Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County Super. Ct. No. A236034, Marjorie Laird Carter, Judge.
Ferruzzo & Ferruzzo, and David N. Shaver for Appellant.
Law Offices of Norbert R. Bunt, Norbert R. Bunt, Dwight G. Tipping, Jr., for Respondent.
OPINION
O’LEARY, ACTING P. J.
Bert E. Shook (Bert) filed an application pursuant to Probate Code section 21320 to determine whether the probate petition he planned to file would violate the no contest clause in the trust executed by his mother, the decedent, Lottie M. Shook (Lottie). Relying on section 21305, subdivision (a), Bert argued his proposed petition challenging a trust amendment, executed a few months before Lottie’s death, would not constitute a contest. The trial court determined section 21305, subdivision (a), was inapplicable and, therefore, under the common law the proposed petition would invoke the no contest clause. We conclude this ruling was erroneous as a matter of law and reverse the order.
All further statutory references are to the Probate Code.
I
Facts
On December 16, 1999, Lottie created her trust. She named herself as trustor. There were four named beneficiaries: Bert and Lottie’s deceased daughter’s three children, John Delich, Darla Delich, and Dana Enos. The trust designated one-half of the estate to Bert, and the other half was equally divided among the grandchildren (John (one-sixth), Darla (one-sixth), and Dana (one-sixth)). Bert and Helen Goyette were appointed Lottie’s successor co-trustees.
Section 8.4 of the trust, entitled, “No Contest” provided: “In the event any beneficiary under this trust shall singly, or in conjunction with any person or persons, contest in any court the validity of this trust or of a deceased [t]rustor’s last will or shall seek to obtain an adjudication in any proceeding in any court that this trust or any of its provisions or that such will or any of its provisions is void, or seek otherwise to void, nullify or set aside this trust or any of its provisions, then the right of that person to take any interest given to him or her by this trust shall be determined as if the person had predeceased with no issue the execution of this declaration of trust.”
On June 28, 2005, Lottie executed a document entitled, “Amendment Number One To The Lottie M. Shook Trust Created By Declaration Of Trust Dated December 16, 1999.” The amendment changed the distributions to the beneficiaries. Rather than receiving just one-sixth of the estate, John (the grandson) was given Lottie’s property in Inyo County, California, as well as the first right of refusal to purchase her residence in Cypress, California. The amendment stated the remaining estate was to be divided into fractional shares as follows: three-fourths to John, and one-fourth to her son Bert. The other grandchildren were disinherited unless John was to predecease Lottie, in which case his share would be allocated equally to his issue and Dana’s issue. But, if Bert were to predecease Lottie, his share would all be distributed to John.
Lottie also changed the designation of her successor trustees. She appointed John to act as sole successor trustee, and if he was unable, then she nominated Goyette. The last sentence of the amendment stated, “In all other respects, said trust instrument is reaffirmed and republished in its entirety.” Lottie passed away three months after she executed the amendment.
A few months later, Bert filed an application asking the trial court if he could question the validity of the amendment without violating the no contest provision in the original trust. After holding a trial, and considering the parties’ arguments, the court ruled section 21305, subdivision (a)(3), “does not apply” and consequently, “the proposed petition would be a violation of the no contest clause.”
II
Overview of the Law Concerning No Contest Clauses and Section 21320
A no contest clause “essentially acts as a disinheritance device, i.e., if a beneficiary contests or seeks to impair or invalidate the trust instrument or its provisions, the beneficiary will be disinherited and thus may not take the gift or devise provided under the instrument.” (Burch v. George (1994) 7 Cal.4th 246, 265 (Burch).) “Such clauses are valid in California and are favored by the public policies of discouraging litigation and giving effect to the testator’s expressed purposes. [Citation.] However, because a no contest clause may result in a forfeiture, ‘a court is required to strictly construe it and may not extend it beyond what was plainly the testator’s intent. [Citation.]’ [Citation.]” (McIndoe v. Olivos (2005) 132 Cal.App.4th 483, 487 (McIndoe).) “Under section 21320, a beneficiary may, without violating a no contest clause, apply to the court for a determination whether a particular act would be a contest provided that no determination of the merits of the petition is required. Where, as here, a trial court rules on a section 21320 application without referring to extrinsic evidence, the appeal presents a question of law and requires us to independently construe the trust to determine whether the proposed petition violates the no contest clause. [Citation.]” (Ibid.)
