Opinion
B154713. B157153. B155229. B157117.
7-31-2003
Conservatorship of the Person and Estate of ANDRONEKE K. KERR. ALEXIA CIRINO, as Trustee, etc., Plaintiff and Respondent, v. PATRICK DE SOET, Defendant and Appellant. ALEXIA CIRINO, as Trustee, etc., Petitioner and Respondent, v. PATRICK DE SOET, Objector and Appellant.
Rehm & Rogari and Joanna Rehm for Defendant and Appellant. Law Office of Paul L. Stanton, Paul L. Stanton and Randi R. Geffner for Plaintiff and Respondent. Oldman, Cooley, Leighton & Sallus and Marc L. Sallus for Conservatee Androneke K. Kerr.
INTRODUCTION
By these four consolidated appeals, defendant, appellant and objector Patrik De Soet (De Soet) seeks reversal of two trial court orders pursuant to which the trial court nullified a purported will, trust and quitclaim deed in favor of De Soet, who is not related to the conservatee, Androneke Kerr (Kerr). The trial courts orders are: (1) an order nullifying Kerrs 1995 purported revocation of Kerrs 1993 will and trust in favor of her daughters, referred to as the order for substituted judgment; and (2) an order voiding a 1995 quitclaim deed pursuant to which Kerr purportedly transferred an interest in Kerrs residential real property to De Soet, referred to as the order to restore title.
We reverse both orders. The order for substituted judgment impaired De Soets substantive rights and it was entered into by De Soets former attorney without De Soets specific authorization. We reverse the order to restore title because it was based in substantial part upon the order for substituted judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The conservatee, Androneke Kerr, was born December 9, 1926. In 1993, Kerr, a widow, established a living trust. As trustor, Kerr transferred to the living trust by grant deed her residential real property on Sun Bird Avenue, and designated herself as trustee. Kerr also executed a will and named her daughters, Alexia M. Cirino and Katina L. Nichols, as the beneficiaries under both the 1993 will and trust.
Section 2.01, article II of the 1993 Declaration of Trust, entitled "Revocation," provided: "At any time and from time to time during the life of the Trustor, the Trustor may, by serving written notice on the Trustee, revoke the trust created by this Declaration in whole or in part. Any property withdrawn from the Trust Estate by reason of any such revocation shall be delivered by the Trustee to the Trustor."
In 1995, according to De Soet, Kerr allegedly revoked the 1993 will and trust and executed a new will and trust in favor of De Soet. In addition, Kerr purportedly executed a quitclaim deed, which provided: "Androneke K. Kerr, Trustee, and Androneke K. Kerr, a widow, reserving a life estate to the grantor, an individual, hereby remise(s), release(s) and forever quitclaim(s) to Patrik L. De Soet, provided he survive, and if not then to [Kerrs daughters], equally that do survive, otherwise to their issue by representation, if not so surviving, the following described real property . . . ."
A. Estate Litigation
In 1999, Kerr suffered a debilitating stroke rendering her incapacitated. The trial court appointed Kerrs daughter, Alexio Cirino, as the co-conservator of Kerr and her estate. As co-conservator, Cirino filed a complaint against De Soet alleging that he had misappropriated Kerrs assets and that he had exercised undue influence over Kerr in obtaining the quitclaim deed in his favor. De Soet denied the allegations and requested a jury trial.
The conservatorship proceeding is Los Angeles County Superior Court Case No. SP004081.
On March 16, 2001, as successor trustee of the 1993 Kerr Living Trust, Cirino filed a "Petition to Restore Title to Real Property of Trust Estate," alleging that Kerr was incapacitated and under the influence of De Soet when Kerr allegedly executed the 1995 quitclaim deed, and that according to the 1993 trust, she had no authority to do so. The petition requested the trial court to declare the residential real property to be an asset of the 1993 trust and the quitclaim deed to be void.
The trust proceeding is Los Angeles County Superior Court Case No. SP004819. The trial court subsequently consolidated the petition to restore title to real property of the trust estate with the conservatorship proceeding.
On March 29, 2001, as co-conservator, pursuant to Probate Code section 2580, Cirino filed a petition for substituted judgment to revoke all wills and documents executed by the conservatee, Kerr, on or after January 1, 1994, and to execute a new will and trust similar to the 1993 will and trust. The co-conservator claimed the attempted 1995 revocation of the 1993 will and trust was invalid because written notice of the revocation was not served on the trustee as required by section 2.01 of the 1993 trust.
