Opinion
D050872
4-18-2008
LUCRETIA McCAIN, Plaintiff and Respondent, v. ERIC KRUGER, Defendant and Appellant.
NOT TO BE PUBLISHED
Eric Kruger (Eric) appeals a judgment granting the petition of Lucretia McCain (Lucretia) for the distribution of assets of a 1996 trust created by Dorothy Charlene Kruger (Trustor), now deceased, in accordance with the provisions of Trustors 2001 restatement of the trust. On appeal, Eric contends the trial court erred by concluding Trustors 2004 interlineations on a copy of the 1996 trust did not constitute an amendment and restatement of that trust and therefore did not supersede the 2001 restatement.
FACTUAL AND PROCEDURAL BACKGROUND
Trustor was born in 1918. She did not have any siblings or children. In 1976, she and Arthur King, her second husband, purchased a home on Braeburn Road in San Diego. Lucretia was her neighbor. In 1984, King died.
In 1986, Trustor married Jack Kruger (Jack), her third husband, who moved into Trustors Braeburn home. Jack had one child from a previous marriage, Gary Allan Kruger (now deceased), who had two children, Eric and Victoria.
On July 10, 1996, Trustor, as trustor and trustee, created a revocable living trust known as The Dorothy Charlene Kruger Family Trust (1996 Trust). The 1996 Trust was drafted by attorney Robert Smykowski. Trustors signatures on the 1996 Trust were acknowledged by James OBrien, a notary public and financial adviser. As originally executed, paragraph 7.1 of the 1996 Trust apparently provided that on Trustors death the (successor) trustee "shall distribute the trust estate to Jack Kruger, provided, however, if he is deceased, then the sum of ten thousand dollars ($10,000) each to Penny Adams, to San Diego Hospice and to the Helen Woodward Animal Center in Rancho Santa Fe, CA and the remaining balance to Eric Kruger." Paragraph 10.2 provided: "The Trustor may at any time amend any terms of this trust by written instrument signed by the Trustor." Paragraph 11.2 provided for successor trustees as follows: "If [Trustor] for any reason fails to qualify or ceases to act as Trustee, Jack Kruger, of San Diego, CA, shall act as Trustee. If Jack Kruger for any reason fails to qualify or ceases to act as Trustee, Leonard A. Henry, of San Diego, CA, shall act as Trustee."
At trial, a photocopy of the 1996 Trust, with interlineations subsequently made by Trustor, was admitted into evidence.
In 2000, Trustor sold her home and moved with Jack into a retirement facility. On August 29, 2001, Trustor, as trustor and trustee, executed a restatement of the 1996 Trust (2001 Restatement). The 2001 Restatement was drafted by OBrien. Trustors signatures were acknowledged by Karen Aldana, a notary public. The 2001 Restatement amended paragraph 7.1 of the 1996 Trust to provide that on Trustors death the (successor) trustee "shall distribute the trust estate to Jack Kruger, provided however if he is deceased then the trust estate shall be distributed as follows: [¶] The sum of Ten Thousand dollars ($10,000.00) to Penny Adams, provided however if she is deceased, then back to the trust, [¶] The sum of Ten Thousand dollars ($10,000.00) to the San Diego Hospice, [¶] And the remainder of the trust is to be distributed to Lucretia McCain, provided however if she is deceased then the remainder of the trust estate shall be distributed to her husband, James McCain (aka Jim McCain[).]" Paragraph 10.2 was amended to read: "The Trustor may at any time during her lifetime amend any terms of this trust by written instrument signed by the Trustor." Paragraph 11.2 was amended to read in part: "If [Trustor] for any reason fails to qualify or ceases to act as trustee, Jack Kruger shall act as Trustee. If Jack Kruger for any reason fails to qualify or ceases to act as Trustee, Lucretia McCain shall act as trustee. If Lucretia McCain for any reason fails to qualify or ceases to act as Trustee, James McCain (aka Jim McCain) shall act as trustee."
