Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, Marjorie Laird Carter, Judge. Affirmed in part and reversed in part, Super. Ct. No. A234413
Rutan & Tucker, Theodore I. Wallace, Jr., and Treg A. Julander for Defendant and Appellant.
Law Offices of John P. Deily, John P. Deily, Michele Carmeli and Cynthia V. Roehl for Plaintiff and Respondent.
OPINION
FYBEL, J.
INTRODUCTION
A beneficiary of a family trust instrument filed a safe harbor petition in the probate court. The petition sought a determination that the beneficiary would not violate the trust’s no contest clause if he filed a creditor’s claim against his deceased grandfather’s estate or filed a petition to direct the trustee to either pay him $1.9 million to acquire a residence, or to buy a residence for him. The beneficiary’s proposed actions were based on a purported oral agreement between the beneficiary and his now-deceased grandparents, relating to the beneficiary’s agreement to raise his niece, whom his grandparents had adopted. The probate court determined the proposed actions would not violate the no contest clause, and granted the beneficiary’s safe harbor petition.
To the extent the beneficiary seeks to file a creditor’s claim against the estate for expenses incurred on behalf of his niece before his grandfather’s death, the probate court correctly determined the claim would not violate the trust’s no contest clause. We therefore affirm that portion of the probate court’s order.
However, any creditor’s claim for $1.9 million or petition to direct the trustee to purchase a residence for the beneficiary would, if successful, thwart the trustors’ testamentary plan. These actions are therefore contests, and the probate court erred in determining they would not violate the no contest clause. Accordingly, we reverse that portion of the probate court’s order.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Robert P. Swift and Margaret E. Swift were the trustors of the Swift Family Trust. (Because all the parties in this case are family members and share the same last name, we will refer to the parties by their first names to avoid confusion. We intend no disrespect.) Robert and Margaret had two children – Richard S. Swift and Janice L. Swift. Richard had three children – Lawrence A. Swift, Sharon Swift, and Fredrick Swift. Sharon could not care for her daughter, Sierra, and, in October 1993, Robert and Margaret adopted Sierra, their great-granddaughter.
According to Lawrence’s proposed petition and creditor’s claim, some time in May 1995, Robert and Margaret asked their grandson Lawrence and his wife Caroline Swift to raise Sierra, Lawrence’s niece, if Robert and Margaret could no longer raise her. Lawrence claimed that, in exchange for his and Caroline’s agreement to do so, Robert and Margaret orally agreed to give Lawrence the family residence in Villa Park, or a substitute gift to purchase a reasonable residence, and to pay Sierra’s expenses through college.
The Swift Family Trust was fully restated on May 11, 1995. The restated trust includes the following language regarding the distribution of the trust assets after the death of the surviving trustor, with our emphasis added in italics: “The family residence, including all furniture and furnishings, which are in the Trust after the surviving spouse’s decease, shall be held in Trust for the benefit of Transferors’ great-granddaughter, whom Transferors have adopted, SIERRA Y. SWIFT, until she reaches age 20. The Trustee of this Trust shall be Transferors’ grandson, LAURANCE A. SWIFT and if he is unable to so serve, his wife, CAROLINE SWIFT, if they are still married or if she is widowed and has not remarried. If neither are available, then JANICE L. [Swift] BJORKLUND shall designate a successor Trustee. If JANICE is unavailable, the Transferors’ attorney shall so designate a successor Trustee. [¶] Transferors request that LAURANCE and his immediate family live in the family residence and care for SIERRA. If LAURANCE is unable to do so, then the home should be sold and, if so sold, the proceeds shall be held in Trust for SIERRA. If the home is still in the Trust when SIERRA goes away to college, the Trustee shall distribute the home to LAURANCE, if he so survives Transferors, otherwise to his Family Trust, if any, and if none, to his estate. If SIERRA does not leave home to attend college, Transferors request that LAURANCE allow SIERRA to remain residing in the home until she completes her education, so long as she is pursuing a reasonably full course of study and maintaining a reasonable grade point average. [¶] . . . [¶] If there is no family residence in the trust upon the decease of the surviving spouse, a substitute gift shall be held in trust for SIERRA, sufficient for the Trustee to provide a reasonable residence for SIERRA and LAURANCE and his immediate family. [¶] If SIERRA does not choose to go to college, then upon her reaching the age 20, the home or the remaining cash from its sale shall be distributed to LAURANCE as set forth above. This gift shall be free of estate taxes.”
