Opinion
B290526
08-03-2020
Kimberly RALLO et al., Plaintiffs and Appellants, v. Virginia O'BRIAN, as Trustee, etc., Defendant and Respondent.
Hunter Salcido & Toms and Robert L. Toms, Jr., Pasadena, for Plaintiff and Appellant Kimberly Rallo. Law Offices of Jon Udewitz, Jonathan J. Udewitz, Rolling Hills Estate; Jeff Lewis Law, Jeffrey Lewis, Rolling Hills Estate, and Sean C. Rotstan for Plaintiff and Appellant Adam Ross. Loeb & Loeb, Gabrielle A. Vidal and Anita P. Wu, Los Angeles, for Defendant and Respondent.
Certified for Partial Publication.
Under California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for publication with the exception of parts 1, 4, 5, and 6 of the Discussion.
Hunter Salcido & Toms and Robert L. Toms, Jr., Pasadena, for Plaintiff and Appellant Kimberly Rallo.
Law Offices of Jon Udewitz, Jonathan J. Udewitz, Rolling Hills Estate; Jeff Lewis Law, Jeffrey Lewis, Rolling Hills Estate, and Sean C. Rotstan for Plaintiff and Appellant Adam Ross.
Loeb & Loeb, Gabrielle A. Vidal and Anita P. Wu, Los Angeles, for Defendant and Respondent.
EGERTON, J. INTRODUCTION
" ‘The right to dispose of property in contemplation of death is as old as the right to acquire and possess property, and the laws of all civilized countries recognize and protect this right.’ " ( Estate of Della Sala (1999) 73 Cal.App.4th 463, 467, 86 Cal.Rptr.2d 569 ( Della Sala ).) This appeal stems from judgments entered after the trial court sustained demurrers without leave to amend to two probate petitions filed by Kimberly Rallo and Adam Ross—adult children of the decedent Hugh O'Brian. At issue is O'Brian’s right to choose to disinherit anyone claiming to be his heir after his death. Kimberly and Adam each claim a right to O'Brian’s assets under Probate Code section 21622 as children he omitted from his trust solely because he was unaware of their births. Because we conclude the petitions do not allege facts sufficient to state a cause of action, nor can they be amended to do so, we affirm the judgments.
We refer to appellants, as the trial court did, by their first names to avoid confusion. We intend no disrespect in doing so. Undesignated statutory references are to the Probate Code.
FACTS AND PROCEDURAL BACKGROUND
Hugh O'Brian, an actor best known for his role as Wyatt Earp in a popular 1950s television series, died on September 5, 2016. He established the Hugh O'Brian Trust in January 1992. In June 2006, O'Brian entered his only marriage with his long-time girlfriend Virginia Barber, now Virginia O'Brian. He was 81. O'Brian executed his Third Amendment to and Restatement of the Hugh O'Brian Trust in July 2009, and his Fourth Amendment to the Hugh O'Brian Trust in January 2011. We refer to these documents, collectively, as the "Trust." Virginia O'Brian is O'Brian’s surviving spouse and trustee of the Trust (trustee).
After O'Brian’s death, Adam, James Venverloh, Donald Etkes, and Kimberly brought claims in the Superior Court, seeking to receive an intestate share of O'Brian’s estate as his unintentionally omitted children under section 21622. The trustee demurred to both Kimberly's petition and Adam's and Venverloh's jointly-filed petition on the ground they failed to state a claim for relief. The trial court sustained the demurrers as to Kimberly and Adam with leave to amend. Kimberly filed a supplement to her "Petition to Establish Distribution Rights of Omitted Child," and Adam filed a "Second Amended Petition to Establish Omitted Child's Distribution Rights and Manner of Satisfying His Share."
Etkes did not pursue his claim. The trial court sustained the demurrer as to Venverloh without leave to amend. He did not appeal.
Consistent with the applicable standard of review, we draw our statement of facts from the amended pleadings and matters properly subject to judicial notice. ( Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58 ( Blank ); Landmark Screens, LLC v. Morgan, Lewis & Bockius, LLP (2010) 183 Cal.App.4th 238, 240, 107 Cal.Rptr.3d 373.) We treat as true " ‘all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.’ " ( Blank , at p. 318, 216 Cal.Rptr. 718, 703 P.2d 58.) 1. The Trust
Kimberly's petition quotes provisions of the Trust, and she attached the referenced Third Amendment/Restatement and Fourth Amendment to her petition. The trustee submitted a complete copy of the operative Trust instruments signed by O'Brian that contain additional language in Article Two omitted from Kimberly's version of the Trust. The trial court took judicial notice of the Trust documents submitted by the trustee as the complete Trust and considered the additional language.