On March 3, 2003, Jack died. On May 17, 2005, Trustor fell and broke her wrist. On May 21, surgery was performed at a hospital. On May 26, Trustor was moved to a rehabilitation center. On June 3, pursuant to Trustors request, Lucretia and James McCain (James) located Trustors files (including a copy of the 1996 Trust, apparently bearing subsequent interlineations) in her unlocked file drawer at the retirement facility and delivered them to Trustor the next day. Apparently per Trustors instructions, James drafted a revocable living trust based on the 1996 Trust, making certain changes requested by Trustor. On June 5, Trustor executed the trust drafted by James (2005 Trust) and Judy Sawyer, a notary public, acknowledged her signatures. Paragraph 7.1 of the 2005 Trust provided that on Trustors death the (successor) trustee "shall distribute the sum of $30,000 to Eric Kruger from the Great American account and the remaining balance of that account to Diane Kruger. The remainder of the trust estate shall be allocated to Lucretia McCain." On June 8, Trustor died.
Paragraph 11.2 of the 2005 Trust provided that Lucretia would serve as successor trustee in the event Trustor failed to qualify or ceased to act as trustee.
On June 30, Lucretia filed a petition for her appointment as successor trustee and an order reforming the 2005 Trust to be a restatement of the 1996 Trust. On August 12, the trial court appointed Lucretia as the temporary interim successor trustee of the Trust. On September 2, Eric filed his objection to Lucretias petition.
On September 11, Eric filed a petition for an order invalidating the 2005 Trust and for an order determining he is entitled to distribution of the entire trust estate pursuant to the terms of the 1996 Trust as revived and modified "sometime in or after 2003." Attached to his petition was a copy of the 1996 Trust with certain interlineations to paragraph 7.1s language. The following bracketed and italicized language shows the words stricken or lined out (i.e., interlineated) in paragraph 7.1 of the copy of the 1996 Trust: "On the Trustors death, . . . the Trustee shall distribute the trust estate [to Jack Kruger, provided, however, if he is deceased, then the sum of ten thousand dollars ($10,000) each to Penny Adams,] to San Diego Hospice [and to the Helen Woodward Animal Center in Rancho Santa Fe,] CA and the remaining balance to Eric Kruger." Adjacent to those interlineations appear the handwritten initials "DK." However, those interlineations and initials were not dated.
The parties apparently do not dispute that Trustor made the interlineations and wrote the initials.
On or about March 10, 2006, OBrien discovered a photocopy of the 2001 Restatement in his files. The original 2001 Restatement was never found.
On November 14, Lucretia filed a first amendment to her petition, alleging a photocopy of the 2001 Restatement was found by OBrien in his files on or about March 10. She alleged she had no knowledge of the 2001 Restatement before that date. She attached a copy of the 2001 Restatement and requested an order that the trust assets be distributed in accordance with the 2005 Trust or, alternatively, the 2001 Restatement. However, before trial Lucretia apparently withdrew her request for an order that the trust assets be distributed in accordance with the 2005 Trust and requested that those assets be distributed in accordance with the 2001 Restatement.
At trial, OBrien, Lucretia, and James testified. OBrien testified he served as Trustors financial adviser since 1996 and regularly discussed her estate plan with her. He drafted the 2001 Restatement per Trustors instructions. He testified Trustor discussed how close she was to Lucretia. He testified: "[Trustor] was very specific about Lucretia being the beneficiary [in the 2001 Restatement of the Trust] since she was the one [whos] always there for her. Shes the one [who] she talked to and shes the one she confides in and shares kind of her life with." Because Jack was going to take care of Eric in his estate planning, Trustor did not want Eric to be a beneficiary of the Trust. OBrien did not recall Trustor ever telling him about or showing him the copy of the 1996 Trust that included her interlineations.