Probate Code section 2580 provides in pertinent part: "(a) The conservator . . . may file a petition under this article for an order of the court authorizing or requiring the conservator to take a proposed action for any one or more of the following purposes: [P] (1) Benefiting the conservatee or the estate . . . . [P] (b) The action proposed in the petition may include ... [P] (5) Creating for the benefit of the conservatee or others, revocable or irrevocable trusts of the property of the estate . . . . [P] (13) Making a will."
De Soet filed written objections to both petitions, arguing Kerr was of sound mind when she allegedly executed the 1995 will and trust, and the attempted revocation of the 1993 will and trust.
B. Hearing on Petition for Substituted Judgment
On May 4, 2001, the trial court orally granted the co-conservators petition for substituted judgment. The substituted judgment, entered June 14, 2001, authorized Cirino, as the co-conservator of Kerrs estate, to revoke all wills and other documents executed by Kerr, the conservatee, on or about January 1, 1994, including the purported 1995 revocation of the 1993 will and trust.
During oral argument, the court asked De Soets counsel whether De Soet had any objections to the stipulated judgment, at which point the following exchange occurred: "[De Soets counsel]: I dont think I do have an objection. I have a concern and the concern is that if this in any way prejudices my clients claim to title of the primary assets of the estate, which is the real property. [P] [The Court]: I dont think it does. [P] [De Soets counsel]: Then Im satisfied. [P] [The Court]: I was concerned and thats why I raised this issue, that if it did in any way, it should be [continued] to be considered along with other trial matters . . . ."
C. Trial on Petition to Set Aside the Quitclaim Deed and Restore Title
On August 15, 2001, the trial court commenced trial on the civil action and the co-conservators petition to restore title in the real property to the 1993 trust. Raising non-jury issues, the trial court first heard the co-conservators petition to restore title.
The co-conservator asserted that as to the petition to restore title, no testimony was necessary because the quitclaim deed was invalid based upon the 1993 trust declaration and the quitclaim deed itself. The co-conservator argued the quitclaim deed constituted an improper conveyance of property from the trustee under the terms of the 1993 trust because Kerr had not complied with the formalities of the 1993 trust. As quoted above, section 2.01 of the 1993 trust required that any property withdrawn from the 1993 trust by a subsequent revocation of that trust must first be "delivered" from the trustee to the trustor. The co-conservator asserted that there was no evidence that legal title was ever delivered to Kerr, as trustor, from Kerr, as trustee, when Kerr, as trustor, attempted to execute the 1995 will, trust and quitclaim deed.
De Soet responded, however, that the 1993 trust had been revoked by the 1995 trust revocation documents. The co-conservator responded that the 1995 trust revocation documents had been nullified by the June 14, 2001 order granting the substituted judgment. De Soets new counsel, who did not represent him at the May 4, 2001 hearing on the petition for substituted judgment, replied that she had not seen the June 14, 200 order for substituted judgment. The trial court stated that it did not remember the June 14, 2001 order and suggested the parties discuss the order during the noon recess.
De Soets counsel read into the record part of a document which she represented was the 1995 revocation of the 1993 will and trust, entitled "Notice of Cancellation and Revocation," which apparently provided: " Androneke Kerr does hereby desire to cancel and revoke the documents described herein. " In addition, on appeal, De Soet claims there was competent admissible evidence that in 1995, Kerr, as trustor, canceled and revoked the 1993 grant deed pursuant to which Kerr, as trustor, transferred legal title in the real property to the 1993 living trust. In other words, De Soet suggests there is a dispute as to whether Kerr, as trustor, had legal title to the real property in 1995, when she allegedly attempted to revoke the 1993 will and trust and execute the quitclaim deed in favor of De Soet.
Following recess, De Soets attorney informed the trial court that De Soet knew nothing about the June 14, 2001 order and that he never discussed it with his former attorney. Counsel for the co-conservator responded that the substituted judgment was entered in open court with De Soet present. He also stated that the quitclaim deeds validity was not affected by the order, and that issue was expressly reserved for this trial. The trial court invited De Soet to obtain a transcript to determine the scope of the counsels agreement regarding the June 14, 2001 order.
At the co-conservators request, the court then took judicial notice of the 1993 trust declaration, the 1993 grant deed transferring the property to the trust, and the 1995 quitclaim deed. The co-conservator argued that based upon these three documents, the 1995 quitclaim deed was invalid. Overruling De Soets objections without prejudice, the trial court also granted the co-conservators request for judicial notice of the June 14, 2001 order for substituted judgment.