III
Application of Section 21305
“In 2000, the Legislature amended the law governing no contest clauses, adding section 21305. [Citation.] The new section, effective January 1, 2001 [citation], listed for the first time actions that did not constitute contests ‘unless expressly identified in the no contest clause as a violation of the clause.’ [Citation.]” Subdivisions (a)(3) and (c) of section 21305 are relevant to this appeal. As amended in 2002, section 21305, subdivision (a), provides the following three actions do not constitute a contest unless they are specifically “identified in the no contest clause as a violation of the clause”: (1) “filing of a creditor’s claim[;]” (2) filing an action “to determine the character of property[;]” and (3) challenging the validity of an instrument “other than the instrument containing the no contest clause.” (Italics added.) The practical effect of subdivision (a)(3), is significant. “‘As the Senate Judiciary Committee analysis proclaimed: “[G]eneric no contest clauses [are] obsolete.”’” (Estate of Rossi (2006) 138 Cal.App.4th 1325, 1335.) For a no contest clause to be effective (in post-2001 trust instruments), it must explicitly mention amendments, or the amendment must itself contain a no contest clause. (Ibid.)
Subdivision (c), provides: “Subdivision (a), does not apply to a codicil or amendment to an instrument that was executed on or after January 1, 2001, unless the codicil or amendment adds a no contest clause or amends a no contest clause contained in an instrument executed before January 1, 2001.” (§ 21305, subd. (c).)
In Estate of Rossi, the court harmonized the language in subdivisions
(a), and (c), of section 21305. (Estate of Rossi, supra, 138 Cal.App.4th at p. 1338.) “Subdivision (c) merely clarifies that a testator . . . with a post-2001 will or trust that already contains a no contest clause that meets subdivision (a)’s specificity requirements need not repeat the no contest clause in a codicil or amendment in order to have the no contest clause apply to the will or trust.” (Ibid.) In other words, if a post-2001 trust contains a no contest clause which specifically states it applies to future trust amendments, there is no need to repeat the no contest clause in the amendment. If the post-2001 trust does not meet subdivision (a)’s specificity requirements, the no contest clause will not apply and challenges can be made to the trust amendment. (Id. at p. 1328.)
The court reasoned, “Subdivision (c) helps clarify what happens when the instrument containing the no contest clause is executed before January 1, 2001, and a codicil and/or amendment is executed after that date. [T]he plain language of subdivision (a) places new requirements of specificity on the no contest clauses contained in instruments executed on or after January 1, 2001. . . . [¶] As to wills, trust, codicils, and amendments executed before January 1, 2001, the common law and rule of strict construction continues to govern.” (Estate of Rossi, supra, 138 Cal.App.4th at pp. 1338-1339.) Consequently, “If the testator . . . of a pre-January 1, 2001 instrument never revisits the original no contest clause and a codicil or amendment neither adds nor changes it, then common law and the rule of strict construction govern the no contest clause of the estate plan as written. If, on the other hand, a codicil or amendment ‘adds a no contest clause or amends a no contest clause contained in an instrument executed before January 1, 2001,’ the specificity requirements of subdivision (a) apply.” (Ibid. [specificity requirements of section 21305, subdivision (a), mandates certain acts must be “expressly identified in the no contest clause” to constitute a contest].)
The court further reasoned, “Our interpretation of section 21305 as a whole reflects fundamental fairness. It gives effect to the Legislature’s clear intent that section 21305 apply prospectively. It also effectuates the Legislature’s intent that beginning on January 1, 2001, testators and settlors expressly identify in no contest clauses—whether they appear in wills, trusts, codicils, or amendments—the actions that violate the no contest clauses.” (Estate of Rossi, supra, 138 Cal.App.4th at p. 1339.)
