Opinion
A126523
08-01-2011
GREGORY F. HOFFMAN, Plaintiff and Appellant, v. PEGGY CHEN et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Mateo County
Super. Ct. Nos. PRO117501, 471633)
Gregory Hoffman (Greg) appeals from a summary judgment entered in favor of the defendants on claims that his father's October 2007 trust was void because he lacked the capacity to execute it and it was the product of undue influence. The trial court granted a motion for summary judgment or in the alternative for summary adjudication filed by Greg's sister, Marsha, after it sustained her objections to a declaration submitted by Greg's expert and other evidence Greg relied on in opposition. We conclude that the court erred in sustaining the objections to the expert declaration and the other evidence. Viewed as a whole, the evidence was sufficient to create triable issues of material fact. We therefore reverse and remand.
To avoid confusion, we will refer to members of the Hoffman family by their first names. We mean no disrespect.
BACKGROUND
The October 2007 trust was executed by Frank Hoffman shortly before his death on November 15, 2007, at age 92. Frank is survived by his adult children Greg and Marsha, and his six grandchildren. All are beneficiaries of the October 2007 Trust.
That trust is the last in a series of revocable trust agreements and amendments executed by Frank beginning in 1999. Most were prepared by attorney Thomas Barger, but an August 2007 amendment was prepared by Steven Luzaich and the October 2007 trust was prepared by Lucinda Lee. Under the trusts and amendments executed between March 1999 and April 2007, Marsha and her children always received a smaller share of Frank's assets than Greg and his children.
In August 2007, Frank executed a trust amendment prepared by Luzaich. A few days after Frank signed it, attorney Lucinda Lee met with Frank for the first time on a referral from an attorney representing Frank in a real estate dispute. The real estate lawyer had been told by Marsha that Frank had done "minimal estate planning" and needed his estate "put in order." The meeting took place at Marsha's house, and was also attended by Russell Jackson, a family friend who was doing some work for Frank as a general contractor. Jackson retrieved Frank's estate planning documents from Frank's home and delivered them to Lee, who took them to review.
Lee met with Frank again later that month and prepared a handwritten amendment to his trust whereby Frank was to designate percentages of his assets to be left in trust to Marsha and to Greg's children. The document also purported to appoint a new general partner in Hoffman Investment Company, Ltd. (HIC), Frank's longstanding business that owned and managed commercial properties. Lee also asked Frank to cross out and sign the last page of the August 2007 trust amendment prepared by Luzaich. The next day, the completed handwritten amendment was sent to Lee with notations allocating 95 percent of Frank's assets to Marsha, five percent to Greg's children, and designating Marsha as a general partner of HIC.
Following her receipt of Frank's handwritten amendment, Lee prepared a document entitled "Restatement Dated October 9, 2007, Frank Hoffman Revocable Trust Dated March 19, 1999" (the October 2007 Trust). Under the October 2007 Trust, after expenses, and a generation skipping transfer trust for the benefit of Frank's grandchildren, Greg received one percent of Frank's assets, and Marsha received 99 percent. Jackson was designated as cotrustee.
Greg's first amended complaint contested the October 2007 Trust on the grounds that it was the product of undue influence and Frank lacked testamentary capacity when it was executed. Greg also sought a declaration that even if the October 2007 Trust was valid, it was never funded because a November 1999 trust (as last amended on August 3, 2007) remained in effect and held all Frank's assets. Marsha moved for summary judgment or, in the alternative, summary adjudication. Greg's opposition was supported, in part, by the expert declaration of Dr. John Brooks who opined that "[Frank's] cognitive deficits significantly impaired [his] ability to understand and appreciate the consequences of his actions with regard to the alteration of his trust or trusts," and that "opioid dependency also made him extremely susceptible to undue influence." The court sustained Marsha's objections to the substance of Dr. Brooks's declaration and to much of the additional evidence offered by Greg. The court granted summary judgment for Marsha, and Greg timely appealed.
DISCUSSION
A. Standard of Review
We review an order granting summary judgment de novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860; Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 69.) A defendant who moves for summary judgment has the initial burden to show that a cause of action lacks merit because one or more of its elements cannot be established or it is subject to an affirmative defense. (Code Civ. Proc., § 437c, subd. (o); Aguilar v. Atlantic Richfield Co., supra, at p. 850.) If the moving papers make a prima facie showing that justifies a judgment in the defendant's favor, the burden shifts to the plaintiff to show the existence of a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co, supra, at p. 849.)