No explanation is given in the record for the different spellings of Lawrence’s name in various trust documents. No party argues, however, that references to Laurance or Larry are not intended to refer to Lawrence.
Margaret died in August 1998. At that time, Margaret’s share of the trust assets was distributed to Trusts B and C, which became irrevocable. Robert’s share was distributed to Trust A, which remained revocable. After Margaret’s death, Robert amended Trust A on several occasions. Of significance here, Robert amended the trust on October 19, 1999, as follows: “There have been significant changes in the relevant circumstances of Trustors’ initial plan for LARRY to care for SIERRA in Trustors’ home. Trustor ROBERT and SIERRA agree that it would no longer be in SIERRA’s best interests for LARRY to care for SIERRA. In this anticipated event of someone else caring for SIERRA, the original purpose of providing a residence of LARRY while he cared for SIERRA no longer applies.” That trust amendment, as well as subsequent amendments, changed the terms of the trust regarding the distribution of the family residence, or the proceeds from the sale of that residence, after Robert’s death.
In 2000, Lawrence and Caroline began raising Sierra, because Robert was unable to continue caring for her. At that time, Robert, Lawrence, and Caroline signed a declaration of responsibility, in which Lawrence and Caroline assumed responsibility for all decisions relating to Sierra’s care. The declaration of responsibility did not mention any claimed verbal agreement regarding the transfer of the family residence and the payment of Sierra’s expenses through college. The family residence was sold in February 2003, and 50 percent of the proceeds from the sale was distributed to Trust A and 50 percent to Trust B.
Robert died in May 2005. Janice is now serving as the trustee of the Swift Family Trust. As of the date of the proceedings in the probate court, Sierra was 20 years old and attending college.
On October 28, 2005, Lawrence filed a safe harbor petition under Probate Code section 21320. Lawrence requested the probate court’s determination that several proposed actions would not violate the no contest clause in the Swift Family Trust. After the parties reached agreement on the applicability of the no contest clause as to some of the proposed actions, only two issues remained for resolution by the court: (1) whether a creditor’s claim against Robert’s estate would violate the no contest clause of Trust A; and (2) whether a petition for an order directing Janice as the trustee of Trust B of the Swift Family Trust to purchase a substitute residence for Lawrence would violate the no contest clause of Trust B. Following a hearing, the probate court determined neither of these proposed actions would violate the no contest clause.
The Swift Family Trust, as restated in 1995, includes the following no contest clause: “Except as otherwise provided in this instrument, the Transferors have intentionally and with full knowledge omitted to provide for their heirs or relatives. [¶] If any beneficiary under this trust, or legal heir of a Transferor or any person claiming under any of them singly or in conjunction with any other person or persons, contests in any court the validity of this trust or of a deceased Transferor’s last Will or seeks 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 seeks otherwise to void, nullify, or set aside this trust or any of its provisions, or conspires with or voluntarily assists anyone attempting to do any of these things then that person’s right to take any interest given to him or her by this trust shall be determined as it would have been determined if the person had predeceased the execution of this declaration of trust without surviving spouse or descendants.” The first amendment to the trust and the sixth amendment to the trust contain virtually identical language. The amendments changed references from “Transferors” to “Trustor” and changed plural references to singular ones.
Lawrence’s counsel submitted a proposed order. Janice then filed written objections, in which she argued for the first time that Lawrence’s proposed creditor’s claim would violate the no contest clause of Robert’s will. On July 19, 2006, the probate court signed the order prepared by Lawrence’s counsel. Janice timely appealed.
DISCUSSION
I.
STANDARD OF REVIEW
We review de novo the probate court’s determination that the proposed actions would not violate the no contest clause in the trust. (Estate of Davies (2005) 127 Cal.App.4th 1164, 1173.)
II.
NO CONTEST CLAUSES GENERALLY
“No contest clauses are valid in California and are favored by the public policies of discouraging litigation and giving effect to the purposes expressed by the testator. [Citations.] Because a no contest clause results in a forfeiture, however, a court is required to strictly construe it and may not extend it beyond what was plainly the testator’s intent. [Citations.]” (Burch v. George (1994) 7 Cal.4th 246, 254.)
The no contest clause in the trust is the same type of clause that has been held to be broadly worded. (See Hearst v. Ganzi (2006) 145 Cal.App.4th 1195, 1202; Nairne v. Jessop-Humblet (2002) 101 Cal.App.4th 1124, 1131; Estate of Pittman (1998) 63 Cal.App.4th 290, 298.)
