she would inherit under the 2001 trust. In light of the Supreme Court's approval of "an expansive reading of the standing afforded to trust challenges under section 17200" (Barefoot, supra, 8 Cal.5th at p. 828), and its concern that the probate court be able to maintain its "'inherent power to decide all incidental issues necessary to carry out its express powers to supervise the administration of the trust'" (ibid.), it is likely the Supreme Court would find that Marcelle has standing under section 17200 to challenge the validity of the 2012 trust.
But we need not rely upon Marcelle's standing as a beneficiary under the 2001 trust, because there is a fact that neither side addressed in their supplemental briefs that brings this case within the direct holding of Barefoot: in the original 2012 trust, Marcelle was bequeathed the sum of $1.00. Thus, under the definition of "beneficiary" set forth in the Probate Code—"a person who has any present or future interest, vested or contingent" (§ 24, subd. (c))—she was a beneficiary of the original trust, and was in the same position as the challenger of the trust in Barefoot when a subsequent amendment to the 2012 trust removed the $1.00 bequest.
At oral argument, counsel for Stephanie and Alexandria argued that (1) a $1.00 bequest is a common element of a disinheritance clause and is simply an acknowledgment that the person exists, rather than a gift of a real interest in the trust; (2) even if the $1.00 bequest gave Marcelle standing as a beneficiary, she could challenge only the amendment that removed that bequest; and (3) Marcelle's petition did not allege standing as a former beneficiary of the 2012 trust. None of these arguments prevail.
First, there is no question that a bequest of $1.00 often has been used to signal a disinheritance. (See, e.g., Estate of Carroll (1956) 138 Cal.App.2d 363, 367.) Even so, such a bequest does not rule out the application of other statutory provisions to the devisee of that bequest. (Id. at pp. 365-366 [finding that $1.00 bequest did not prevent application of the anti-lapse statute to allow devisee to inherit].) In this case, the statutory provision defining "beneficiary" is clear and unambiguous. It includes anyone with a present or future interest in the trust, and is not limited to those who have more than a nominal interest. (§ 24, subd. (c).) Thus, it applies to make Marcelle a beneficiary under section 17200 and the reasoning of Barefoot.
Counsel's argument also fails because a $1.00 (or other nominal) bequest is not required to signal a disinheritance; indeed, in the December 20, 2012 amendment to the 2012 trust, which was drafted by Brar, Theresa specifically disinherits both Marcelle and Deneane without making a $1.00 (or other nominal) bequest to either of them. But most importantly, the $1.00 bequest to Marcelle in the original 2012 was not a mere signal of disinheritance. As Hawekotte testified, Theresa specifically said that she wanted to leave $1.00 to Marcelle, which Hawekotte recorded in her notes. Thus, the evidence shows that Theresa intended to, and did, make Marcelle a beneficiary—albeit a one-dollar-beneficiary—of the original 2012 trust.
Second, counsel is incorrect that if Marcelle has standing as a beneficiary, she has standing only to challenge the amendment that removed the $1.00 bequest. Section 17200 includes no such limitation. Rather, under that statute a beneficiary may bring a petition to challenge the validity of amendments to the trust or the entire trust agreement. (Cf. Conservatorship of Irvine (1995) 40 Cal.App.4th 1334, 1341 ["it is clear from viewing section 17200 as a whole that a probate court has jurisdiction over both inter vivos and testamentary trusts to entertain petitions for instructions regarding the validity (and thus, invalidity) of trust agreements or amendments"], cited with approval by Barefoot, supra, 8 Cal.5th at p. 828.)
Finally, we acknowledge, as counsel argued, that Marcelle did not allege in her petition that she has standing as a former beneficiary of the 2012 trust. But at this stage of the proceedings—after a trial, when all the facts have been established through the submission of evidence—the determination whether she has standing is based on the established facts, not the allegations of the petition. And those facts establish that she has standing under section 17200 to challenge the validity of the 2012 trust.
We note that Marcelle did allege that she was a beneficiary under the 2001 trust, and that the 2012 trust purported to revoke the 2001 trust. --------
DISPOSITION
The order granting the petition to determine validity of the 2012 trust and finding the 2012 trust invalid at the time it was executed is affirmed. Marcelle Broomall shall recover her costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
MANELLA, P. J.
CURREY, J.