"Summary judgment is a drastic remedy to be used sparingly, and any doubts about the propriety of summary judgment must be resolved in favor of the opposing party." (Mateel Environmental Justice Foundation v. Edmund A. Gray Co. (2003) 115 Cal.App.4th 8, 17.) Thus, we view the evidence in the light most favorable to Greg and construe his submissions liberally while we strictly scrutinize Marsha's showing. (See Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768-769.) In accord with the weight of authority, we will review the trial court's rulings on evidentiary objections for an abuse of discretion. (See Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2008) [¶] 8:168, p. 8-130 (rev. #1, 2010); Powell v. Kleinman (2007) 151 Cal.App.4th 112, 122; Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694; see also Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535 [declining to "decide generally whether a trial court's rulings on evidentiary objections based on papers alone in summary judgment proceedings are reviewed for abuse of discretion or reviewed de novo"].)
A court may abuse its discretion when it takes "a very narrow and stingy view" of an expert's declaration offered in opposition to a motion for summary adjudication, instead of applying a liberal construction and resolving doubts in favor of the party opposing the motion. (See Jennifer C. v. Los Angeles Unified School Dist. (2008) 168 Cal.App.4th 1320, 1332-1333.) "This is because a defendant moving for summary judgment bears the heavy „ "burden of persuasion that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law." ' [Citation.] On the other hand, a plaintiff opposing a motion for summary judgment need only raise a triable issue of fact. [Citation.]" (Id. at p. 1333.)
B. Dr. Brooks's Declaration
Expert testimony is admissible when based on matter "of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates . . . ." (Evid. Code, § 801, subd. (b).) "So long as this threshold requirement of reliability is satisfied, even matter that is ordinarily inadmissible can form the proper basis for an expert's opinion testimony." (People v. Gardeley (1996) 14 Cal.4th 605, 618.) An expert's declaration in opposition to summary judgment need not "set forth in excruciating detail the factual basis for the opinions stated therein." (Hanson v. Grode (1999) 76 Cal.App.4th 601, 608, fn. 6; Powell v. Kleinman, supra, 151 Cal.App.4th at p. 128.) "It is sufficient, if an expert declaration establishes the matters relied upon in expressing the opinion, that the opinion rests on matters of a type reasonably relied upon, and the bases for the opinion." (Sanchez v. Hillerich & Bradsby Co. (2002) 104 Cal.App.4th 703, 718; see also Rebel Oil Co., Inc. v. Atlantic Richfield Co. (1995) 51 F.3d 1421, 1435 ["expert opinion is admissible and may defeat summary judgment if it appears that the affiant is competent to give an expert opinion and that the factual basis for the opinion is stated in the affidavit, even though the underlying factual details and reasoning upon which the opinion is based are not."])
In assessing the sufficiency of Dr. Brooks's declaration, we must consider that its intended purpose was to defeat Marsha's motion. (See Jennifer C. v. Los Angeles Unified School Dist., supra, 168 Cal.App.4th at p. 1332.) "The requisite of a detailed, reasoned explanation for expert opinions applies to 'expert declarations in support of summary judgment,' not to expert declarations in opposition to summary judgment. [Citation.]" (Ibid.)
Dr. Brooks is an Associate Professor of Psychiatry in Residence at the University of California, Los Angeles Semel Institute for Neuroscience & Human Behavior. He has a Ph.D. in cognitive psychology, and over the last 20 years has conducted extensive peer reviewed and published research in the cognitive abilities of elderly adults. He is also a physician and Diplomate of the American Board of Psychiatry and Neurology, and has "practiced psychiatry in both research and clinical settings with an emphasis on the elderly." Dr. Brooks concluded that Frank's cognitive deficits "significantly impaired [his] ability to understand and appreciate the consequences of his actions with regard to the alteration of his trust or trusts," and that he was "susceptible to undue influence," based on a number of specified factors.