Lucretia testified regarding the close friendship she had with Trustor from 1978 until Trustors death in 2005. Soon after Trustor executed the 1996 Trust, Trustor told Lucretia she did not "feel good" about Eric being a beneficiary. On June 4, 2005, after Trustors surgery, Trustor reviewed her papers (including the 1996 Trust, but not the 2001 Restatement) with James and was upset that the named beneficiary (i.e., Eric) was not who she wanted. Trustor believed Lucretia was supposed to be her beneficiary. On cross-examination, Lucretia testified that in late 2003 she visited Trustor, who had a copy of a version of the 1996 Trust on her coffee table. Trustor was making some changes to it.
James testified regarding Trustors review of a copy of the 1996 Trust on June 4, 2005. That copy bore the interlineations and initials discussed above. Trustor became agitated and stated that it was not what she wanted (i.e., she did not want Eric to be her beneficiary). She asked James to make the changes she wanted. He made the changes and gave her his draft of the 2005 Trust. Trustor reviewed it and wanted to sign it immediately. Despite his recommendation that she wait to have an attorney review it, Trustor chose to sign the 2005 Trust after Lucretia found a notary public to acknowledge her (Trustors) signature.
After receiving the evidence and hearing arguments of counsel, the trial court stated its findings on the record. It noted a "trust is a contractual arrangement in the sense it may be proven by all means available to the parties and pursuant to the Evidence Code. The secondary evidence rule applies. And both sides have demonstrated and proven the contents of instruments . . . ." The court stated the determinative question in this case was whether the 1996 Trust (whether an original copy or a photocopy) with Trustors interlineations "was intended by the [Trustor] at the time that she made the interlineations to constitute an amendment and restatement of her trust in its entirety." Alternatively stated, the question was: "Were the interlineations made with the intention that the document becomes an expression of her final testamentary intention as to the disposition of her trust by making the changes she made? Did she intend that that document be a full restatement of her trust, thereby changing the bulk of testamentary wishes, leaving everything basically to Eric?" "[W]ere the interlineations which deleted Penny Adams and the Helen Woodward Animal Center as specific beneficiaries, and which delete the monetary value of the gift to the San Diego Hospice, intended by the [Trustor] at the time that she made them to constitute an amendment to her trust and a restatement of that trust in its entirety, so as to reinstate Eric as her heir, contrary to the clearly expressed intention of the 2001 instrument?"
In answering that dispositive question regarding Trustors intent, the court noted the evidence supported an inference the interlineations on the 1996 Trust were made by Trustor between December 9, 2003 (when OBrien met with her regarding the amount to be given to the hospice), and August 4, 2004 (when Trustor signed a document, "Final Instructions and Wishes," stating her wish that Eric receive a certain bank account). Accordingly, the court found the interlineations to the 1996 Trust were made after December 2003.
The Final Instructions and Wishes, dated August 4, 2004, stated in part: "I would like for some monies to be donated to the San Diego Hospice. I dont know how much net worth I will have when I pass away, so I cannot say a specific dollar amount. I also would like for the balance of the Great American account (that was Jacks) to be given to Jacks grandson, Eric Kruger. I may give him specific sums from that account while I am alive, so I am not exactly sure what amount will be left when I am deceased. It is quite possible that I will have given him the entire balance already. But if there is any amount left in the account, I would like it to be given to Eric Kruger. I have lost track of Penny Adams and do not wish to give her anything upon my death." That document also stated: "I have faithful friends in Jim and Lucretia McCain, but do not want to burden them with the care of Chanel [i.e., Trustors dog which she described as `my most faithful lifes companion]." The document was signed by Trustor and witnessed by OBrien.
