Opinion
H050193
05-19-2023
Estate of GENEVIEVE COROTTO TURCO, Deceased. v. BENJAMIN H. TAFT et al., Petitioners and Respondents. DENNIS POLK, Claimant and Appellant,
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 1990-1-PR-125299
Grover, J.
The issue in this appeal is whether the probate court correctly interpreted a will. The will provision in question establishes a trust for the benefit of the testator's daughter and directs that if the daughter dies without issue, "then and in that event my trustee shall pay, deliver and convey all of the trust estate then remaining in its hands to my son." The probate court interpreted that provision to include a survivorship condition: that the testator's son could receive the remaining trust property only in the event he survived the daughter. Because the will does not contain language establishing such a requirement, the probate court's interpretation was incorrect. We will therefore reverse the probate court's order and remand for further proceedings to determine the proper distribution of the property.
I. BACKGROUND
The will giving rise to this dispute was executed by Genevieve Turco in 1985. (Because they share a surname, we refer to the family members by their first names for clarity, meaning no disrespect.) Genevieve had two children, John and Maria. Her will provided for most of her property to go to them, but in a different way as to each. Half the property was bequeathed directly to John. The only condition was that he survive Genevieve by at least 30 days. (The same was true for everyone named in the will-a universal survivorship condition mandates that for all beneficiaries, surviving Genevieve by at least 30 days "shall be a condition precedent for taking under this will.") The remaining half Genevieve left for Maria by way of a trust established for Maria's benefit. Genevieve designated Bank of America National Trust and Savings Association as the trustee and instructed it must hold the property in trust for Maria and use it for her "proper care, maintenance, and support."
Genevieve provided specific instructions for what to do with any property remaining in the trust when Maria died. The will states that the trust "shall cease and terminate upon the death of my daughter, and upon such termination my trustee shall pay, deliver, and convey all of the trust estate then remaining in its hand to my daughter's then surviving issue by right of representation. Should my daughter die without surviving issue, then and in that event my trustee shall pay, deliver, and convey all the trust estate then remaining in its hands to my son JOHN E. TURCO."
Genevieve died in 1990. She was survived by both children. Her will was admitted to probate and her property disbursed according to its instructions: after some minor bequests to others, half went to John; the other half was disbursed to the trust established for Maria's benefit. The final disbursement order found, consistent with the will's terms, that should Maria die without issue, the trustee must deliver the balance of the trust property to John "outright and free of trust."
John died in 2014 at age 83. His property was distributed according to his estate plan, with what remained after specific bequests in his will going to a trust established for the benefit of his wife Teresa (Teresa's trust), who was at that time conserved. According to the parties' briefing, Teresa died in 2017. Appellant Dennis Polk is a cotrustee of Teresa's trust.
Maria died in 2020 at age 86. She left no issue, as she never married, and had no children. At the time of Maria's death, property remained in the trust Genevieve's will had created. The current trustee of Maria's trust is one of the respondents, Benjamin Taft. The other respondents are various descendants of Genevieve who stand to benefit if the remaining trust property is disbursed according to the order challenged here.
After Maria's death, Taft petitioned the probate court to ascertain the beneficiaries of Maria's trust. Taft took the position that because John had died years earlier, "the identity of the ultimate beneficiaries of the trust estate is uncertain." The court ruled that because John predeceased Maria, the distribution to John of property remaining in Maria's trust could not occur. Invoking the statute that applies when a transfer called for under a will fails (Prob. Code, § 21111, subd. (a)(3)), the probate court ordered that the property remaining in Maria's trust be returned to Genevieve's estate and distributed under the laws of intestacy. Dennis Polk, as co-trustee of Teresa's trust, appeals that order.
II. DISCUSSION
A. Interpreting the Will
The proper distribution of the property remaining in Maria's trust depends on whether Genevieve intended for the property to be disbursed to John regardless of whether he is still living (in which case it would go to John's estate to be distributed according to his estate plan), or whether she intended for the property to go to John only if he survived Maria (in which case it would go to her estate to be distributed according to the rules of intestate succession). To ascertain Genevieve's intent we look to her will, the very purpose of which is to communicate that intent. Interpretation of a will is a legal issue we resolve using our independent judgment, without deference to the probate court's decision or reasoning. (Blech v. Blech (2018) 25 Cal.App.5th 989, 1000.)
The fundamental goal when interpreting a will is to give effect to the testator's intent. (Estate of Simoncini (1991) 229 Cal.App.3d 881, 889.) "In ascertaining the testator's intent, courts employ an objective test: the intention to be determined is that which is actually expressed in the language of the will." (Ibid.) The intention that governs is the one that appears in the will, "not some undeclared intention" that may have been in the testator's mind. (Ibid., citing Estate of Edwards (1988) 203 Cal.App.3d 1366, 1371.) For that reason, "we are not free to ignore the plain meaning of the words actually used by the testatrix in her will." (Estate of Simoncini, supra, at p. 890.)
Applying those rules, we conclude Genevieve did not intend to require that John survive Maria in order for the remaining trust property to be disbursed to him. Her will provides in relevant part: "Should my daughter die without surviving issue, then and in that event my trustee shall pay, deliver, and convey all the trust estate then remaining in its hands to my son JOHN E. TURCO." Those instructions for the disbursement of trust property upon Maria's death created a future remainder interest in favor of John. The will contains no language making that interest contingent on John surviving Maria. To impose such a condition, Genevieve would have had to state it in the will as she did with the general survivorship condition requiring anyone taking under the will to survive her by at least 30 days. Nowhere in the will are any words imposing a survivorship condition as to the remainder of Maria's trust. Genevieve made John's future interest contingent only on Maria dying without any surviving issue, not on him surviving Maria. Because the express condition has occurred, John is entitled to the remainder interest. Since John is no longer living, the property goes to his estate.