Brooks's declaration discussed those factors and the facts supporting his opinion as gleaned from deposition testimony and Frank's medical records. Frank had a history of opioid dependence and was on "very high" doses of methadone at the time he signed the October 2007 Trust. He had an episode of hallucinations around that time when he saw "black mold on the walls of his home." Despite his decades as an avid chess player, Frank could not remember how to move pieces on the chessboard. Brooks considered this episode of Frank's forgetfulness to indicate that Frank had "an extreme loss of memory, likely due to advanced age and opioid dependence." Brooks also reviewed a series of e-mails that showed Frank thought he still owned a car wash business he sold seven years earlier. Finally, Frank could not understand why he was meeting with bankers when they were to be interviewed by him as potential trustees of the October 2007 Trust. It was Dr. Brooks's conclusion that Frank "was an elderly man with severe opioid dependence who, as a result of his advanced age and ongoing opioid use, had cognitive deficits" that "significantly impaired [his] ability to understand and appreciate the consequences of his actions with regard to the alteration of his trust or trusts, not only when he executed the [October 2007 Trust] but over the days and weeks prior . . . ."
Applying a liberal construction to the declaration and resolving any doubts in Greg's favor, we conclude that Dr. Brooks's opinions were adequately supported by a reasoned explanation and were not conjectural. Dr. Brooks's opinions were properly based on his experience and the facts as revealed in the medical records, depositions, and other documents produced in discovery and before the court on the motion for summary judgment. (See Jennifer C., supra, 168 Cal.App.4th at p. 1333; Powell v. Kleinman, supra, 151 Cal.App.4th at p. 129; cf. Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 761-763 [expert's syllogistic declaration stated no facts to support its conclusion]; cf. Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510 [no evidence in record supported experts' opinions regarding reason for patient's shoulder pain, and experts "assume[d] the cause from the fact of the injury"].)
Marsha contends for the first time in this court that Dr. Brooks's declaration was also inadmissible because it did not include copies of all the medical records he reviewed and relied upon. This argument was waived because it was not raised in the trial court. (In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002.) Even so, the case Marsha relies upon to support her argument is distinguishable because it considered the sufficiency of an expert declaration supporting a summary judgment motion, not one offered in opposition. Moreover, the doctor in that case based his opinion exclusively on medical records that were not before the trial court. Here, Dr. Brooks also relied upon deposition testimony submitted as part of the opposition to summary judgment. (Cf. Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 737, 742-743.) Deposition testimony and declarations from a number of witnesses also provide factual support for Greg's claim that Frank lacked testamentary capacity when he executed the October 2007 Trust.
C. Testamentary Capacity
A person who lacks the capacity to make an ordinary transfer of property also lacks the capacity to create an inter vivos trust, and generally the test for a trustor's capacity is the same as for the capacity to execute a will. (Walton v. Bank of California (1963) 218 Cal.App.2d 527, 541; Tuttle v. Bessey (1955) 137 Cal.App.2d 725, 727; Pomeroy v. Collins (1926) 198 Cal. 46, 68.) Probate Code section 6100.5, subdivision (a) provides: "An individual is not mentally competent to make a will if at the time of making the will either of the following is true: [¶] (1) The individual does not have sufficient mental capacity to be able to (A) understand the nature of the testamentary act, (B) understand and recollect the nature and situation of the individual's property, or (C) remember and understand the individual's relations to living descendants, spouse, and parents, and those whose interests are affected by the will. [¶] (2) The individual suffers from a mental disorder with symptoms including delusions or hallucinations, which delusions or hallucinations result in the individual's devising property in a way which, except for the existence of the delusions or hallucinations, the individual would not have done." "Testamentary capacity must be determined at the time of execution of the will. [Citation.] Incompetency on a given day may, however, be established by proof of incompetency at prior and subsequent times. [Citation.]" (Estate of Mann (1986) 184 Cal.App.3d 593, 602.) "The burden is on the contestant to overcome the presumption that a testator is sane and competent. [Citation.]" (Ibid.)
All further statutory references are to the Probate Code unless otherwise indicated.
Several items of evidence arguably support Dr. Brooks's conclusion that Frank's ability to understand the testamentary nature of his action was "significantly impaired" when the October 2007 Trust was planned and signed. (§ 6100.5, subd. (a)(1)(A).) Jackson noticed that Frank lost his ability to focus during his initial meeting with attorney Lee. Later that evening, Frank asked Jackson what was discussed when he met with Lee, and why another attorney was going to work on his estate. Jackson also stated that Frank's short-term memory was "totally compromised" when his pain increased, and when Frank was heavily medicated he would believe anything that people told him whether true or not. Contrary to Marsha's argument, this testimony is not a medical opinion, but simply relates Jackson's percipient observation.