The court then considered various factors, including: (1) the Trustors knowledge of the location of the 1996 Trust; (2) her statements (on June 4, 2004) on reviewing it (i.e., "Its not right; it needs to be changed"); (3) her failure to change the successor trustees named in the 1996 Trust even though both were then deceased; (4) the instruments contradiction of the intentions she expressed in, and the circumstances surrounding, the 2001 Restatement; (5) her statements to OBrien that Lucretia was to receive the residue of her estate; (6) when Trustor and OBrien discussed her trust, they talked about the 2001 Restatement and not the 1996 Trust; (7) the unlikelihood that Trustor would have acted (in changing the 2001 Restatement of the Trust) without OBriens advice or without informing him of the changes; (8) the changes reflected in the 1996 Trust could have been merely notes reflecting the changes she was discussing with OBrien at the time (and consistent with her August 2004 Final Instructions and Wishes drafted by OBrien); (9) the failure of the interlineations on the 1996 Trust to specify the exact division of her trust estate between the San Diego Hospice and Eric; and (10) the remote relationship between Trustor and Eric. Considering those factors, the trial court stated:
"In looking at the circumstances surrounding the interlineations between the end of 2003 and her death, to take the entire time frame in terms of circumstances into account, theres no evidence of circumstances which would favor a disposition to Eric. Everything this court has heard of the circumstances after that time frame would lead directly or inferentially with the clear intent set forth in the 2001 [Restatement]. [¶] The 2005 trust instrument . . . supports an inference that the McCains were the object of [Trustors] testamentary desires. . . .
"One of the comments that I think is important is the [Trustors] comment upon reading the 1996 [interlineated instrument], `Its not right, when it was presented to her. In my view this is an equivocal statement. It could mean she recognized she left everything to Eric and wants to draft a new trust. On the other hand, it could mean the document that was in her desk drawer wasnt the right document. The documents that she got from the McCains were the wrong one[s], had to be fixed, had to be taken care of and corrected. I can draw two inferences from that, so I dont think its dispositive in terms of arguing that there was a restatement amendment."
The court concluded:
"Premised on all the foregoing and having considered the documents which I went over, the credibility of the witnesses and arguments of counsel, Im not persuaded by a preponderance of the evidence, that the interlineations on the 1996 instrument constituted an intention, at the time they were made, to amend and restate the entire trust so as to substitute Eric as the residual heir, and thus nullify the clear intention which is expressed in the 2001 [Restatement], and by the [Trustors] clear expressions of intent to Mr. OBrien, both in 2001 and thereafter."
Therefore, the court found the 2001 Restatement was the operative and dispositive trust instrument, with distribution to be in accordance with paragraph 7.1 of the 2001 Restatement.
On March 7, 2007, the trial court entered judgment for Lucretia. The judgment stated:
"[T]he court finds as follows: [¶] 1. The undated interlineations made by the [Trustor] on the July 10, 1996 Trust were made subsequent to December 2003. [¶] 2. At the time that the interlineations were made, the [Trustor] did not intend to amend and restate the 1996 Trust instrument so as to substitute Eric Kruger as the residual beneficiary, and thus nullify the clear intentions as expressed in the August 29, 2001 Restatement of the July 10, 1996 Trust."
Accordingly, the court ordered that Lucretia be named the successor trustee of the 2001 Restatement and the assets of the Trust be distributed in accordance with the 2001 Restatement.
Eric timely filed a notice of appeal.
DISCUSSION
I
Standard of Review
The parties disagree on the applicable standard of review. Eric asserts that because there is no conflicting extrinsic evidence or any witness credibility issues, we should apply a de novo, or independent, standard of review. Lucretia disagrees and asserts we should apply the substantial evidence standard of review.
Generally, when on appeal "the decisive facts are undisputed, we are confronted with a question of law and are not bound by the findings of the trial court. [Citations.]" (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799.) The interpretation of a written instrument, including a trust, presents a question of law unless the interpretation depends on the competence or credibility of extrinsic evidence or a conflict in that evidence. (Ike v. Doolittle (1998) 61 Cal.App.4th 51, 73.) Alternatively stated, "[w]e independently review questions regarding construction of the wills [or trusts] terms. We must accept the trial courts findings if they are based on the credibility of extrinsic evidence, or resolve a conflict in that evidence. However, the trial courts findings are not binding on us if there is no conflict in the extrinsic evidence, or if that evidence is incompetent to support the findings. [Citations.]" (Estate of Smith (1998) 61 Cal.App.4th 259, 265.) "The possibility that conflicting inferences can be drawn from uncontroverted evidence does not relieve the appellate court of its duty independently to interpret the instrument; it is only when the issue turns upon the credibility of extrinsic evidence, or requires resolution of a conflict in that evidence, that the trial court determination is binding." (Estate of Dodge (1971) 6 Cal.3d 311, 318.)