The trial court found that based upon the June 14, 2001 order for substituted judgment, Kerr did not revoke the 1993 trust and will. The court then found that because the conservatee, Kerr, did not revoke the 1993 trust and did not comply with section 2.01 of the 1993 trust, the 1995 quitclaim deed was invalid. The trial court determined that Kerrs Sun Bird property was not subject to any future interests by De Soet. In its order, the trial court explained: "The purported gift of the Trusts property and the Quitclaim Deed referred to below (which by its terms and as conceded on the record by Patrik De Soet was without any consideration) violated the express terms of the Trust and was and is voidable as a purported transfer of the Trusts said real property . . . ." On August 31, 2001, the trial court entered the order granting the petition to restore title of the real property to the trust estate in favor of Kerrs daughters.
Specifically, the trial court explained: "Im absolutely persuaded that you cant do this given the factual circumstances without revoking the 1993 trust in its entirety, and Im persuaded that when the court invalidated the 1995 trust revocation and was simply a 1993 trust, and youre bound by the trust provisions and the constraints set forth in the trust including article 2 and 2.01."
D. Post-Hearing Motions to Set Aside Orders
1. Motions for New Trial
On September 26, 2001, De Soet filed motions for a new trial from the order for substituted judgment and the order restoring title. By declaration, De Soet claimed under oath that he was not present for the May 4, 2001 hearing and that he did not authorize his attorney to enter the substituted judgment. De Soet claimed that because the order for substituted judgment affected his substantial rights without his authority or consent by nullifying the 1995 revocation of the 1993 will and trust, that order must be reversed.
De Soet also claimed, which he reiterates on appeal, that the order restoring title was based upon the order for substituted judgment. According to De Soet, because the order for substituted judgment must be reversed, so must the order restoring title. The trial court never set the new trial motions for hearing, which were deemed denied 60 days later. (Code Civ. Proc., § 660.)
2. Motions to Vacate
On January 9, 2002, pursuant to Code of Civil Procedure section 473, subdivision (d), De Soet filed separate motions to vacate the order for substituted judgment and the order restoring title on the same grounds as the motions for new trial. De Soet submitted the declaration of his former attorney, Joseph Rosenblit, in which Rosenblit declared that he did not consult De Soet, nor obtain De Soets consent, before or after agreeing to the substituted judgment nullifying the 1995 trust, will and purported revocation of the 1993 trust and will. The trial court denied De Soets motions to vacate.
De Soet filed timely notices of appeal from the order approving the substituted judgment, the order granting the petition to restore title to real property, and the order denying his motion to vacate.
CONTENTIONS
De Soet contends: (1) the order for substituted judgment is void because it impaired substantial rights without authorization; (2) the order for substituted judgment did not revoke the purported 1995 revocation of the 1993 trust; (3) the conservatee, Kerr, complied with the 1993 trust revocation requirements; (4) the quitclaim deed was valid and it complied with the 1993 trust; and (5) the trial court abused its discretion by denying the motions to vacate.
STANDARD OF REVIEW
We review de novo the trial courts determination of questions of law. "Where the meaning of writings is in dispute, in the absence of conflicting evidence, the question is one of law, and . . . the reviewing court will give the writing its own independent interpretation. . . . [Citations.]" (Stratton v. First Nat. Life Ins. Co. (1989) 210 Cal. App. 3d 1071, 1084, 258 Cal. Rptr. 721.)
In addition, we review any implied or express factual findings pursuant to the substantial evidence test. (Hermosa Beach Stop Oil Coalition v. City of Hermosa Beach (2001) 86 Cal.App.4th 534, 549.) Finally, an order denying a motion to vacate pursuant to Code of Civil Procedure section 473 is reviewed for abuse of discretion. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981, 884 P.2d 126.)
DISCUSSION
A. The Order for Substituted Judgment
De Soet contends that the order granting the petition for substituted judgment is void because it was entered by De Soets former attorney without De Soets authorization and it impaired his substantial rights. We agree.