The Trust allocates specific dollar amounts to about 20 or so of O'Brian’s named friends and family members, including Virginia and O'Brian’s brother, sister-in-law, and nieces and nephews, and individuals who worked for him, as well as to the Motion Picture and Television Fund. Upon Virginia's death, the residue of the Trust assets are to be allocated to the O'Brian Charitable Foundation.
In Article Two of the Trust, entitled "Declarations Regarding Family," O'Brian declares, "I have no children, living or deceased. [¶] I am intentionally not providing for HUGH DONALD ETKES (also known as HUGH DONALD KRAMPE), ADINA ETKES, JAMES E. VENVERLOH, BETTY DEAN, any of their descendants, and any other person who claims to be a descendant or heir of mine under any circumstances and without regard to the nature of any evidence which may indicate status as a descendant or heir."
This second sentence is omitted from the version of the Trust Kimberly attached to her petition.
Paragraph 14 of Article 14 of the Trust, entitled "Omitted Heirs," similarly states, "Except as otherwise provided in this Agreement, I have intentionally and with full knowledge omitted to provide for HUGH DONALD ETKES (also known as HUGH DONALD KRAMPE), ADINA ETKES, JAMES E. VENVERLOH, BETTY DEAN, the descendants of any of them, and any of my heirs who may be living at the date of my death." The Fourth Amendment to the Trust does not change these provisions.
2. Kimberly
From about January 1962 to February 1963, O'Brian dated Kimberly's mother, Carol Ann Schaeffer (now Carol Ann Henson). Schaeffer discovered she was pregnant in February or March 1963. O'Brian, a film star, was out of the country at the time, so Schaeffer contacted his agent. The agent gave her money and an address of a doctor in Tijuana and told her to " ‘take care of it.’ " Schaeffer did not end the pregnancy and was asked to see a doctor O'Brian knew.
Schaeffer became romantically involved with Raymond Cohen and married him in June 1963 before Kimberly was born. Kimberly was born on August 31, 1963, and O'Brian paid the doctor who delivered her. Cohen is listed as Kimberly's father on her birth certificate, but O'Brian is her biological father.
Kimberly alleges O'Brian was not aware she was his child at the time he executed the Trust. The petition alleges Etkes and Venverloh claimed to be O'Brian’s sons and he specifically excluded them from the Trust. "If O'Brian was aware that Rallo was his child or even claimed to be his child at the time of execution of his Trust, he would have specifically mentioned Rallo one way or another," but did not. Kimberly alleges DNA evidence she submitted to "23andMe" shows she is a first cousin of O'Brian’s niece and nephew and a half-sister of Venverloh, "who claimed to be a son of O'Brian."
The supplement to the petition adds the following allegations: O'Brian failed to provide for Kimberly in his Trust "solely because [he] was unaware of [her birth] at the time he executed the Trust.... [He] suffered from cognitive decline in his 80s and at other times." Based on Kimberly's information and belief, O'Brian was diagnosed with Alzheimer's disease "or other significant cognitive mental decline." She alleges O'Brian "completely forgot" about her when he executed his Trust due to "his cognitive impairment and the passage of time." Had O'Brian known Kimberly "as his child had been born at the time he executed his Trust, [he] would have provided for [her]."
Kimberly's initial petition only alleged O'Brian failed to provide for her in his Trust "solely because O'Brian was unaware of the birth of Rallo under section 21622. O'Brian was unaware that Rallo was his child at the time of execution of his testamentary instruments effective at the time of [his] death."
Kimberly alleges she is entitled under section 21622 to a share of O'Brian’s estate equal to what she would have received as his child had he died intestate. 3. Adam
Adam's second amended petition alleges he is a biological child of O'Brian. Adam did not know O'Brian was his father during O'Brian’s lifetime, and O'Brian "never had any knowledge of Adam." Adam alleges he has not received a full copy of O'Brian’s testamentary documents. He alleges that, at the time O'Brian executed those documents, O'Brian "was informed and believed that he had no natural born children nor others that he adopted. The sole reason that [O'Brian] did not provide for Adam in his testamentary documents is because [he] was unaware of Adam's birth." The petition does not attach the Trust.