In the circumstances of this case, it is not entirely clear whether the trial court made determinations on the credibility of witnesses. Based on our review of the record, it does not appear Eric challenged the credibility of any of the witnesses. Furthermore, the record does not appear to include conflicting extrinsic evidence, but instead only evidence from which conflicting inferences can be drawn. Therefore, assuming the determination of whether the Trustor intended her 2004 interlineations on the copy of the 1996 Trust to be an amendment and restatement of the 1996 Trust does not depend on conflicting extrinsic evidence or the credibility of witnesses, we apply a de novo, or independent, standard of review.
To the extent the substantial evidence standard of review applies, the application of that standard would not change our disposition of this appeal.
"In construing a trust instrument, the intent of the trustor prevails and it must be ascertained from the whole of the trust instrument, not just separate parts of it. [Citation.]" (Scharlin v. Superior Court (1992) 9 Cal.App.4th 162, 168.) Extrinsic evidence may be offered to show a testamentary instrument was not intended to be effective (e.g., was instead executed in jest or by mistake). (Estate of Sargavak (1950) 35 Cal.2d 93, 95-96; Estate of Smith, supra, 61 Cal.App.4th at p. 266.) "In interpreting a document such as a trust, it is proper for the trial court in the first instance and the appellate court on de novo review to consider the circumstances under which the document was made so that the court may be placed in the position of the testator or trustor whose language it is interpreting, in order to determine whether the terms of the document are clear and definite, or ambiguous in some respect. [Citation.] Thus, extrinsic evidence as to the circumstances under which a written instrument was made is admissible to interpret the instrument, although not to give it a meaning to which it is not reasonably susceptible. [Citation.]" (Wells Fargo Bank v. Marshall (1993) 20 Cal.App.4th 447, 453, citing Estate of Russell (1968) 69 Cal.2d 200, 208-211.) "On review of the trial courts interpretation of a document, the appellate courts proper function is to give effect to the intention of the maker of the document. [Citation.]" (Wells Fargo Bank, at p. 453.)
II
Trustors Intent Regarding Interlineations on the 1996 Trust
Eric contends the trial court erred by concluding Trustor did not have the intent to amend and restate the 1996 Trust when in 2004 she made the interlineations on the copy of the 1996 Trust. He argues those interlineations reflected Trustors intent to change the residual beneficiary of her trust estate as set forth in the 2001 Restatement from Lucretia to him.
Eric notes, and we agree, Trustor had the power to modify the 1996 Trust and the 2001 Restatement. Paragraph 10.2 of those instruments provided Trustor could "amend any terms of this trust by written instrument signed by the Trustor." Because of that express modification provision, Trustor was not required to deliver any modification or restatement of the Trust to the trustee pursuant to Probate Code section 15401, subdivision (a)(2). (Prob. Code, §§ 15401, subd. (a)(1), 15402.) Accordingly, neither the Trust nor the law precluded Trustor from amending or restating the 2001 Restatement by signing a writing with the intent to effect that amendment or restatement.
In any event, because in 2004 Trustor was also the trustee of the 1996 Trust, had she signed a writing amending or restating the 1996 Trust, that amendment or restatement presumably would be deemed to have been delivered to herself as trustee.
We conclude Trustors execution of an amendment or restatement of the 2001 Restatement was not required to be witnessed or acknowledged by a notary public. Although Eric cites cases involving holographic wills (see, e.g., Estate of Cazaurang (1941) 42 Cal.App.2d 796; Estate of Finkler (1935) 3 Cal.2d 584), those cases are inapposite and are irrelevant to our analysis in this case. Eric does not cite any case involving a "holographic" trust instrument. Rather, we presume any writing (whether handwritten or not) signed by the Trustor with the intent to amend or restate the 2001 Restatement would have been sufficient to effect its purpose.