Finally, the court in Estate of Rossi clarified that for purposes of applying section 21305, an amendment to a trust is a separate instrument from the trust. (Estate of Rossi, supra, 138 Cal.App.4th at p. 1338.) It stated, “The language in subdivision (a)(3) clearly recognizes instruments or other documents separate from the instrument containing the no contest clause, and that those separate instruments or documents may be the subject of a safe harbor challenge.” (Ibid.) Subdivision (a)(3) expressly states challenges may be made as to the validity of “an instrument, contract, agreement, beneficiary designation, or other document, other than the instrument containing the no contest clause.” (§ 21305, subd. (a)(3).) The court recognized the trust, will, and trust amendment were “all ‘instruments’ within the meaning of section 45 because they are ‘a will, trust, . . . or other writing that designates a beneficiary or makes a donative transfer of property.’” (Estate of Rossi, supra, 138 Cal.App.4th at pp. 1335-1336.)
Applying the above logic, the court in Estate of Rossi, held the beneficiaries proposed petitions challenging a trust amendment would not constitute a contest. It was undisputed the trust amendment, will, and trust were all executed after January 1, 2001. (Estate of Rossi, supra, 138 Cal.App.4th at pp. 1335-1336.) The court determined the original will and trust instruments failed to comply with section 21305’s requirement “that the enumerated actions be expressly identified in the no contest clause as violations in order to constitute a contest[,]” and therefore, the amendment was “subject to challenge under subdivisions (a)(3) and (c).” (Id. at p. 1338.) It rejected any suggestion subdivision (a)(3), was inapplicable because the amendment became part of the trust. It also rejected the argument subdivision (a)(3), only applied to nontestamentary instruments. The court concluded, “[W]e are concerned here with the intent of the Legislature, not [the testator’s] intent. Different rules apply and we look to the language of section 21305, not to the language of the instruments executed by [the testator], to determine whether the [beneficiary’s] proposed petition constitutes a contest under subdivision (a)(3).” (Id. at p. 1340.)
IV
Legal Analysis
In the case before us, and unlike the case in Estate of Rossi, the trust was originally executed before January 1, 2001, and the amendment executed in 2005, after the effective date of section 21305. As explained in Estate of Rossi, if Lottie had not revisited the original no contest clause, and the amendment neither changed it nor added a no contest clause, the rule of strict construction would govern the no contest clause of the estate plan as written. However, the record shows Lottie did revisit the original no contest clause by expressly providing in the amendment that her trust “is reaffirmed and republished in its entirety.” This language served to effectively redate the trust to 2005, thus subjecting it to the new specificity requirements contained in section 21305, subdivision (a).
The parties’ dispute primarily revolves around whether the redated 2005 trust and 2005 amendment should be treated as one or two instruments. For if they are two instruments, Bert can challenge the amendment as an instrument separate from the instrument containing the no contest clause under section 21305, subdivision (a)(3). If the two are integrated into one instrument, section 21305, subdivision (a)(3), does not apply.
John argues the clause “reaffirming” Lottie’s intention the provisions of her original trust be applied to her amendment means the trust and amendment are to be treated as one instrument. His only support for this argument is the ancient “republication doctrine,” discussed most recently in cases published in the early 1900s, and applied to disputes concerning wills. For example, in In re Estate of Pence (1931) 117 Cal.App. 323, 329-330, the court stated, “‘The execution of a codicil, referring to a previous will, has the effect to republish the will, as modified by the codicil.’ [Citation.] ‘Several testamentary instruments, executed by the same testator are to be taken and construed together as one instrument.’ [Citation.] In [re] Estate of Cutting, [(1916)] 172 Cal. 191, 196 . . ., where the court had occasion to deal with this question, the court said: ‘The codicil refers to the will, and operates as its republication, and the two are to be regarded as forming but one instrument, speaking from the date of the codicil.’ Thus the general rule is clear. It is also true, however, as a rule of construction, that the intention of the testator must be preserved if possible. The courts have in many instances refrained from applying the rule regarding republication by codicil with all the severity which would attend the interpretation of a new will by which all previous wills had been set aside.” (See also In re Estate of Matthews (1917) 176 Cal. 576, 598.)