In Levy v. Superior Court (1995) 10 Cal.4th 578, 896 P.2d 171, the Supreme Court explained that a client must specifically authorize an attorney to settle or compromise a clients claim. An attorney is not authorized by virtue of his employment to impair a clients substantive rights. (Id . at pp. 584-585.) The court stated: "Unlike the steps an attorney may take on behalf of the client that are incidental to the management of a lawsuit, such as making or opposing motions, seeking continuances, or conducting discovery, the settlement of a lawsuit is not incidental to the management of the lawsuit; it ends the lawsuit. Accordingly, settlement is such a serious step that it requires the clients knowledge and express consent." (Id. at p. 583.)
In Blanton v. Womancare, Inc. (1985) 38 Cal.3d 396, 212 Cal. Rptr. 151, 696 P.2d 645, the Supreme Court also addressed the question of the authority of an attorney to bind a client. The court explained that an attorney may not, merely by virtue of his or her retention in the litigation, impair a clients substantial rights or a cause of action itself. (Id. at p. 404.) For instance, the court noted that an attorney may not, without a clients express consent, enter a stipulation which would eliminate an essential defense of a client, or agree to binding arbitration.
In Romadka v. Hoge (1991) 232 Cal. App. 3d 1231, 283 Cal. Rptr. 878, the plaintiffs authorized their attorney to dismiss an action without prejudice. The attorney accidentally checked the "with prejudice" box on the dismissal form. The Court of Appeal reversed the trial courts denial of the plaintiffs motion to vacate the dismissal pursuant to Code of Civil Procedure section 473. The plaintiffs attorney had submitted a declaration to the trial court explaining that she had acted without authority. The trial court had no basis to disbelieve this evidence. The Court of Appeal stated: " Dismissal of a cause of action by an attorney acting without any authority from his client is an act beyond the scope of his authority which, on proper proof, may be vacated at any time. Obviously, such action requires strong and convincing proof, and the longer the delay in the application for relief the stronger and more convincing the factual proof should be. [Citation.]" (Romadka, at p. 1236, original italics.)
We must therefore determine whether entry of the substituted judgment impaired one of De Soets substantive rights and whether De Soet authorized his former attorney to enter the substituted judgment.
1. Impairment of a Substantive Right
Entry of the stipulated judgment nullified and voided the 1995 will and trust pursuant to which Kerr allegedly attempted to make De Soet her sole beneficiary. This had the effect of eliminating and compromising De Soets status and claim as a beneficiary under the 1995 will and trust. It also had the effect of eliminating one of De Soets essential defenses to the conservatees petition to restore title, i.e., Kerrs purported 1995 revocation of the 1993 will and trust.
While the trial court and the trustees counsel both remarked that the entry of the substituted judgment would have no effect upon the petition to restore title, the record indicates otherwise. It is clear from the record (see, e.g., footnote 6, ante) that the trial court relied upon the substituted judgments nullification of the 1995 will and trust when it granted the trustees petition to restore title to the real property to the 1993 trust.
We conclude that De Soet former counsels agreement to the substituted judgment impaired De Soets substantive rights because it eliminated his claim as a beneficiary to Kerrs estate and also eliminated an essential defense to the trustees petition to restore title.
2. Lack of Specific Authorization
During the trial on the trustees petition to restore title, De Soet and his new attorney apparently learned that De Soets former counsel had stipulated to the entry of the substituted judgment. De Soets new counsel immediately objected that she did not know about such an order. Following recess De Soets attorney represented to the trial court that De Soet did not know about the order and that De Soet never discussed it with his former attorney.
In support of his motions for new trials, De Soet submitted a declaration stating that he was not present during the May 4, 2001 hearing when his former counsel agreed to entry of the substituted judgment and that he did not authorize his attorney to enter the substituted judgment.
In support of his motions to vacate, De Soet submitted the declaration of his former attorney, Rosenblit, in which Rosenblit declared under penalty of perjury that because he believed the order for substituted judgment was in De Soets best interests, he did not consult De Soet, nor obtain his consent before or after agreeing to the substituted judgment. Nor did Rosenblit send De Soet a copy of the order. Finally, Rosenblit declared that De Soet was not present at the May 4, 2001 hearing.
The trial court could not recall if De Soet was present at the May 4, 2001 hearing. The reporters transcript does not indicate whether De Soet was present for the hearing. The co-conservators counsel, however, submitted a declaration under oath in opposition to De Soets motions for new trial in which counsel stated that De Soet was present at the May 4, 2001 hearing.