As the trial court stated, the determinative question is whether Trustor, by her 2004 interlineations on a copy of the 1996 Trust, intended to amend and restate the 2001 Restatement. Independently considering and weighing the evidence admitted at trial, we conclude Trustor did not have the intent to amend or restate her trust when in 2004 she made, and initialed, interlineations on the copy of the 1996 Trust. Our review of that document does not show on its face any clear intent that it be considered an amendment or restatement of the 1996 Trust.
The pertinent portion of paragraph 7.1 bearing the interlineations shows, at most, an intent to omit Penny Adams and the Helen Woodward Animal Center as beneficiaries of $10,000 each. After deletion of that interlineated language, the remaining language provides: "On the Trustors death, . . . the Trustee shall distribute the trust estate to San Diego Hospice CA and the remaining balance to Eric Kruger." As the trial court noted, that language is internally inconsistent or ambiguous because it does not specify exactly how much of the trust estate, in a dollar amount or otherwise, would go to San Diego Hospice. Therefore, its express terms were insufficient to determine how much of a "remaining balance," if any, of the trust estate Eric purportedly would receive. Furthermore, had Trustor intended the interlineated document to constitute an amendment and restatement of the 1996 Trust, she presumably would have updated paragraph 11.2 providing for successor trustees. Although she presumably made the interlineations in 2004, she did not interlineate or amend paragraph 11.2 of the 1996 Trust, which named Jack Kruger as the first successor trustee and Leonard A. Henry as the second successor trustee. Both of those named successor trustees were deceased in 2004 when Trustor interlineated a copy of the 1996 Trust.
In Erics opening brief, he incorrectly states: "Without the stricken language, Section 7.1 directs the trustee to distribute $10,000 to San Diego Hospice and the remaining balance to Eric Kruger." (Italics added.) As quoted above, the amount of $10,000 in paragraph 7.1 was stricken or lined out by the Trustor, leaving no specific amount stated to go to San Diego Hospice.
Jack Kruger died on March 3, 2003. Leonard A. Henry died on January 20, 2003.
Finally, Trustor did not sign, whether by full signature or initials, the final "signature" page of the interlineated copy of the 1996 Trust. Rather, she only wrote her initials adjacent to the interlineations in the language of paragraph 7.1. Had she intended to amend and restate her trust, one could reasonably infer she would have signed the final signature page thereof to express her current (i.e., 2004) intent to do so. Accordingly, our review of the face of the 2004 interlineated 1996 Trust shows it is ambiguous whether Trustor intended it to amend and restate the 1996 Trust.
Because of that ambiguity, we independently review the extrinsic evidence of the surrounding circumstances when Trustor made the interlineations in 2004 for expressions of her intent in making those interlineations. In 2001, Trustor clearly intended to change the remainder beneficiary from Eric to Lucretia when she executed the 2001 Restatement. OBrien drafted the 2001 Restatement pursuant to Trustors instructions, making Lucretia the remainder beneficiary. Trustor repeatedly (and consistently) told OBrien about her close relationship with Lucretia. At no point after the 2001 Restatement did Trustor inform OBrien of her wish to make Eric the Trusts remainder beneficiary in place of Lucretia. Based on OBriens testimony that he regularly discussed with Trustor her estate plan and drafted Trustors 2001 Restatement and 2004 Final Instructions and Wishes, it seems unlikely Trustor would have taken it upon herself in 2004 to amend and restate the 2001 Restatement, or otherwise change her estate plan, without OBriens assistance or without even informing him of that action.