Respondents do not dispute the absence of an express survivorship condition as to the trust property. But they assert one is nonetheless implied based on the "will as a whole." They argue Genevieve's failure to provide for any transfer of property to John's issue suggests she intended for the remainder of Maria's trust to go to John only if he were living. But a survivorship condition requires a "literal basis" in the will; there must be "a clear intent deducible from the particular words employed in the instrument." (Estate of Ferry (1961) 55 Cal.2d 776, 787.) The intent deducible from the words of the will is that Genevieve did not intend to impose a survivorship condition because, quite simply, she did not include one. We decline to speculate about whether Genevieve harbored an intention different from what is expressed in her will, and we need not attempt to divine her motivation for not including a survivorship requirement in this instance. "Courts are not invested under the guise of construction with the privilege of rewriting the testator's will." (Keller v Bank of America National Trust and Savings (Keller) (1955) 134 Cal.App.2d 232, 236). We cannot insert a survivorship requirement where none exists.
Respondents also argue that the Probate Code sections governing failed transfers (Prob. Code, §§ 21109 and 21111) operate to bar a transfer of the trust property to John's estate. But the failed transfer statutes apply only when "the share of a transferee fails for any reason." (See Prob. Code, § 21111, subd. (b).) Because the trust remainder can pass to John's estate, the transfer Genevieve described in her will to occur upon Maria's death does not fail. Those statutes therefore do not apply.
Nor does respondents' citation to the anti-lapse statute, Probate Code section 21110, affect the outcome. That statute applies where a transferee fails to survive the transferor or fails to survive until "a future time required by the instrument." (Prob. Code, § 21110, subd. (a).) But that situation is not present here because John did survive Genevieve and the will does not contain any further requirement that he survive until some future time. As we have discussed, the will could have required that John survive Maria in order to receive the trust remainder, but it did not.
None of respondents' arguments can overcome the fundamental principle that the express language of the will controls, and there is no requirement expressed in the will that John survive Maria. We must give effect to the intention of the testator as expressed in the will, even if plausible arguments can be made about what Genevieve intended. (See Keller, supra, 134 Cal.App.2d 232, 236 [contrary arguments regarding testamentary intent are disregarded when the intent of the testator can be gathered from the wording of the will].)
B. Polk'S Interest and Standing
As an alternative ground for its ruling, the probate court found appellant Polk has no standing to bring a claim regarding distribution of the remainder of Maria's trust. Polk's asserted basis for standing is a financial interest in the remainder: Polk is a trustee of Teresa's trust created by John's estate plan, and Polk argues that because Genevieve's will left the property to the now-deceased John, under John's estate plan that property should be disbursed to Teresa's trust.
Under Probate Code section 11702, "[a]ny interested person" is entitled to claim an interest in a decedent's estate. An interested person includes any person "having a property right in or claim against a trust estate." (Prob. Code, § 48.) The concept encompasses anyone with "an interest of some sort that could be impaired, defeated, or benefited by the proceeding in question." (Lickter v. Lickter (2010) 189 Cal.App.4th 712, 727.) A court has discretion to determine whether a person is an interested party as described by the statute. (Estate of Sobol (2014) 225 Cal.App.4th 771, 782.) We therefore review the probate court's determination in that regard for abuse of discretion. (Ibid.) Under that deferential standard of review, we will not reverse the ruling unless it is outside the range of options allowed by the applicable law.
The law that applies here is set forth in Probate Code sections 48 and 11702, which together provide that anyone with a pecuniary interest that could be impaired, defeated, or benefited by the proceeding necessarily has standing. The probate court recognized that Polk's financial interest (i.e., that of Teresa's trust) could be affected by the proceeding, but it went on to decide that he is not an interested party with standing to assert a claim. That ruling conflicts with what the applicable law allows, and accordingly was an abuse of discretion.
The probate court's ruling recognized that even if Genevieve's will is interpreted to allow Maria's trust property to go to John, there has been no determination that under John's estate plan the property must go to Teresa's trust. In other words, whether the property ultimately goes to the trust created by John's estate plan and administered by Polk is an issue still in dispute. But the viability of that very question is what gives Polk standing. Teresa's trust is plainly affected by the ruling regarding the proper interpretation of Genevieve's will: if the will is construed as the probate court did, the trust represented by Polk gets nothing and that ends the matter; but if the will is interpreted the way we conclude it should be, Polk as a trustee for Teresa's trust can make a claim under John's estate plan for disbursement of the property. Because the probate court decided that the property should be returned to Genevieve's estate to be distributed by intestate succession, the court never reached the issue of whether John's estate plan makes Teresa's trust the appropriate recipient of the remainder property. The interests represented by Polk are therefore affected by the ruling in this proceeding, and he necessarily has standing.
Polk asks us to take judicial notice of certain documents relating to John's estate plan, including the decree of final distribution entered in the administration of John's estate. The request for judicial notice is unopposed, and we grant it. But accepting the existence of the documents is not the same as interpreting their content. There has been no ruling on whether John's estate plan makes Teresa's trust the proper recipient of the remainder of Maria's trust. As a reviewing court we will not decide the issue in the first instance, and we will therefore remand the matter to the probate court.
III. DISPOSITION
The order regarding standing and ascertaining beneficiaries is reversed. The matter is remanded to the probate court with directions to enter a new order declaring the property remaining in the trust established for the benefit of Maria J. Turco is to be disbursed to the estate of John E. Turco. The probate court shall then determine the proper distribution of that property according to the terms of John E. Turco's estate plan.
Costs are awarded to appellant by operation of California Rules of Court, rule 8.278, subdivision (a)(1).
WE CONCUR: Bamattre-Manoukian, Acting P. J. Wilson, J.