III.
PROBATE CODE SECTION 21305 DOES NOT APPLY TO LAWRENCE’S PROPOSED PETITION OR CREDITOR’S CLAIM.
Probate Code section 21305 generally exempts a creditor’s claim from the reach of no contest clauses: “(a) For instruments executed on or after January 1, 2001, the following actions do not constitute a contest unless expressly identified in the no contest clause as a violation of the clause: [¶] (1) The filing of a creditor’s claim or prosecution of an action based upon it. [¶] . . . [¶] (c) 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.” The parties do not dispute that section 21305, subdivision (a) applies to the no contest clause in the Swift Family Trust (and indeed both parties discuss and analyze the section fully and treat it as if there is no question it applies); if section 21305, subdivision (a) does not apply, Lawrence’s statutory creditor’s claim exemption argument disappears.
The only changes to the no contest clause between the 1995 restated trust document and the sixth amendment (dated July 2, 2003) are stylistic – changing “Transferors” to “Trustor” and making necessary grammatical changes from the plural to the singular. For purposes of this opinion, we need not decide whether such minor grammatical changes constitute an amendment to a no contest clause, as envisioned by Probate Code section 21305, subdivision (c).
Merely labeling a claim as a creditor’s claim, however, does not immunize it. In Zwirn v. Schweizer (2005) 134 Cal.App.4th 1153, 1154-1155, the appellant claimed Sam and Freida Cwiren had verbally promised that after they both died, the appellant would receive one-half of their assets, with the other half going to Freida’s blood relatives. After Sam’s death, Freida changed her estate plan to leave the majority of the assets to one of her blood relatives, with the appellant receiving only income from a 25 percent share. (Id. at p. 1155.) The appellant claimed he was an intended beneficiary of a contract between Sam and Freida, and therefore filed a petition under Probate Code section 21320 asking the court to determine whether a creditor’s claim would violate the no contest clauses in Freida’s will and trust. (Zwirn v. Schweizer, supra, 134 Cal.App.4th at p. 1155.)
The Second District Court of Appeal, Division Eight, affirmed the trial court’s order, finding that the appellant’s proposed creditor’s claim would violate the no contest clauses. “It seems clear to us that if the beneficiary had a contractual claim that did not involve a result which, if successful, would alter the intent of the testator regarding the general disposition plan of the trust or will estate containing the no contest provisions, that claim would be a ‘creditor’s claim’ pursuant to [Probate Code] section 21305. For example, if Sam and Frieda had contracted with appellant to fix their roof or buy them clothes, a claim for the money owing would probably be appropriate as a ‘creditor’s claim’ and not in contravention of the no contest clauses. [¶] The issue in the case at bench is more complex, involving a claim that goes directly to the testator’s plan of distribution, not merely the amount of money given to a creditor or the reduced amount given to other beneficiaries because of the creditor’s claim. . . . [¶] The trial court concluded that appellant’s proposed action fell outside the statute and would constitute a contest. No specific grounds were given. The primary rationale for such a conclusion is that to decide otherwise would allow those challenging the dispositions set forth in wills and trusts merely to characterize their challenge as a ‘creditor’s claim’ and in effect make meaningless no contest clauses, at least those that do not contain an express identification of the filing of a creditor’s claim as a violation of the clause. We agree.” (Zwirn v. Schweizer, supra, 134 Cal.App.4th at pp. 1158-1159.)
Lawrence attempts to distinguish Zwirn v. Schweizer on the ground that it stands for the limited proposition that “a creditor’s claim lacking consideration is not an enforceable contract, and any challenge to the instrument based on the ineffectual contract is a contest to the instrument.” (Original italics.) We cannot agree with Lawrence’s characterization of the case. Indeed, the word “consideration” does not even appear in the opinion. Zwirn v. Schweizer does not turn on whether consideration is lacking, but whether the claim “goes directly to the testator’s plan of distribution.” (Zwirn v. Schweizer, supra, 134 Cal.App.4th at p. 1158.) We conclude that Zwirn v. Schweizer is directly on point and agree with its reasoning.