When Frank was asked to re-sign retainer agreements for Lee, Jackson heard Frank say he did not know who she was representing, and thought she was somehow connected with attorney Bill Lukens, who was representing Frank in the real estate litigation. Jackson read aloud a memo to Frank from Lee. Frank was confused by it and didn't understand "why another attorney [was] getting involved where [sic] he had already made his trust . . . with Steve Luzaich." When he discussed the handwritten document prepared by Lee where Frank had completed percentages to distribute to the beneficiaries of his trust, Frank told Jackson, "This means nothing to me." Frank also told Jackson that the document was not notarized and not valid, and he did not remember designating Marsha to receive 95 percent of his assets with the remaining 5 percent going to Greg's children. According to Frank, the document was "just something [Lee] wrote," and he wanted to fire her.
The trial court sustained Marsha's objections to some of this evidence on relevancy grounds, apparently evaluating each item in isolation, without regard for its cumulative bearing on Frank's testamentary capacity. It thus erred by excluding relevant evidence, even though each piece alone was not highly probative of Frank's capacity. (See Miyamoto v. Department of Motor Vehicles (2009) 176 Cal.App.4th 1210, 12181219 [trial court abuses its discretion when it applies wrong legal standard to evaluate admissibility of evidence]; see also 1 Witkin, Cal. Evidence (4th ed. 2000) Circumstantial Evidence, § 26, p. 352 ["Circumstances that, taken singly, seem to afford no logical inference as to the issue, may, when considered with other circumstances, give rise to such an inference. Thus, the test of relevancy must not be too strictly applied to . . . any . . . single item of evidence."])
There is also evidence that when Frank signed the October 2007 Trust, Jackson observed that "Frank wanted to talk about anything but what was to be discussed," and attorney Lee "would then try to lure him . . . back on track." Although Jackson left before the documents were signed, Frank did not seem focused during the meeting. When Jackson went over the October 2007 Trust with Frank a few days later, Frank told him it contained several provisions that did not embody his wishes, which were instead accurately reflected in an amendment prepared by attorney Steve Luzaich a few days before attorney Lee entered the picture. Frank also told Greg that the trust amendment prepared by Luzaich represented his desired estate plan, and that he wanted to leave Marsha an annual allowance "so she could live comfortably, but did not want to leave his estate to her because he was concerned that she would waste all of the money. He also did not trust her to have any money left for her children after her death."
There was also evidence that Frank's ability to "understand and recollect the nature and situation of [his] property" was impaired. (§ 6100.5, subd. (a)(1)(B).) During the week before the October 2007 Trust was signed, Frank did not remember that HIC no longer owned a carwash it had sold seven years earlier, and he did not understand why bankers had come to see him even though they were to be interviewed by Frank so he could choose a corporate cotrustee. A few days before the October 2007 Trust was signed, Frank also called Greg to ask him how HIC made its money.
About this same time, Jackson said that Frank became obsessed with the idea that Greg had reportedly acquired $20 million. He wondered aloud repeatedly about where the money had come from, and asked Jackson whether Greg had stolen the money from HIC or sold some of the company's holdings without telling him. Jackson said that when Lee first met with Frank and created the handwritten document for Frank to complete, she told Frank that Greg had $20 million in the bank, two homes, and more money than Frank. While the trial court sustained Marsha's hearsay objection to Lee's statement about Greg's assets, Greg correctly points out that this evidence was offered not for its truth but instead to show Frank's state of mind when he devised the October 2007 Trust.
Marsha contends all of Greg's evidence was irrelevant or insignificant, and that evidence in support of her motion established Frank's testamentary capacity when he executed the October 2007 Trust. In support of her claim of Frank's competence Marsha relies on several facts. Lee "thought Frank appeared to be of sound mind that day" and "was satisfied he was competent to sign [the October 2007 trust]." Jackson said that Frank deleted a particular charitable bequest before he signed the October 2007 Trust. Frank also saw his regular physician, Dr. Daniel Glatt, the day before the trust was signed and Glatt's records contain no indication he had any concerns about Frank's capacity at that time. One of Frank's caregivers said that during the month the trust was signed Frank knew who his children and grandchildren were, that he owned two homes, and he knew who the attorneys were who came to his house. Also, Greg acknowledged that around the time the October 2007 Trust was signed, Frank was responsive in some respects during their telephone conversations, and that Frank had "good times and bad times" with respect to his mental faculties.