The trial court did not expressly or impliedly resolve this factual dispute. We resolve this dispute in favor of allowing the issue of the validity of the 1995 trust and will to be resolved by the trier of fact, instead of nullified by an agreement of counsel. In addition, De Soets former counsel had a plausible rationale for why he did not inform De Soet about the agreement to entry of the substituted judgment, because he believed the substituted judgment was in De Soets best interests. We therefore reverse the trial courts order approving entry of the substituted judgment.
B. The Order to Restore Title
De Soet claims that the order granting the trustees petition to restore title was directly and inextricably based upon the order granting the petition for substituted judgment and must be reversed. We agree and reverse the order to restore title.
When the trial court granted the trustees petition to restore title to the real property to the 1993 trust, it relied, in substantial part, upon the substituted judgment, which nullified the purported 1995 revocation of the 1993 trust. As noted in footnote 6, ante, the trial court ruled that the purported 1995 quitclaim deed in favor of De Soet was invalid unless the 1993 trust had been revoked, which the trial court stated was not an issue because the order for substituted judgment had nullified the 1995 revocation of the 1993 trust.
In addition, the trial court precluded De Soets attempt to present evidence that Kerr, as trustor, complied with section 2.01 of the 1993 trust before she allegedly executed the 1995 quitclaim deed in favor of De Soet. As explained in footnote 5, above, De Soets counsel read from a document purportedly executed by Kerr, as trustor, in 1995, entitled, "Notice of Cancellation and Revocation." In response to this proffer of proof, the trial court stated that by virtue of the order for substituted judgment, Kerrs actions in 1995, as trustor, were a legal nullity. On appeal, De Soet claims that the 1995 documents show that Kerr, as trustor, complied with section 2.01 of the 1993 trust. Specifically, De Soet argues that 1995 documents nullified the 1993 grant deed to the 1993 trust and therefore Kerr, as trustor, had both equitable and legal title as a matter of law when she allegedly executed the 1995 quitclaim in favor of De Soet.
Upon reviewing the transcript of the oral proceedings, we conclude that De Soet made, or at least attempted to make, a valid offer of proof (Evid. Code, § 354) on the issue of whether the purported 1995 will and trust revoked the 1993 will and trust and the 1993 grant deed. It is clear from the record that a further attempt on behalf of De Soet to make an additional offer of proof would have been futile. (Evid. Code, § 354, subd. (b); Lawless v. Calaway (1944) 24 Cal.2d 81, 91, 147 P.2d 604; 3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, § 404, p. 493 ["If the trial judge expressly limits the issues or otherwise indicates a refusal to receive evidence on a certain subject, an offer of proof relating to the excluded issues would be futile and is excused."]) De Soet, therefore, did not waive, and may argue on appeal, that there is a dispute as to whether in 1995, Kerr, as trustor, complied with section 2.01 of the 1993 trust before she allegedly executed the 1995 quitclaim deed in favor of De Soet.
Based upon the foregoing, the trial court relied upon the order for substituted judgment to preclude De Soet from offering evidence that Kerr, as trustor, complied with section 2.01 of the 1993 trust before she purportedly executed the 1995 quitclaim deed in favor of De Soet. Because the order for substituted judgment must be reversed, and because of the prejudicial effect that order had upon De Soets efforts to introduce evidence in opposition to the trustees petition to restore title, we also reverse the order to restore title.
C. Conclusion
On remand, among other issues raised by the trial court or the parties, the trial court should resolve the following issues, not necessarily in the order presented by this court:
1. Whether Kerr, as Trustor, Complied with Section 2.01 of the 1993 Trust
The parties agree that in 1995 when Kerr, as trustor, purportedly executed the quitclaim deed in favor of De Soet, Kerr, as trustor, held equitable title to the real property. (Prob. Code, § 15800, subd. (a) ["The person holding the power to revoke, and not the beneficiary, has the rights afforded beneficiaries under this division"]; Gonsalves v. Hodgson (1951) 38 Cal.2d 91, 98, 237 P.2d 656; Raczynski v. Judge (1986) 186 Cal. App. 3d 504, 511, 230 Cal. Rptr. 741 ["The creation of a trust divides title to the trust property, placing legal title in the trustee and equitable title in the beneficiary"]; Lynch v. Cunningham (1933) 131 Cal.App.164.)