The present case is distinguishable from Estate of Watson (1986) 177 Cal.App.3d 569, 571, on which Lawrence relies, in which two daughters filed a creditors’ claim against their stepmother’s estate. The daughters claimed that their father (Arthur) and stepmother had an oral agreement, by which the father (who predeceased the stepmother) would leave all his property (except two $50,000 bequests to the daughters) to the stepmother, in exchange for the stepmother’s promise that she would transfer the father’s property to the daughters upon her death. (Ibid.) Instead, the stepmother had distributed her estate to four other people. (Ibid.)
The appellate court in Estate of Watson, supra, 177 Cal.App.3d at pages 574-575,concluded the creditors’ claim and a subsequent lawsuit by the daughters against the stepmother’s estate did not violate the no contest clause in the father’s will: “The [stepmother’s] heirs admit the claims made by the daughters do not affect the property to be included in Arthur’s estate subject to disposition by his will but assert ‘rights to property already distributed to another beneficiary by the terms of [Arthur’s] will.’ Thus it is a ‘post-disposition’ claim. Moreover, the daughters’ claims do not affect the amount of property in the estate subject to disposition by the will to any beneficiary and certainly not to [the stepmother]. The [stepmother’s] heirs cite no authority which holds that an in terrorem clause has been violated under these particular circumstances. [¶] Thus Arthur’s daughters have made no challenge to any of the provisions of their father’s will. On the contrary, they have repeatedly affirmed the provisions of the will. They made no objection to probate of their father’s will according to its terms. In sum, [the stepmother’s] heirs concede there has been ‘no clear and unequivocal’ attack on Arthur’s will. Nonetheless, they would ask this court to find that Arthur’s intention was to preclude his daughters’ present claim, even though no such intention is expressed; moreover no facts indicate such an intention may be implied. The case law does not provide any authority for such a finding. The daughters’ creditors’ claim against [the stepmother]’s estate is based on third-party beneficiary contract rights. It is analytically no different from any other creditors’ claim against her estate. Under no theory does it raise any questions concerning the validity of Arthur’s will or contest his will.” (Second brackets in original.) Thus, in Estate of Watson, the claims did not alter the testator’s intent regarding the disposition plan of the father’s estate.
IV.
WOULD LAWRENCE’S PROPOSED CREDITOR’S CLAIM AND PROPOSED PETITION CONSTITUTE A CONTEST?
Lawrence’s proposed creditor’s claim and proposed petition do not fall within the automatic exception of Probate Code section 21305, subdivision (a), and therefore must be analyzed like any other claim to determine whether it would constitute a contest under the trust’s no contest clause. “Factors relevant to determining whether a claim involving the characterization, inclusion or distribution of a certain item of property in a testamentary instrument is a contest include the particular language of the no contest clause; whether the testamentary instrument specifically enumerates the property and its distribution; whether the testamentary instrument specifically characterizes the property (e.g., as separate versus community property); and whether the challenge, if successful, would result in thwarting the testator’s intent. [Citation.]” (Nairne v. Jessop-Humblet, supra, 101 Cal.App.4th at p. 1128.) “The fact a legal proceeding results in changing the distribution under a will is not in itself determinative of whether a prohibited contest has occurred.” (Estate of Watson, supra, 177 Cal.App.3d at p. 572.)
A.
Lawrence’s proposed actions requiring the trustee to purchase a residence or make payment to Lawrence to acquire a residence would constitute a contest.
Lawrence proposed to file a petition for an order directing the trustee to purchase a substitute residence for him, in order to enforce Robert and Margaret’s alleged oral agreement with him. Lawrence also proposed to submit a creditor’s claim in the amount of $1.9 million so he can acquire a substitute residence to enforce that same alleged oral agreement. (Lawrence’s proposed creditor’s claim has a second part, regarding the payment of expenses on behalf of Sierra, which will be addressed separately, post.) The first part of Lawrence’s proposed creditor’s claim and his proposed petition to direct the trustee to purchase a substitute residence for him would alter Robert and Margaret’s estate distribution plan, and therefore would be a contest.
1.
Lawrence’s proposed actions would thwart the testators’ intent.
The restated Swift Family Trust and its amendments contain specific provisions for the distribution of the trust’s assets, including the family residence and/or the proceeds from the sale of that residence. The restated Swift Family Trust specifically provided for the possibility (that actually occurred here) there would be no family residence in the trust when both Margaret and Robert died: “If there is no family residence in the trust upon the decease of the surviving spouse, a substitute gift shall be held in trust for SIERRA, sufficient for the Trustee to provide a reasonable residence for SIERRA and LAURANCE and his immediate family.” Although Lawrence argues his proposed petition to order the trustee to provide him with a substitute residence would not violate the no contest clause of Trust B (sometimes referred to by the parties as Margaret’s trust, because this subtrust became irrevocable upon Margaret’s death), the trust’s language belies his argument.