In light of the conflicting evidence proffered by Greg, Marsha's evidence is not sufficient to conclusively establish that Frank was competent as a matter of law when he executed the October 2007 Trust. Moreover, the cases Marsha relies upon were decided after trial, not on summary judgment, and none of them include a similar constellation of circumstances. (Cf. Estate of Fritschi (1963) 60 Cal.2d 367, 371 [insufficient evidence of drug-induced incompetence where none of contestants' medical witnesses were asked for a competency opinion]; Estate of Mann, supra, 184 Cal.App.3d at pp. 602 [decedent's doctor testified decedent was alert when will was executed and understood the nature and implications of her act]; Estate of Selb (1948) 84 Cal.App.2d 46, 59-60 [insufficient evidence testatrix suffered from insane delusion that affected disposition of her estate]; Estate of Hamburger (1932) 126 Cal.App. 455, 458, 463 [no evidence decedent was under influence of drugs at time he executed will, and decedent's doctor testified administered drugs were not sufficient to have any effect upon his competence].)
Because the admissible evidence, including Dr. Brooks's declaration, was sufficient to create a dispute of material fact as to Frank's testamentary capacity when Frank executed the October 2007 Trust, the judgment in Marsha's favor on Greg's claim that Frank lacked capacity must be reversed.
Greg's request for judicial notice of the legislative history of Senate Bill 730 (Stats. 1995, ch. 842), The Due Process in Competence Determinations Act, is denied as moot.
D. Undue Influence
"California courts have long held that a testamentary document may be set aside if procured by undue influence. [Citations.]" (David v. Hermann (2005) 129 Cal.App.4th 672, 684.) The principle is now codified in section 6104. (Rice v. Clark (2002) 28 Cal.4th 89, 96.) "Undue influence is pressure brought to bear directly on the testamentary act, sufficient to overcome the testator's free will, amounting in effect to coercion destroying the testator's free agency. [Citations.]" (Ibid.) Clear and convincing evidence is required. (Conservatorship of Davidson (2003) 113 Cal.App.4th 1035, 1059, disapproved on another ground in Bernard v. Foley (2006) 39 Cal.4th 816, fn. 14.) While the burden of proof is on the contestant (§ 8252, subd. (a)), direct proof of undue influence is not required; it may be established by circumstantial evidence and legitimate inferences from the facts. (Estate of Bucher (1941) 48 Cal.App.2d 465, 474; Estate of Abert (1949) 91 Cal.App.2d 50, 60-61; see also Hagen v. Hickenbottom (1995) 41 Cal.App.4th 168, 187 [contestants' inability to provide direct evidence of undue influence was "explicable" as contestants "certainly would not have been present" during decedent's estate-planning decisions].) " '[I]nfluence which reaches the stage of being undue influence is not at all the same in every case. In one case it takes but little to unduly influence a person; in another case much more . . . . Accordingly, every case must be viewed in its own particular setting.' [Citations.]" (Estate of Sarabia (1990) 221 Cal.App.3d 599, 607.)
Section 6104 provides: "The execution or revocation of a will or a part of a will is ineffective to the extent the execution or revocation was procured by duress, menace, fraud, or undue influence."
The courts have considered a number of factors as indicia of undue influence: " '(1) The provisions of the will were unnatural. . . . (2) the dispositions of the will were at variance with the intentions of the decedent, expressed both before and after its execution; (3) the relations existing between the chief beneficiaries and the decedent afforded to the former an opportunity to control the testamentary act; (4) the decedent's mental and physical condition was such as to permit a subversion of his freedom of will; and (5) the chief beneficiaries under the will were active in procuring the instrument to be executed.' " (Estate of Lingenfelter (1952) 38 Cal.2d 571, 585, quoting Estate of Yale (1931) 214 Cal. 115, 122.)
