Opinion
NOT TO BE PUBLISHED
San Luis Obispo County Super. Ct. No. PR060208, Barry T. LaBarbera, Judge
Tardiff Law offices, Neil S. Tardif; Law office of John A. Ronca, Jr., John A. Ronca, Jr., for Plaintiff and Appellant.
John F. Hodges; Michael Collins for Defendants and Respondents Heather Papich and Jason Papich.
David C. Money for Defendant and Respondent Marcia Papich, Trustee.
GILBERT, P.J.
This is an appeal from an order of the probate court validating multiple amendments to a family trust. We affirm.
FACTS
Berniece and William Papich, Sr., were married in 1946. At the time of the marriage, Berniece had a four-year-old daughter, Zola. Shortly after the marriage, William, Sr., adopted Zola. In 1947, Berniece and William, Sr., had a son, William, Jr.
We refer to William Papich, Sr., and William, Jr., by their first names not from disrespect, but to ease the reader's task.
William, Jr., married Marcia in 1976. They had two children, Heather, born in 1977, and Jason, born in 1978.
In 1985, Berniece and William, Sr., executed a joint will and trust. The will gave all of the property of the first to decease to the survivor. The will also provided that on the death of the survivor, all of the survivor's estate will be transferred to the trust. The will was expressly made revocable by either party at any time.
The declaration of trust provided, in part: "ARTICLE I . . . Trustors declare that all property described in schedule A is their community property and shall retain its character as such notwithstanding the transfer to this Trust. [¶] . . .[¶] ARTICLE VII . . . On the death of either Trustor, the surviving spouse may amend, revoke, or terminate the Trust. On revocation or termination of the Trust, all assets of the trust shall be delivered to the surviving spouse."
The declaration of trust appears to require an approximately equal distribution of assets between Zola and William, Jr., upon death of the surviving trustor.
William, Sr., and Berniece were named cotrustees. On the death or incapacity of either, William, Jr., was named successor cotrustee. On the death of both William, Sr., and Berniece, William, Jr., was named successor trustee.
Berniece died in February of 1993 without having revoked or amended her will or trust. In October of 1993, William, Sr., began a series of amendments to the trust that shifted substantially all distribution of assets in the trust estate from Zola to William, Jr., and his wife and children.
William, Jr., died in 1995 leaving a widow and two children. Thereafter, William, Sr., executed a series of amendments directing distribution of substantially all the trust assets to William, Jr.'s, widow and children. William, Jr.'s, widow was appointed successor trustee.
William, Sr., died in January of 2006. Zola petitioned the probate court for an order determining the effect of the amendments. She argued that under In re Estate of Powell (2000) 83 Cal.App.4th 1434 (Powell), the amendments could affect only one-half of the trust corpus. The probate court concluded the amendments were valid as to the entire trust corpus.
DISCUSSION
I
Zola contends Berniece clearly intended that Zola and William, Jr., share equally in the Papich family estate.
In construing a trust instrument, the intent of the trustors must be determined from the instrument as a whole. (Wells Fargo Bank v. Marshall (1993) 20 Cal.App.4th 447, 452-453.) Where, as here, the parties do not rely on conflicting extrinsic evidence, interpretation of the trust instrument presents a question of law. (Ibid.) Accordingly, we exercise independent review. (Ibid.)
It is true the trust instrument originally provided for an equal distribution to Zola and William, Jr. But the trust also states, "On the death of either Trustor, the surviving spouse may amend, revoke, or terminate the trust." The only reasonable conclusion is that Berniece intended William, Sr., as the surviving spouse, have the power to amend the trust after death. This meant he could change the beneficiary.
Zola's reliance on Powell is misplaced. There husband and wife executed a trust. The trust named wife as trustee and husband as successor trustee. Husband and wife were named beneficiaries. Upon the death of either trustor, the survivor would become the sole beneficiary. Upon the death of both trustors, the trust assets would be distributed to Ronald, wife's son by a prior marriage. The trust provided it could be revoked at any time during the lifetime of either trustor. Wife also executed a will leaving all of her property to the trust to be distributed in accordance with the trust's provisions.