Adam alleges he is entitled to his intestate share of O'Brian’s estate or the assets held in his trust as an omitted child under section 21622.
4. Demurrers
The trustee again demurred to Kimberly's supplemented petition on February 6, 2018, and to Adam's second amended petition on February 13, 2018, on the ground they failed to allege facts sufficient to state a legal basis for relief under section 21622. On April 10, 2018, the trial court heard argument on both demurrers and took the matter under submission. On April 16, 2018, the trial court issued its written rulings sustaining the demurrers without leave to amend. The court entered judgments against Kimberly and Adam on May 4, 2018. They separately appealed from the judgments of dismissal.
A different judicial officer, Judge Elizabeth A. Lippitt, heard and decided this second round of demurrers. Judge Barbara R. Johnson heard and decided the earlier demurrers.
DISCUSSION
Kimberly and Adam both contend they alleged sufficient facts to state a claim under section 21622. They argue the Trust's general disinheritance clause does not preclude an unknown child from recovering under section 21622, and they adequately alleged facts showing O'Brian omitted them from his Trust solely because he was unaware of their births. Kimberly also argues she should be able to prove her claim with DNA evidence.
Adam asserts several additional contentions of error. He argues the trial court improperly took judicial notice of the Trust, the Probate Code does not allow for demurrers in response to petitions, the trial court did not describe what he needed to amend or give him an opportunity to cure "any purported defects" after sustaining the trustee's first demurrer with leave to amend, and he sufficiently pleaded a claim under section 248.
See footnote *, ante .
2. Applicable law
California's Probate Code provides a statutory right of recovery to children omitted from a decedent's will or trust. (§ 21600 et seq.) Section 21622 states: "If, at the time of the execution of all of decedent's testamentary instruments effective at the time of decedent's death, the decedent failed to provide for a living child solely because the decedent believed the child to be dead or was unaware of the birth of the child , the child shall receive a share in the estate equal in value to that which the child would have received if the decedent had died without having executed any testamentary instruments." (Italics added.) A child claiming relief under this section bears "the burden of proof regarding the parent's intent in omitting the child from the will [or trust]." ( Estate of Mowry (2003) 107 Cal.App.4th 338, 343, 131 Cal.Rptr.2d 855 ( Mowry ).) An omitted child born after the decedent's execution of his testamentary instruments is treated differently. Under section 21620, such a child "shall receive a share in the decedent's estate equal in value to that which the child would have received if the decedent had died without having executed any testamentary instrument" unless the decedent's intent to omit the child is demonstrated through the specific circumstances identified in section 21621. Relevant here, the child will not receive a share of the estate if the objecting party establishes, "The decedent's failure to provide for the child in the decedent's testamentary instruments was intentional and that intention appears from the testamentary instruments." (§ 21621, subd. (a).) Thus, an after-born child does not bear the burden of providing the decedent's intent in omitting him or her from a will or trust.
" ‘[D]ecedent's testamentary instruments’ means the decedent's will or revocable trust." (§ 21601, subd. (a).)
The child also will not recover if the decedent provided "substantially all the estate to the other parent of the omitted child," or the decedent provided for the omitted child "by transfer outside of the estate" and intended the transfer to be in lieu of providing for the child in his or her will or trust. (§ 21621, subds. (b), (c).)
The Probate Code did not always distinguish between omitted children born before execution of the testamentary documents and those born after execution. Enacted in 1931, former section 90 reflected the state's "prior public policy against unintentional omission of a child from a parent's will." ( Mowry, supra, 107 Cal.App.4th at p. 341, 131 Cal.Rptr.2d 855.) That section provided, " ‘When a testator omits to provide in his will for any of his children, or for the issue of any deceased child, whether born before or after the making of the will or before or after the death of the testator, and such child or issue are unprovided for by any settlement, and have not had an equal proportion of the testator's property bestowed on them by way of advancement, unless it appears from the will that such omission was intentional, such child or such issue succeeds to the same share in the estate of the testator as if he had died intestate.’ " ( Della Sala , supra , 73 Cal.App.4th at p. 468, 86 Cal.Rptr.2d 569.) Former section 90 thus presumed the omission of any child from a will was unintentional ( Mowry, supra , 107 Cal.App.4th at p. 343, 131 Cal.Rptr.2d 855 ), unless the testator's intent to do so appeared in the will, similar to the exception now stated in section 21621.