De Soet, however, has provided no authority that Kerr, as trustor, could have passed an enforceable equitable title interest in the real property to De Soet by quitclaim deed. Instead, De Soet appears to agree that strict compliance with express revocation procedures in trust documents is required, but asserts there is a dispute as to whether, in 1995, Kerr, as trustor, complied with the revocation procedures set forth in section 2.01 of the 1993 trust. In addition, De Soet claims that if the 1995 revocation of the 1993 trust was valid, then legal title in the real property was delivered to, and vested in, Kerr, as trustor, as a matter of law. Thus, De Soet asserts he can show that in 1995 Kerr complied with section 2.01 of the 1993 trust, and that the 1995 quitclaim deed passed both legal and equitable title in the real property to De Soet.
The trustee asserts that the purported 1995 revocation of the 1993 trust did not comply with the revocation procedures of section 2.01 of the 1993 trust and that strict compliance with a trustors revocation procedures is required by statute. The trustee asserts that the 1995 revocation of the 1993 trust and the 1995 quitclaim deed were therefore legally invalid.
Relevant authorities require that express revocation provisions found in trust agreements must be strictly followed in order to prevent potential abuse and undue influence. (Conservatorship of Irvine (1995) 40 Cal.App.4th 1334, 1343 [" Provisions like these are designed to protect settlors from possible undue influence of people who would like to benefit from the trust assets. "]) However, the record indicates that there are issues which must be resolved in order to determine whether Kerr, as trustor, complied with section 2.01 of the 1993 trust when she allegedly executed the 1995 will, trust, and quitclaim deed in favor of De Soet.
Probate Code section 15401, subdivision (a)(1) and (2), provides that when a "trust instrument explicitly makes the method of revocation provided in the trust instrument the exclusive method of revocation," the trust can only be revoked in compliance with the express provision in the trust document. (See also Conservatorship of Irvine, supra, 40 Cal.App.4th at pp. 1343-1344, fn. 3 ["Section 15401 makes it clear a trustor may provide express provisions in the trust agreement for revocation of the trust, and that method then will be the exclusive method for revocation of the trust."]; Estate of Lindstrom (1987) 191 Cal. App. 3d 375, 385, 236 Cal. Rptr. 376 [" If the settlor reserves a power to revoke the trust by a transaction inter vivos, as, for example, by a notice to the trustee, he cannot revoke the trust by his will. "]; Hibernia Bk. v. Wells Fargo Bank (1977) 66 Cal. App. 3d 399, 136 Cal. Rptr. 60; Rosenauer v. Title Ins. & Trust Co. (1973) 30 Cal. App. 3d 300, 106 Cal. Rptr. 321; and Rest.2d Trusts, § 330, com. j, p. 139 ["If the settlor reserves a power to revoke the trust only in a particular manner or under particular circumstances, he can revoke the trust only in that manner or under those circumstances."])
Commenting upon the predecessor statute (Civ. Code, § 2280) to Probate Code section 15401, and recommending passage of Probate Code section 15401, the California Law Revision Commission stated: "California courts generally have held that where the trust instrument provides a method of revocation, the prescribed procedure must be followed rather than the statutory method. This rule has been defended on the grounds that the settlor may wish to establish a more complicated manner of revocation than that provided by statute where there is a concern about future senility or future undue influence while in a weakened condition. . . . [P] The proposed law adopts a compromise position that makes available the statutory method of revoking by delivery of a written instrument to the trustee during the settlors lifetime except where the trust instrument explicitly makes exclusive the method of revocation specified in the trust. This allows a settlor to establish a more protective revocation scheme . . . ." (Recommendation: The Trust Law (Dec. 1985) 18 Cal. Law Revision Com. Rep. (1986) pp. 567-568.)
In this case, section 2.01 of the 1993 trust expressly provided and required that "the Trustor may, by serving written notice on the Trustee, revoke the trust created by this Declaration in whole or in part. Any property withdrawn from the Trust Estate by reason of any such revocation shall be delivered by the Trustee to the Trustor." (Italics added.)
Section 2.01 of the 1993 trust used mandatory language. It required the trustor to serve written notice on the trustee in order to revoke the trust. It also required that upon revocation the property "shall be delivered" from the trustee to the trustor before such property is transferred to any third parties.