After wife died, husband revoked the trust. Ronald challenged the revocation. The Court of Appeal determined the revocation was only effective as to one-half of the trust corpus. The court reasoned that the property held in trust at wife's death was community property. Upon wife's death, one-half of the community belonged to wife and one-half belonged to husband as the surviving spouse. (Prob. Code, § 100.) The court relied on section 15401, subdivision (b). That subdivision states, "Unless otherwise provided in the instrument, if a trust is created by more than one settlor, each settlor may revoke the trust as to the portion of the trust contributed by that settlor . . . ." The court concluded that under section 15401, subdivision (b), husband could revoke the trust only as to the one-half of the community property he contributed. (Powell, supra, 83 Cal.App.4th at p. 1441.)
All statutory references are to the Probate Code unless otherwise stated.
Zola concedes that section 15401 does not apply to the Papich trust. The trust was created in 1985. Subdivision (e) of section 15401 provides that the section does not apply to a trust instrument executed before July 1, 1987, and that such a trust instrument is governed by prior law. Because the holding in Powell is based on section 15401, subdivision (b), Powell does not apply here. Instead, the law prior to July 1, 1987, applies. Even prior to July 1, 1987, the law was that a trust could be amended by the trustor in accordance with the terms of the trust. (See Wilson v. First Nat. Trust & Sav. Bank (1946) 73 Cal.App.2d 446, 450.) Here the trust expressly allows William, Sr., as the surviving spouse, to amend the trust. No language in the trust instrument limits the right to amend.
Moreover, the court's reasoning in Powell is faulty. We would agree with the result in Powell had the trust instrument been silent on the trustor's right to revoke. But section 15401, subdivision (b), begins, "Unless otherwise provided in the [trust] instrument . . . ." The trust instrument there, as here, gave the surviving trustor the power to revoke the trust during his lifetime. The trust instrument did not limit that power to half the corpus. Because the trust gave the power to revoke without limitation, the court erred in applying section 15401, subdivision (b), to limit the power.
Zola argues it was clearly Berniece's intent to make an equal distribution of trust assets to her children. But the trust language giving the surviving spouse the right to amend or revoke the trust shows it was Berniece's intent to let the surviving spouse make the ultimate decision about the distribution of assets. That Berniece made no amendments to the trust during her lifetime does not compel a different conclusion. Nor is there any evidence to support Zola's supposition that William, Sr., deceived or defrauded Berniece.
Zola's argument that Berniece intended no alteration to her estate plan without the consent of a cotrustee is without merit. The trust instrument gives the power to amend or revoke the trust to the "surviving spouse." Zola points to no language requiring the consent of a cotrustee or anyone else.
II
Zola argues the amendments to the trust are void because they were not delivered to and approved by William, Jr., or a cotrustee after his death.
Zola concedes this question was not raised at trial. She asserts, however, that a new theory pertaining to a question of law on facts appearing in the record may be raised for the first time on appeal. (Citing Waller v Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 24.) But Zola cites no evidence to show that the amendments were not delivered to William, Jr., or another cotrustee. In fact, Zola admits there is no evidence, one way or the other, whether William, Jr., accepted the position of a cotrustee. We decline to consider the issue for the first time on appeal.
In any event, the only cotrustee named in the trust instrument was William, Jr. Zola points to nothing in the instrument requiring a successor cotrustee on William, Jr.'s, death. Thus, after William, Jr., died, William, Sr., was the sole trustee. The amendments made after William, Jr., died barred Zola from receiving any substantial portion of the trust estate.
Finally, it is uncontested that William, Sr., executed the amendments. Delivery to a cotrustee is a mere ministerial act, the failure of which will not be allowed to defeat the amendments. (See Huscher v. Wells Fargo Bank (2000) 121 Cal.App.4th 956, 972.)
The judgment is affirmed. Costs are awarded to respondents.
We concur: YEGAN, J., PERREN, J.