Section 90 was criticized, however, as "serv[ing] to frustrate the testator's wishes." ( Della Sala, supra , 73 Cal.App.4th at p. 469, 86 Cal.Rptr.2d 569.) The Legislature repealed section 90 and enacted sections 6570 to 6572—the predecessors to sections 21620 to 21622. ( Della Sala , at p. 469, 86 Cal.Rptr.2d 569.) Those sections are based on section 2-302 of the Uniform Probate Code, which distinguishes between after-born children and children living when a will or trust is executed. ( Della Sala , at p. 469, 86 Cal.Rptr.2d 569.) After reviewing the legislative history, the court in Della Sala concluded the Legislature intended to change the law when it repealed section 90. ( Della Sala , at p. 469, 86 Cal.Rptr.2d 569.) The court explained, "the Legislature recognized that usually a failure to provide for a living child is intentional and concluded that such an intent should be upheld in the usual case." ( Id. at p. 470, 86 Cal.Rptr.2d 569.)
The Uniform Probate Code's provision allowing an omitted living child to recover applied only to children mistakenly believed to be dead. The Legislature drafted California's provision to include unknown children as well.
Accordingly, the enactment of the predecessor to section 21622 changed the statutory treatment of omitted children living at the time the decedent executed his will or trust. ( Mowry, supra , 107 Cal.App.4th at p. 343, 131 Cal.Rptr.2d 855 ; Della Sala, supra , 73 Cal.App.4th at p. 469, 86 Cal.Rptr.2d 569.) Now, a living child who desires to "override" a parent's testamentary disposition of his property to obtain a distribution contrary to it must prove "the sole reason [the parent] did not provide for [the child] was a mistaken belief [the child] was dead [or an unawareness of the child's birth]." ( Della Sala, at pp. 469-470, 86 Cal.Rptr.2d 569.) The presumption against unintentional omission remains intact for after-born children, however. They are "entitled to an intestate share unless an intention not to provide for the child appears from the will," or other exception under section 21621 is demonstrated. ( Della Sala , at p. 469, fn. 4, 86 Cal.Rptr.2d 569, italics added.)
In Della Sala , the petitioner contended he was entitled to a share of his father's estate because his father mistakenly believed he was dead at the time he executed his will. (Della Sala , supra, 73 Cal.App.4th at p. 465, 86 Cal.Rptr.2d 569.) The appellant argued the estate had the burden of proving his father was aware of his child's "continued existence" and intentionally omitted him from the will. (Id. at p. 467, 86 Cal.Rptr.2d 569.) The court of appeal rejected that contention, finding the Legislature changed the law when it repealed former section 90. (Della Sala , at p. 469, 86 Cal.Rptr.2d 569.) The decedent had told his executor he had no living relatives, but nevertheless visited petitioner and had contact with him after that comment. (Id. at pp. 470-471, 86 Cal.Rptr.2d 569.) The court concluded the petitioner had not proved his father believed he was dead and thus could not recover under the predecessor to section 21622. (Della Sala , at p. 471, 86 Cal.Rptr.2d 569.)
It is undisputed appellants were born before O'Brian executed his Trust. Accordingly, they seek a share of O'Brian’s estate under section 21622 ; section 21620 does not apply to them. To survive demurrer, therefore, appellants must allege facts showing "the sole reason" O'Brian did not provide for them was his unawareness of their births.
3. The trial court properly interpreted section 21622
Kimberly and Adam both assert a general disinheritance clause—like the one found in the Trust—cannot defeat a claim under section 21622. They contend a general disinheritance clause may defeat only a claim brought by an unknown child born after the execution of a will or trust under section 21620 because section 21621—which they argue gives effect to general disinheritance clauses—expressly applies only to section 21620 claims.