Furthermore, the evidence shows a great difference between Trustors relationship with Lucretia and her relationship with Eric. Trustor had known and been a close friend of Lucretia since 1976. Trustor and Lucretia regularly socialized (e.g., going to dances together with their spouses). In contrast, there is no evidence showing Trustor had a significant relationship with Eric. Eric did not testify at trial. He was not related to Trustor. He was the grandson of Trustors third husband, Jack Kruger. After Jack Krugers death in 2003, Trustor discussed with OBrien her intent to carry out his (Jack Krugers) wish that the balance of his bank account go to Eric. She did not express any intent that Eric become the remainder beneficiary of the 1996 Trust in place of Lucretia. The long, close relationship Trustor had with Lucretia and Trustors lack of a significant relationship with Eric support an inference Trustor did not intend to make Eric her trusts beneficiary when she made the 2004 interlineations on the copy of the 1996 Trust.
Trustors statements in 2003 and 2005 regarding her trust do not unequivocally show Trustor intended that her 2004 interlineations amend and restate the 1996 Trust. Lucretia testified regarding an occasion in 2003 after Jack Krugers death when she visited Trustor and saw a trust document on Trustors coffee table. Trustor commented that she was "making some changes." Assuming arguendo Trustor was referring to making changes to the 1996 Trust, that statement by Trustor does not suggest what changes she was considering or planning on making. Also, her statement does not prove she did, in fact, make any changes to the 1996 Trust. At most, it shows she was considering changes to the Trust. Those changes may have been deletion of specific gifts to her cleaning woman or others (and not a change in the remainder beneficiary).
Similarly, Trustors statement on reviewing the copy of the 1996 Trust on June 4, 2005, does not unequivocally show she understood Eric was the remainder beneficiary of her trust estate. James testified at trial that Trustor became agitated and stated that it was not what she wanted (i.e., she did not want Eric to be her beneficiary). Likewise, Lucretia testified that Trustor was upset that the named beneficiary (i.e., Eric) was not who she wanted and believed Lucretia was supposed to be her beneficiary. Although Trustors statement and reaction could, as Eric argues, be interpreted as showing Trustor was aware that he was the current beneficiary of the 1996 Trust, it also could be interpreted, as Lucretia argues, as showing Trustor believed the copy of the 1996 Trust was mistaken in naming Eric as the remainder beneficiary and, instead, her recollection was that Lucretia was supposed to be that beneficiary. The latter interpretation appears to be the more reasonable interpretation because Trustor apparently understood the provisions of the 2001 Restatement in which Lucretia was named as the remainder beneficiary in place of Eric. Apparently recalling that Lucretia was supposed to be the remainder beneficiary under her most recent trust document (i.e., the 2001 Restatement), Trustor naturally could have become upset on reviewing a trust instrument (i.e., the interlineated copy of the 1996 Trust) that showed Eric, and not Lucretia, as the remainder beneficiary. Her statement that it was not what she wanted (i.e., Eric as the remainder beneficiary) would therefore be consistent with her recollection that she had intended Lucretia to be the named beneficiary pursuant to her most recent trust instrument (i.e., the 2001 Restatement).
Independently considering all of the evidence, including that discussed above, we conclude Trustor did not intend, when in 2004 she made the interlineations, for the interlineated copy of the 1996 Trust to constitute an amendment and restatement of the 1996 Trust superseding the 2001 Restatement. Therefore, the trial court correctly concluded the 2001 Restatement was Trustors effective trust instrument and the Trusts assets must be distributed in accordance with paragraph 7.1 of the 2001 Restatement.
Probate Code section 21120 does not require a different result. That statute provides: "The words of an instrument are to receive an interpretation that will give every expression some effect, rather than one that will render any of the expressions inoperative. . . ." However, that statutory rule of interpretation does not apply unless we first find the document in question was, in fact, a testamentary instrument (e.g., a trust). Because we conclude Trustor did not have the intent to amend or restate the 1996 Trust when she made the interlineations on the copy of the 1996 Trust, that interlineated copy never became a testamentary instrument and we need not apply Probate Code section 21120s rule of interpretation to it. In any event, even had we considered that rule of interpretation, it would have been only one factor in our interpretation of the interlineated copy and, considering that rule with all of the evidence and other rules of interpretation, would not have persuaded us to reach a contrary result.
DISPOSITION
The judgment is affirmed.
We concur:
BENKE, Acting P. J.
IRION, J.