In addition to the support it provides for reversal of summary judgment on the claim attacking Frank's capacity, Dr. Brooks's declaration also supports reversal of summary judgment on the undue influence claim. His conclusion that Frank "was susceptible to undue influence due to" the combined effects of Frank's medication, advanced age, and physical condition is supported by other facts in the record. Marsha apparently recruited attorney Lee through another lawyer because Frank had done "minimal estate planning" and she wanted to ensure Frank's estate was "put in order". The bequests in the October 2007 Trust were significantly different from all of Frank's previous dispositions. For the first time, in the handwritten change Frank expressed a desire to leave 95 percent of his property to Marsha, five percent to Greg's children and none to Greg. This disposition stands in stark contrast to Frank's previous trusts. Under Frank's trust that was executed on March 19, 1999, another revocable trust executed on November 4, 1999, and a series of amendments, Marsha and her children always received a smaller percentage of Frank's assets than Greg and his children. Beginning with a January 2002 amendment there were no outright gifts to Greg, instead each amendment established a trust for the benefit of Greg and his children that received from 56 to 80 percent of the residue of the trust estate. Attorney Barger, who prepared the documents, stated that "[o]ther than his desire to provide an income to Marsha it was always Frank's desire to provide for his grandchildren." The last amendment Barger prepared was dated April 26, 2007, and placed two thirds of the residue into a trust to benefit Greg and his children leaving one third for the benefit of Marsha and her children.
In August 2007, attorney Steven Luzaich prepared an amendment to Frank's November 1999 trust that allocated 80 percent of the residue to Greg and his children, and 20 percent to Marsha and her children. Annual distributions to Marsha were capped at $250,000. Frank told Luzaich he wanted to be sure Marsha was financially secure, but he was worried about her getting too much money. Luzaich stated: "Frank . . . had pretty clear ideas about how he wanted things divided and didn't want Marsha to change them."
While these changes in testamentary disposition are not alone sufficient to establish undue influence, they have probative significance when considered in light of other facts in the record. Frank made the October 2007 trust when Marsha was intimately involved with his care, managing his medication and attending to him on a daily basis. There were also certain limitations imposed on Frank's ability to have contact with Greg and interact with Greg and his family. All of this evidence considered together raises a dispute over the material facts surrounding the undue influence claim. Interpreting Dr. Brooks's declaration liberally and drawing all reasonable inference in Greg's favor, we conclude he has raised a triable issue of material fact as to whether "the relations existing between the chief beneficiar[y] and the decedent afforded to the former an opportunity to control the testatmentary act" and "the decedent's mental and physical condition was such as to permit a subversion of his freedom of will . . . ." (Estate of Lingenfelter, supra, 38 Cal.2d at p. 585.)
Marsha argues there is no evidence she brought pressure to bear directly on the testamentary act, because she did not personally hire attorney Lee to draft the October 2007 Trust, and she was not present when it was executed. But Division One of this Appellate District has held that evidence a person actively participated in procuring the preparation or execution of a testamentary instrument "is essential to proof of undue influence only if the court relies on the presumption of undue influence to shift the burden of proof to the proponent of the testamentary instruction." (David v. Hermann, supra, 129 Cal.App.4th at p. 684.) Greg does not rely on that presumption and neither do we. Even absent direct evidence of procurement, other factors in combination may support a finding of undue influence. (See id. at pp. 684-685 [proponent's arguments relying on single factor of procurement failed to show lack of substantial evidence as a matter of law].) Marsha's brief does not address the holding of David v. Herman.
The cases Marsha relies upon all involve trials where insufficient evidence was presented to uphold a jury verdict of undue influence, and their facts differ significantly from this case. (Estate of Llewellyn (1948) 83 Cal.App.2d 534; Estate of Ventura (1963) 217 Cal.App.2d 50; Estate of Lingenfelter, supra, 38 Cal.2d 571.) In Estate of Llewellyn, the testator vigorously resisted any interference in his affairs, declared his intention to dispose of his property as he saw fit, and repeatedly informed his attorney that he wished to leave everything to the devisee accused of undue influence. (Estate of Llewellyn, supra at pp. 540-542, 564, 567.) In Estate of Ventura, the court emphasized that the person who allegedly exercised undue influence did not personally benefit from the will, and the court concluded the variance from the testator's previous will or expressed testamentary intentions, standing alone, was not sufficient to defeat a motion for a directed verdict. (Estate of Ventura, supra, at pp. 59-61.) In Estate of Lingenfelter, the testatrix expressed her wishes in a holographic will before discussing it in detail with her attorney and evidence of activity by the accused beneficiary was "entirely lacking." (Estate of Lingenfelter, supra at pp. 582, 586.) However, two dissenting opinions concluded the evidence was sufficient to sustain the jury's verdict in favor of the will contestant, who was the secretary of the testatrix's husband. (Id. at pp. 578, 587-593.) Each of these cases presents a unique constellation of circumstances that must be evaluated on their own terms, and none is so similar to this case to warrant summary adjudication for Marsha on the undue influence cause of action. (See Estate of Sarabia, supra, 221 Cal.App.3d at p. 607 [" 'every case must be viewed in its own particular setting' "].)