The principles of statutory construction are well-established. " ‘We begin by examining the statutory language, giving the words their usual and ordinary meaning.’ " ( Estate of Pryor (2009) 177 Cal.App.4th 1466, 1471, 99 Cal.Rptr.3d 895.) "The words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible." ( Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386-1387, 241 Cal.Rptr. 67, 743 P.2d 1323.) " ‘If there is no ambiguity, then we presume the lawmakers meant what they said , and the plain meaning of the language governs. [Citations.]’ " ( Estate of Pryor , at p. 1471, 99 Cal.Rptr.3d 895.) "[W]hen the language of a statute is clear, we need go no further." ( Switzer v. Wood (2019) 35 Cal.App.5th 116, 128, 247 Cal.Rptr.3d 114.) " ‘If, however, the statutory terms are ambiguous, then we may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history.’ " ( Estate of Pryor , supra , 177 Cal.App.4th at p. 1471, 99 Cal.Rptr.3d 895.) We also need not "follow the plain meaning of a statute when to do so would frustrate the manifest purpose of the legislation as a whole or otherwise lead to absurd results." ( Switzer , at p. 129, 247 Cal.Rptr.3d 114.) However, " ‘[t]o justify departing from a literal reading of a clearly worded statute, the results produced must be so unreasonable the Legislature could not have intended them.’ " ( Ibid. )
a. Section 21622 does not preclude application of a general disinheritance clause
Appellants argue that by separating former section 90 into three separate sections, the Legislature "limited the application of general disinheritance clauses" to claims brought under section 21620. The plain language of the omitted child statutes, sections 21620 - 21622, belie appellants’ interpretation. True, section 21621 identifies the statutory exceptions to a section 21620 claim. Yet, no statute states that a general disinheritance clause—like that described in section 21621, subdivision (a)—may not act to omit an unknown child born before the decedent executed the will or trust containing the disinheritance clause.
The plain language of section 21621 merely states that an after-born child cannot recover under section 21620 if one of the stated circumstances—including the existence of a general disinheritance clause—is demonstrated. That statute does not state, however, that the circumstances it describes are effective against section 21620 claims alone. Quite the opposite: section 21621 limits an objector's ability to prevent an after-born child from recovering part of an estate under section 21620. In other words, recovery for an omitted after-born child under section 21620 is mandatory unless the decedent's intent not to provide for the child in a will or trust is established through one of the three enumerated exceptions.
In contrast, an omitted child's recovery under section 21622 is conditional : (1) the decedent must have been unaware of the child's birth (or mistaken about the child's death), and (2) the decedent must have failed to provide for the unknown child solely because of that lack of awareness (or mistaken belief). The language is clear. Recovery under section 21622 is available only if the child can prove the two conditions to demonstrate the omission was unintentional. In contrast, a child's omission is presumed unintentional under section 21620 unless proof of the testator's intent exists as stated in section 21621. But nothing in the plain language of section 21622 or elsewhere prevents a trustor from expressing his intent to disinherit potential heirs living at the time—even if unknown to the trustor—by including a general disinheritance clause in his trust. And, because there could be any number of ways a decedent could decide not to provide for unknown heirs, including children, there would be no reason for the Legislature to enumerate those reasons in section 21622. The section's lack of reference to section 21621, therefore, does not preclude the application of a general disinheritance clause to an unknown child claiming relief under section 21622 as appellants contend. Rather, it merely shows a general disinheritance clause, or other exception stated in section 21621, is not required for an omitted child's claim to fail under section 21622.
Mowry and Della Sala support this interpretation. As appellants note, the court in Mowry explained that by its terms and placement after section 21620, "section 21621 is meant to apply only when section 21620 is applicable: where a child is born or adopted after execution of the testamentary document." ( Mowry, supra , 107 Cal.App.4th at p. 341, 131 Cal.Rptr.2d 855.) There, the omitted child was born before her parent signed his will, but nevertheless contended section 21621 applied, requiring the testator's intent not to provide for her to appear on the face of his will. ( Mowry , at pp. 340-341, 131 Cal.Rptr.2d 855.) Because section 21620 did not apply, the child bore the burden to prove her parent mistakenly omitted her from his will. She did not, and thus could not recover part of her parent's estate as an omitted child. ( Mowry , at pp. 343-344, 131 Cal.Rptr.2d 855.)
The court in Mowry did not conclude, however, that a disinheritance clause cannot demonstrate an intent to omit a living child from a will. To the contrary, the court concluded a will need not express the testator's intent to exclude a living child to defeat a claim under section 21622, as is required to preclude an after-born child from recovering under section 21620. Moreover, the court in Della Sala acknowledged that, through the omitted children statutes, "the Legislature has attempted to balance the possibility of inadvertent disinheritance against the freedom of testamentary disposition of property with respect to the paramount concern of carrying out the testator's intent." ( Della Sala, supra , 73 Cal.App.4th at p. 468 & fn. 3, 86 Cal.Rptr.2d 569 [noting the court was not addressing the "alleged public policy against disinheritance of children," as the Probate Code elsewhere provides for the support of dependent children upon a parent's death "without regard to testamentary disposition"].) The court recognized, however, "the paramount concern in the construction of wills is to ascertain and give effect to the intent of the testator, as far as possible." ( Id . at p. 468, 86 Cal.Rptr.2d 569.)