In McKenzie v. Vanderpoel (June 13, 2007, B186768) __ Cal.App.4th __, __ [2007 Cal.App. Lexis 972, *7], a beneficiary filed a safe harbor petition, asking the probate court to determine that a proposed petition for an order directing the trustee to adjust the beneficiaries’ principal and income shares would not violate the trust’s no contest clause. The appellate court concluded the availability of a statute permitting a trustee to adjust principal and income distributions did not insulate the beneficiary’s proposed petition from the trust’s no contest clause (id. at p. __ [2007 Cal.App. Lexis 972 at pp. *17-18]), and because the petition would “significantly alter” the terms of the trust, it would violate the no contest clause (id. at p. __ [2007 Cal.App. Lexis 972 at pp. *20-21]). The McKenzie opinion is consistent with Nairne v. Jessop-Humblet, supra, 101 Cal.App.4th 1124.
At oral argument, we offered Lawrence the opportunity to submit a letter brief addressing McKenzie v. Vanderpoel, supra, __ Cal.App.4th __ [2007 Cal.App. Lexis 972], which had been decided less than a week earlier. Lawrence’s counsel misinterpreted our offer, and submitted a 21-page, single-spaced letter brief, essentially repeating Lawrence’s arguments regarding his entire case. Nothing in Lawrence’s letter brief challenges the reasoning or analysis of McKenzie v. Vanderpoel.
Lawrence’s proposed creditor’s claim and proposed petition would, if successful, thwart Robert’s intent to control the distribution of the family residence and other assets, and particularly would thwart Margaret and Robert’s intent to hold the family residence or the value of such a residence in trust for Sierra. (Nairne v. Jessop-Humblet, supra, 101 Cal.App.4th at p. 1128.) To hold to the contrary would violate the California Supreme Court’s clear holding: “[E]ven though a no contest clause is strictly construed to avoid forfeiture, it is the testator’s intentions that control, and a court ‘must not rewrite the [testator’s] will in such a way as to immunize legal proceedings plainly intended to frustrate [the testator’s] unequivocally expressed intent from the reach of the no-contest clause.’ [Citation.]” (Burch v. George, supra, 7 Cal.4th at p. 255.) The probate court erred in determining Lawrence’s proposed actions would not constitute a contest.
2.
Lawrence is not merely seeking an interpretation of the trust language.
Lawrence contends that he is only requesting an interpretation of the trust language, which is not a contest, citing Estate of Kruse (1970) 7 Cal.App.3d 471 and Estate of Miller (1964) 230 Cal.App.2d 888. Those cases are inapplicable here. In Estate of Kruse, supra, 7 Cal.App.3d at page 474, the deceased created a testamentary trust which would pay the income to his wife during her lifetime, with the residue being distributed to the Shriners’ Hospital for Crippled Children (the hospital) on the wife’s death. The wife was also named as executrix of the estate. (Ibid.) In addition to receiving income from the testamentary trust throughout the probate period, the wife also took a $750 per month family allowance from the trust’s corpus. (Ibid.) The hospital sought an order from the probate court surcharging the wife for the amount of the family allowance, claiming the wife had improperly depleted the trust corpus; the probate court rejected the hospital’s request, and the appellate court affirmed. (Id. at pp. 474-475.) The wife then claimed the hospital had violated the no contest clause. (Id. at pp. 475-476.) The appellate court rejected that claim, concluding the hospital did not violate the will’s no contest clause by demanding an accounting or objecting to what it perceived to be an incorrect accounting. (Id. at p. 476.)
In Estate of Miller, supra, 230 Cal.App.2d at page 893, the decedent intended to leave her estate in equal shares to her three daughters. Because one daughter was an alcoholic, the decedent placed her one-third share in trust. (Id. at pp. 893-894.) After the decedent’s death, the daughter regained her sobriety, and requested that her share be given to her outright, rather than remain in trust. (Id. at pp. 896-897, 899.) The appellate court concluded the daughter’s complaint would not, if successful, result in setting aside the will, but rather would ascertain and enforce the decedent’s true intent. (Id. at p. 903.)