Moreover, activity in procuring the execution of a will may be established by circumstantial evidence, even when the beneficiary is excluded from an attorney's consultations with the decedent. (See Estate of Gagliasso (1957) 150 Cal.App.2d 65, 69.) It is not necessary that the beneficiary be present to exert undue influence over the testator if the circumstances are such that pressure may be exerted by other means. (See Estate of Baker (1982) 131 Cal.App.3d 471, 483 [fact that proponent of will was not present at its execution does not as a matter of law overcome an inference of undue influence drawn from other evidence].)
Marsha suggests Frank was trying to equalize the distribution of his estate between his children, based on a statement attributed to Lee by Jackson. According to Jackson, Lee said Frank told her that Greg "had already benefitted from gifts over the years of limited-partnership interest and a conversion of a limited interest into a general interest in HIC." But Jackson reported that view was expressed by Lee, not by Frank. Moreover, that explanation does not address the timing of the change in Frank's estate plan, or the dramatic reduction in his previously generous provision for Greg's children. Marsha also claims the October 2007 Trust was the product of Frank's love and affection because she cared for him at the end of his life. But Greg testified he was also actively involved in organizing Frank's care, and he and Frank had "a very close relationship" and spoke with each other "virtually every day." While no single fact standing alone may have been sufficient to establish the existence of undue influence in this case, the evidence as a whole was sufficient to demonstrate a triable issue of material fact and Marsha was not entitled to summary adjudication on that cause of action.
At the time of his death, Frank owned 1 percent of HIC as a general partner and 48 percent as a limited partner, Greg owned 1 percent of HIC as a general partner and 36.5 percent as a limited partner, Marsha owned 7.5 percent as a limited partner, and the remaining 6 percent was owned by Frank's six grandchildren in separate trusts with Greg as trustee.
E. Number of Frank's Trusts
Greg also contends that even if the October 2007 Trust is valid, Marsha is merely the beneficiary of an unfunded trust because the October 2007 Trust recites that it is restating Frank's March 19, 1999 trust while the documents of title to Frank's assets refer to a trust executed on November 4, 1999. Greg contends he raised a triable issue of fact that Frank intended to create two separate trusts, but he cites no evidence that would support such a determination on this record. The intent of the trustor must be ascertained from the whole of the trust instrument. (Scharlin v. Superior Court (1992) 9 Cal.App.4th 162, 168; see also § 21102, subd. (a) [transferor's intent controls legal effect of instrument's dispositions].) Nothing suggests Frank intended to exclude any of his assets from the October 2007 Trust. Article 7 specifically gives the trustees power over Frank's interest in HIC, described as Frank's "most valuable asset," and directs the trustee to continue the real estate litigation he was involved in at his death as the trustee deems best.
Nor does extrinsic evidence create a triable issue of material fact as to Frank's intent. (See Wells Fargo Bank v. Marshall (1993) 20 Cal.App.4th 447, 453 [extrinsic evidence admissible to interpret trust instrument]; § 21102, subd. (c) [extrinsic evidence may be used to determine transferor's intent].) Barger, the attorney who drafted both 1999 trust documents, testified the November trust replaced the unfunded March 1999 trust. When Barger later sent Frank letters that listed his current estate planning documents, he did not include a March 19, 1999 trust. Frank never told Greg or Jackson that he had two trusts, and there is evidence that Frank did not attribute particular significance to the date his trust was executed. A few months after he transferred his residence and his interest in HIC to his November 4, 1999 Trust, Frank signed an amendment to a certificate of limited partnership for HIC as "trustee for the Hoffman Revocable Trust (U/T/A 3-19-99)." It is also undisputed that it was Lee, not Frank, who chose the date of the earlier trust that was specified in the October 2007 Trust. Lee's declaration states Frank told her he wanted the October 2007 Trust to supersede all his prior testamentary documents and to govern the disposition of all his assets. The evidence before the court creates no triable issue of fact that Frank intended to have more than one trust. Marsha was therefore entitled to summary adjudication on Greg's cause of action for declaratory relief to that effect.
DISPOSITION
The judgment is reversed. On remand, the trial court is not precluded from granting summary adjudication in favor of Marsha on the third cause of action, for declaratory relief relating to the number of Frank's trusts.
Siggins, J. We concur: McGuiness, P.J. Pollak, J.