Without supporting authority, John concludes the same reasoning applies to trusts, and therefore, it is settled “the legal effect of republication and the ‘one consistent whole’ doctrine is that the Shook Trust as republished by the 2005 Amendment . . . stands as one single instrument that includes the original no contest clause.” We disagree.
The cases cited by John discussing the republication rule, concern the process of interpreting a will for purposes of determining the decedent’s intent. As noted in one well respected treatise, application of the republication rule ordinarily means the “the will is considered as if executed at the later date of the codicil [Citations.] . . . [¶] But the doctrine of republication is only a rule of construction designed to carry out the testator’s probable intention, and it will not be applied where the result would be so inequitable as to appear contrary to that intention. [Citations.]” (14 Witkin, Summary of Cal. Law (10th ed. 2005) Wills & Probate, § 161, p. 234, italics added.)
As noted in Estate of Rossi, rules of interpretation must not be confused with “the process of construing a statute for purposes of effectuating the Legislature’s intent.” (Estate of Rossi, supra, 138 Cal.App.4th at p. 1336.) Accordingly, the fact a will and codicil may sometimes “be regarded as forming one instrument,” for purposes of ascertaining the testator’s intent, does not create the rule a trust amendment reaffirming a prior instrument should be integrated and treated as one instrument for purposes of applying section 21305. We found no authority, and John cites to none, holding one instrument’s express “reaffirmation” and “republication” of another instrument necessarily integrates them together into one instrument for all purposes.
To the contrary, a similar argument was rejected by the court in Estate of Rossi. The respondent argued section 21305 was inapplicable because the testator intended to incorporate the amendment into the original trust declaration. The court determined the party was relying on “cases involving the interpretation of testamentary instruments and [that] properly recite the rule that when construing a will or trust, the intent of the trustor prevails and ‘“‘must be ascertained from the whole of the trust instrument, not just separate parts of it. [Citation.]’”’ [Citations.] [These courts have also cautioned] that ‘the rule that two testamentary instruments should be construed together, “like any other rule of construction, is but a guide for the purpose of ascertaining”’ the intent of the testator. [Citation.]” (Estate of Rossi, supra, 138 Cal.App.4th at p. 1340.)
The court in Estate of Rossi concluded, “As we explained, we are concerned here with the intent of the Legislature, not [the testator’s] intent. Different rules apply and we look to the language of section 21305, not to the language of the instruments executed by [the testator], to determine whether [the challenging party’s] proposed petition constitutes a contest under subdivision (a)(3). Thus, even if we were to accept . . . [the] argument that the second amendment and the original trust together created a single, integrated document for purposes of determining [the testator’s] intent, the argument does not help [respondent] in the circumstances of this case. The will, trust and second amendment are separate instruments under section 45, and [the testator] executed all three instruments in 2003, long after the effective date of section 21305. He was therefore subject to its provisions.” (Estate of Rossi, supra, 138 Cal.App.4th at p. 1340.)
This analysis answers John’s argument Lottie’s intent was to make the no contest provision in her 1999 trust applicable to the 2005 amendment. The determination of whether the petition is a contest, and section 21305 applies, concerns the intent of the Legislature, not Lottie’s intent.
It is well settled, “To determine the Legislature’s intent, courts look first to the language of the statute, giving effect to its plain meaning. [Citations.]” (Estate of Rossi, supra, 138 Cal.App.4th at p. 1336, internal quotation marks omitted.) Section 21305 simply applies to “instruments” executed after January 1, 2001. It plainly states challenges may be made to the validity of “an instrument, contract, agreement, beneficiary designation[,] or other document, other than the instrument containing the no contest clause.” (§ 21305, subd. (a)(3).) Pursuant to section 45, “instrument” simply means “a will, trust, deed, or other writing that designates a beneficiary or makes a donative transfer of property.” Giving effect to its plain meaning, we find Lottie’s trust amendment certainly qualifies as an “instrument” under section 45 as the document both designated a beneficiary and made a donative transfer of property. It is an instrument that can be challenged under section 21305, subdivision (a)(3), because it was executed after January 1, 2001, and is not the same physical document as the one containing the no contest clause.