The language of Lawrence’s proposed petition and the first part of Lawrence’s proposed creditor’s claim prevent us from accepting Lawrence’s argument that he is merely seeking an interpretation of the trust language. The proposed petition requests an order directing Janice, as trustee, “to purchase a substitute residence for the benefit of SIERRA YVONNE SWIFT, LAWRENCE A. SWIFT and his family, which is substantially similar to the family residence owned by the Trustors at the time the Second Restated Swift Family Trust was signed,” and to do so before making any other trust distributions. Lawrence does not request an interpretation of the trust or any of its terms and provisions, and does not assert that the language of the trust is ambiguous or requires interpretation. The gist of the proposed petition is that Robert and Margaret made an oral agreement to provide the family residence to Lawrence in exchange for his and Caroline’s caring for Sierra, which agreement Robert and Margaret breached by distributing the residence or the proceeds from its sale under the terms of the trust. Similarly, Lawrence’s proposed creditor’s claim asserts that the terms of the alleged oral agreement between Lawrence and his grandparents trump the language of the trust and its amendments, either because of the terms of the oral agreement or under equitable estoppel principles.
3.
Lawrence does not have a claim based on a right to property independent of the trust.
Lawrence contends there is “a long line of opinions holding that when a claim to property is based on a source of right independent of the will, the claim is not a ‘contest.’” The cases upon which he relies, for the most part, predate the California Supreme Court’s opinion in Burch v. George, supra, 7 Cal.4th at page 261, in which the court refused to conclude there is any “categorical proposition that any proceeding based upon a claim of right independent of a will or trust instrument is never a contest for purposes of the no contest law.” More importantly, in each of the cases cited by Lawrence on this point, the courts determined that the assertion of a property claim independent of a testamentary instrument was not a contest because the claimant was seeking a judicial determination that the property was, as a matter of law, the claimant’s own property, and thus was not subject to distribution through the testamentary instrument. (See Jacobs-Zorne v. Superior Court (1996) 46 Cal.App.4th 1064, 1080 [surviving spouse claimed bank accounts were joint tenancy property, and thus not within the deceased spouse’s estate]; Estate of Black (1984) 160 Cal.App.3d 582, 590-591 [where will expressed intent to dispose of “‘all of my property . . . which I have the right to dispose of by will,’” cohabitant’s claim that property was hers was not a contest].)
Lawrence does not contend he has a joint tenancy right or otherwise holds title to the family residence or any bank account containing the trust’s assets. Instead, his claim is that his grandparents orally promised to make a particular distribution of that property, but actually made a different distribution. Lawrence’s claim is not one based on a right to property independent of the trust.
Lawrence argues he altered his position based on the alleged oral agreement to provide the family residence, or a reasonable substitute, to him in exchange for caring for Sierra, thus estopping the trust or its trustee from rejecting his claims. However, his alleged change of position does not alter the fact his claim to enforce the alleged oral agreement constituted a contest. In Nairne v. Jessop-Humblet, supra, 101 Cal.App.4th at page 1127, the plaintiff, Kenton Nairne, claimed Michael Humblet and Marilyn Jessop-Humblet had orally promised the plaintiff that if he moved into one of their properties, helped them in their business of raising emus, and remained on the property, they would deed the property to him after Michael’s death, and he would be entitled to receive all the property, income and earnings from the property. That property, however, was an asset of a trust created by Michael and Marilyn, which was to be held in trust, and eventually sold, with the proceeds passing to Marilyn’s children. (Id. at pp. 1126-1127.) The trust provided that after Marilyn’s death, the plaintiff would receive one-half of a separate piece of real property. (Id. at p. 1127.) The plaintiff sought a determination that his claim for breach of an oral contract and quantum meruit would not violate the trust’s no contest clause. (Ibid.)