Pursuant to Probate Code Section 15401 and Conservatorship of Irvine, supra, 40 Cal.App.4th 1334, we conclude that Kerr, as trustor, in 1993 explicitly made the method of revocation in the 1993 trust, section 2.01, the exclusive method of revocation. Thus, to show that the 1995 revocation complied with section 2.01 of the 1993 trust, De Soet must prove two things: (1) that Kerr, as trustor, served written notice of the revocation upon Kerr, as trustee; and (2) that real property was "delivered" from Kerr, the trustee, to Kerr, as trustor.
a. Service of Written Notice
Kerr was the sole trustee and trustor of the 1993 will and trust. We thus conclude that, if Kerr was competent and not subject to undue influence at the time she allegedly executed the 1995 documents, her act of signing the 1995 documents purportedly revoking the 1993 will and trust, constituted service of written notice of revocation by Kerr, as trustor, upon Kerr, as trustee.
b. Delivery of Real Property
Pursuant to Probate Code section 21122, we conclude that the word "delivery" found in section 2.01 of the 1993 trust was used in its technical sense. The 1993 will and trust were drafted by Kerrs attorney. In addition, the context clearly indicates the word "delivery" was used in its technical sense because it was used in relationship to the conveyance of real property from a trustee to a trustor in a trust document.
Probate Code section 21122 provides in pertinent part: "The words of an instrument are to be given their ordinary and grammatical meaning unless the intention to use them in another sense is clear and their intended meaning can be ascertained. Technical words . . . in an instrument . . . are to be considered as having been used in their technical sense unless (a) the context clearly indicates a contrary intention or (b) it satisfactorily appears that the instrument was drawn solely by the transferor and that the transferor was unacquainted with the technical sense."
Moreover, numerous sections of the Civil Code employ the word "delivery" in relation to the transfer of real property. For instance, Civil Code section 1054 provides: "A grant takes effect, so as to vest the interest intended to be transferred, only upon its delivery by the grantor." As summarized by Witkin, "delivery depends upon the intention that title shall pass irrevocably." (4 Witkin, Summary of Cal. Law (9th ed. 1987) Real Property, § 170, pp. 379-380.)
In addition, Blacks Law Dictionary (5th ed. 1979) page 385, column 2, defines "delivery" as: "The act by which the res or substance thereof is placed within the actual or constructive possession or control of another."
As explained above, pursuant to the 1993 trust, Kerr, as trustor, retained equitable title in the real property, and Kerr, as trustee, held legal title. Thus, in determining whether Kerr, as trustee, delivered the real property to Kerr, as trustor, De Soet must show that Kerr, as trustee, delivered legal title in the real property to Kerr, as trustor, in order to show compliance with section 2.01 of the 1993 trust.
The 1993 trust by its express terms simply precluded direct transfer of trust property to third persons upon revocation. Such property was expressly required to be delivered first to the trustor. If Kerr could bypass her contractual and express duty to convey legal title in the real property back to herself, and if De Soet were able to claim that he held an enforceable equitable title interest in the real property in such a circumstance in the absence of delivery of legal title, then the purpose of strict compliance with trust formalities and the express provisions in trust documents would be eviscerated and the potential for abuse and undue influence would be enhanced.
Section 2.01 of the 1993 trust does not state by what means Kerr, as trustee, must "deliver" legal title in the real property to Kerr, as trustor. We express no opinion as to whether De Soet may show that Kerr, as trustee, delivered legal title to Kerr, as trustor, by operation of law upon revocation of the 1993 trust; or whether De Soet must show that legal title was delivered to Kerr, as trustor, by way of something like a grant deed.
On remand, if De Soet fails to prove that Kerr, as trustee, delivered legal title in the real property to Kerr, as trustor, then the 1995 quitclaim deed in favor De Soet was legally invalid because the trustor, Kerr, did not strictly comply with the express revocation procedures in the 1993 trust, set forth by her presumably for her own protection.
2. Competence and Undue Influence
Another issue which must be resolved by the trial court is whether in 1995, Kerr, as trustor, was competent, or subject to any undue influence, when she purportedly executed the 1995 will, trust, and revocation of the 1993 will and trust, as well as the 1995 quitclaim deed in favor of De Soet. If Kerr, as trustor, was not competent or was subject to undue influence when she purportedly executed the 1995 documents, those documents are legally invalid. (Prob. Code, §§ 6100, 6100.5, & 6104; 12 Witkin, Summary of Cal. Law (9th ed. 1990) §§ 177-187.)
DISPOSITION
The order granting the petition for substituted judgment is reversed. The order granting the petition to restore title is reversed. This action is remanded to the trial court for proceedings consistent with this opinion. De Soet is to recover costs on appeal.
We concur: KLEIN, P.J., CROSKEY, J.