Our review of several estate planning manuals turned up nothing additional to support John’s claim the two instruments were necessarily integrated into one for purposes of section 21305. Rather, we found one guide that recommended if the testator wishes a no contest clause to apply to a trust amendment, a new no contest clause should be included in the amendment unless the original trust’s no contest clause expressly applies to amendments. (2 Drafting Cal. Revocable Trusts (Cont.Ed.Bar 4th ed. 2006) § 20.01, p. 679.) This handbook further instructed, “A restatement of the entire trust is recommended if the proposed changes are too numerous and complex to be accomplished by separate amendments of the existing trust.” (2 Drafting Cal. Revokable Trusts, supra, § 20.10, pp. 691-692.) However, the treatise was careful to note this kind of provision would not serve to make one instrument. Rather the amendment and restatement superseded the original trust, but “it does not create a new trust but continues the trust that was established under the original trust document. As a result, there is no need to retitle trust property.” (Ibid.)
We found this treatise and others do not discuss the legal implication of reaffirmation and republication of a prior instrument. And the ordinary meaning of these terms does not help John’s argument. “Reaffirmation” simply means “[t]o affirm or assert” something again. (American Heritage Dict. (2nd college ed. 1982) p. 1030.) “Republication” is defined as “[t]o publish again” or “revive[.]” (Id. at p. 1050.) Neither definition is remotely close to the meaning suggested by John, i.e., incorporation. “Incorporation” ordinarily means “[t]o unite with or blend indistinguishably into something already in existence.” (Id. at p. 652.) There is no authority to support the argument publication or affirmation of one document necessarily serves to “blend” it together with another instrument.
We also reject John’s alternative argument that section 21350, subdivision (a), is inapt because subdivision (c), makes clear it only applies prospectively to instruments executed after January 1, 2001. (Hermanson v. Hermanson (2003)
108 Cal.App.4th 441, 445-446 [regarding prospective application].) Subdivision (c), provides, “Subdivision (a) does not apply to a codicil or amendment to an instrument that was executed on or after January 1, 2001, unless the codicil or amendment adds a no contest clause or amends a no contest clause contained in an instrument executed before January 1, 2001.” (§ 21305, subd. (c).) John argues the trust was executed in 1999, and if we hold the express reaffirmation did not have the effect of adding the no contest clause to the terms of the amendment, then subdivision (c), precludes application of subdivision (a). He fails to appreciate the reaffirmation and republication would only have the effect of redating the trust. Lottie republished the trust to the year 2005, and as described in Estate of Rossi, “[s]ubdivision (c) merely clarifies that a testator . . . with a post-2001 will or trust that already contains a no contest clause that meets subdivision (a)’s specificity requirements need not repeat the no contest clause in a codicil or amendment in order to have the no contest clause apply to the will or trust.” (Estate of Rossi, supra, 138 Cal.App.4th at p. 1338.) Here, as in Estate of Rossi, the republished trust’s no contest clause did not meet the specificity requirements and, therefore, Bert can contest the validity of the amendment under subdivision (a)(3); the amendment is an instrument other than the instrument containing the no contest clause.
Finally, we address John’s argument Estate of Rossi is distinguishable and its analysis should not apply because the (1) trust amendment in Estate of Rossi did not contain express reaffirmation and republication provisions, and (2) Lottie’s original trust, unlike the trust in Estate of Rossi, was executed before 2001, and therefore, before the effective date of section 21305, subdivision (a). John states these are “pivotal and determinative differences,” but fails to offer any supporting explanation or legal analysis. In any event, we find both contentions lack merit. First, applying the analysis of Estate of Rossi it would not have mattered if the trust amendment had reaffirmed or republished the trust. This language serves, at most, to redate the original trust provisions. The trust and amendment were separate instruments pursuant to section 45 for purposes of section 21305 analysis. Second, the date of Lottie’s original trust is not a pivotal fact in this case because it is undisputed she republished it in 2005, bringing it within the reach of section 21305.
V
Disposition
The order is reversed and remanded. Appellant, Bert Shook, shall recover his costs on appeal.
WE CONCUR: MOORE, J., ARONSON, J.