It does not logically follow—as appellants assert—that a will or trust actually expressing the decedent's intent to exclude a living child—known or unknown—cannot apply to defeat an omitted child's claim under section 21622. The existence of a general disinheritance clause bears on the testator's or trustor's intent. If the decedent's testamentary documents show his intent to exclude potential children, even those whose identities are unknown to him, then the decedent did not fail to provide for an unknown child solely because he was unaware of the child's birth.
It would be absurd to read section 21622 as requiring a court to uphold a decedent's intended testamentary disposition unless the omitted child can show the sole reason the decedent did not provide for the child was his unawareness of the child's birth ( Della Sala, supra , 73 Cal.App.4th at p. 469, 86 Cal.Rptr.2d 569 ), but to ignore a provision in the decedent's will or trust expressing his intent not to provide for any children about whom he was unaware.
In short, the trial court did not err in considering the Trust's disinheritance provisions to assess whether appellants could state facts showing they were entitled to relief under section 21622.
Appellants also contend a general disinheritance clause cannot apply to unknown living children because the testator's mistake as to an unknown child or child thought to be dead cannot appear on the face of a will or trust. Nothing in the statutory language indicates that, by including unknown children and children mistakenly thought dead under section 21622, the Legislature intended to prevent a general disinheritance clause from taking effect to exclude living children who may not become known until after a testator's death. To the contrary, if the face of the trust or will shows a reason why the testator intended not to provide for a general class of heirs or children about whom he was unaware, then by the express language of section 21622 the unknown child could not recover. Nothing requires the testator to name the unknown child—and of course he could not.
b. Section 21622 requires appellants to plead facts showing O'Brian was unaware of their existence and his unawareness was the sole reason for omitting them from the Trust
Adam contends the distribution right under section 21622 for an unknown child born before the execution of a testamentary document "exists irrespective of the decedent's intentions." He asserts section 21622 "carves out a distribution right for ... unknown children solely because they are unknown." Adam thus contends the statute requires only that he allege he was unknown to O'Brian, not that O'Brian would have treated him differently had he been aware of him. We cannot agree.
The statute unambiguously carves out a distribution right for unknown children only if they can prove the only reason the decedent did not provide for them was because he did not know they existed. Stated another way, to recover under section 21622, the omitted child must show the decedent would have provided for him but for the fact that the decedent was unaware of the child's existence when he executed his will or trust.
As the trustee notes, "solely" is defined as "to the exclusion of all else" and "singly." Synonyms include "exclusively" and "only." (Merriam-Webster.com Dict. < http://www.merriam-webster.com/dictionary/solely> [as of July 30, 2020], archived at < https://perma.cc/29P5-MKRG>.)
Adam "has the burden of proof as to each fact essential to his claim for relief." ( Della Sala, supra , 73 Cal.App.4th at p. 470, 86 Cal.Rptr.2d 569.) As we have discussed, unlike after-born children, the law does not presume living children like appellants were unintentionally omitted because they were unknown. Appellants’ burden of proof, therefore, includes "[O'Brian’s] intent in omitting [them] from the will [or trust]." ( Mowry, supra , 107 Cal.App.4th at p. 343, 131 Cal.Rptr.2d 855.) Adam cannot simply plead O'Brian was unaware of his birth to demonstrate O'Brian mistakenly omitted him from the Trust, as Adam contends. Rather, as noted, the statute, and authority interpreting it, clearly require the omitted child to prove the decedent's only reason for failing to provide for the child was his unawareness of the child or mistake as to his death —not the decedent's unawareness or mistake alone. Thus, as the trial court correctly found, to obtain a distribution of the Trust assets contrary to its express terms under section 21622, appellants must plead and prove facts demonstrating "the sole reason" O'Brian did not provide for them in his Trust was his unawareness of their births. ( Della Sala, supra , 73 Cal.App.4th at p. 469, 86 Cal.Rptr.2d 569.)
See footnote *, ante .
The judgments against Kimberly Rallo and Adam Ross are affirmed. The trustee is to recover her costs on appeal.
We concur:
EDMON, P. J.
LAVIN, J.