The appellate court initially rejected the plaintiff’s contention that a claim based on an independent property right can never be a contest. “Nairne contends that his complaint seeks to establish and enforce an oral contract that was based on a right independent of the trust, therefore his complaint would not constitute a contest within the meaning of the trust provision. He relies principally on two cases: Estate of Watson (1986) 177 Cal.App.3d 569 . . . and Estate of Black, supra, 160 Cal.App.3d 582. Both cases contain some broad language suggesting that actions seeking to enforce an oral contract independent of a will do not constitute ‘contests,’ but the Supreme Court has made clear that there is no ‘categorical proposition that any proceeding based upon a claim of right independent of a will or trust instrument is never a contest for purposes of the no contest law.’ [Citation.]” (Nairne v. Jessop-Humblet, supra, 101 Cal.App.4th at pp. 1129-1130.) “Nairne’s complaint directly attacks a provision of the trust, i.e., the inclusion and disposition of the 502 property. His complaint, if successful, would frustrate Marilyn's and Humblet’s intent that the 502 property be included in the trust, that the surviving spouse have the benefit of all the trustors’ community property, and that, upon the death of the surviving spouse, the proceeds from the sale of the trust property (with the exception of the Emu Ranch property) would be equally divided among Marilyn’s children.” (Id. at p. 1130.) The appellate court therefore concluded the plaintiff’s proposed complaint would violate the trust’s no contest clause. (Id. at p. 1131.)
We emphasize that we are not determining the merits of Lawrence’s proposed actions. (Hearst v. Ganzi, supra, 145 Cal.App.4th at pp. 1207-1208.) Nor are we barring Lawrence from pursuing those actions. We conclude only that any such actions would trigger the no contest clause in the trust. Lawrence may now make an informed decision as to whether to pursue his claim for $1.9 million based on his alleged oral agreement with his grandparents and forfeit his rights under the terms of the trust, or forego his claim and take whatever share to which he may be entitled under the trust. (Genger v. Delsol (1997) 56 Cal.App.4th 1410, 1429.)
B.
Lawrence’s proposed creditor’s claim for reimbursement of Sierra’s expenses would not violate the no contest clause.
The second part of Lawrence’s proposed creditor’s claim would request reimbursement for expenses related to Sierra, which were incurred by Lawrence before Robert’s death, and which total $9,237.05. This part of the creditor’s claim would not alter Robert and Margaret’s overall plan of asset disposition, and therefore would not violate the no contest clause. (Zwirn v. Schweizer, supra, 134 Cal.App.4th at p. 1158.)
Lawrence’s claim for $1.9 million is treated differently from the claim for expenses incurred on behalf of Sierra for purposes of application of the no contest clause, not because of the size of the claim. Rather, we treat these two claims differently because the $1.9 million claim “goes directly to the testator’s plan of distribution, not merely the amount of money given to a creditor or the reduced amount given to other beneficiaries because of the creditor’s claim.” (Zwirn v. Schweizer, supra, 134 Cal.App.4th at p. 1158; see Jacobs-Zorne v. Superior Court, supra, 46 Cal.App.4th at p. 1077 [a contest is not simply “any legal proceeding which could have the net effect of disturbing the distribution under the will” or trust].)
V.
THE NO CONTEST CLAUSE IN ROBERT’S WILL IS NOT BEFORE US ON APPEAL.
The parties also argue on appeal the applicability of a no contest clause in Robert’s will and a codicil to that will. The applicability of the will’s no contest clause was not argued to the probate court, and indeed the will itself was not even before the probate court until after the hearing on Lawrence’s Probate Code section 21320 application. We need not address this issue for the first time on appeal because (1) our determination that the proposed petition and the portion of the creditor’s claim seeking $1.9 million would violate the trust’s no contest clause moots any determination of the effect of the will’s no contest clause, especially since the will is a pour-over will which transfers all but Robert’s interest in his vehicles, jewelry, and contents of his home to the trust, and (2) the trustee has conceded that the creditor’s claim for expenses related to Sierra would not violate the will’s no contest clause in any event.
DISPOSITION
The order is affirmed in part and reversed in part. We direct the trial court to enter an order determining that (1) Lawrence will not violate the no contest clause of Trust A or Trust B of the Swift Family Trust by filing a creditor’s claim against the estate of Robert Swift, filing a lawsuit if the creditor’s claim is rejected, conducting discovery, and proceeding to trial, if the creditor’s claim and any later petition or complaint are limited to a claim for expenses related to Sierra which were incurred before Robert Swift’s date of death; and (2) Lawrence will violate the no contest clause of said trust by a creditor’s claim for $1.9 million or a proposed petition to direct the trustee to purchase a substitute residence for him. In the interests of justice, because both parties prevailed in part on their claims, neither party shall recover costs on appeal.
WE CONCUR:
BEDSWORTH, ACTING P. J., ARONSON, J.
Section 21305 would not apply to any analysis of the no contest clause in Robert’s will, since the will and its codicil were both executed before January 1, 2001.