APPEALS from an order of the Superior Court of Los Angeles County. Mitchell L. Beckloff, Judge. Affirmed. (Los Angeles County Super. Ct. No. BP102068).
The opinion of the court was delivered by: Woods, Acting P. J.
CERTIFIED FOR PUBLICATION
This appeal involves a "safe harbor" determination by the probate court in accordance with section 21320 of the Probate Code.*fn1 The probate court*fn2 found that a son‟s proposed petition as successor trustee to marshal the assets in his deceased parent‟s Bypass and QTIP trusts would not constitute a contest of his father‟s Survivor‟s Trust and the no contest provision set forth therein. For the reasons hereafter stated, we affirm the judgment.
FACTUAL AND PROCEDURAL SYSNOPSIS
It appears to this court that no significant factual issues are in dispute. The issue is one of law only, i.e., do the safe harbor provisions set forth in section 21320 protect the son, for his proposed petitions, from the extensive no contest clause trust provisions executed by his father, James, prior to his demise. Because the issue is one of law, we review the trial court‟s ruling de novo. For the most part we adopt the factual presentation set forth in the brief of the son utilizing the well established principle that intendment on appeal is to uphold the ruling of a trial court unless clear error is demonstrated which results in a miscarriage of justice. In this instance we find none and affirm the order for the reasons hereafter set forth.
In 1992, after fifty years of marriage and raising a family together, James P. ("James") and Mildred A. ("Mildred") Bradley created a joint estate plan in favor of their two adult children, James Christopher Bradley ("Chris") and Cynthia Fritz ("Cindy"),*fn3 with whom they were very close. James and Mildred executed The Declaration of Trust of the Bradley Family Trust on September 19, 1992 (the "Trust"). The Trust provided that upon the death of the first spouse, the trust was to be divided into three subtrusts, namely, the Surviving Spouse‟s Trust, the Marital QTIP Trust, and the Family Bypass Trust. The surviving spouse‟s separate property and one-half of the couple‟s community property were to be allocated to the Survivor‟s Trust. After specific bequests to children and grandchildren, the deceased spouse‟s separate property and the other half of the community property were to be allocated to the QTIP Trust in an amount equal to the minimum amount needed to eliminate or reduce as far as possible federal estate taxes. The balance of the deceased spouse‟s property was to be allocated to the Bypass Trust.
Plaintiff and appellant, Chris, contends in his opening brief that virtually all his parents‟ property was composed of community property. Cindy does not contend otherwise.
The Trust provided that when the first spouse died, the QTIP and Bypass Trusts would become immediately irrevocable and non-amendable. But it granted the surviving spouse the power to revoke or amend the Survivor‟s Trust, subject to the requirement that "[a] community property transferred to the trust shall remain community property after its transfer." Thus, the surviving spouse was restricted from amending the Survivor‟s Trust in derogation of the spouses‟ community property interests. It also granted James, if he was the surviving spouse, a power of appointment over the assets in the QTIP Trust. The surviving spouse was to serve as sole trustee, and hence was responsible to properly divide the Trust into subtrusts, allocate assets among them and administer them according to the Trust terms. In this regard, the Trust authorized the trustee in his reasonable discretion to defer the division of the trust into subtrusts for up to six months, provided "all beneficiary rights in those trust assets shall accrue and vest as of the prescribed time," i.e., the deceased spouse‟s date of death. The Trust did not require a physical division of assets, but it did direct the trustee to keep a separate accounting for the subtrusts. And while it granted the trustee various powers in administering the subtrusts, it also provided: "Fiduciary Role: The Trustees shall exercise all of the powers in the trustees‟ fiduciary capacity and only in such capacity. Further, the trustees shall have no power to enlarge or shift any of the beneficial interests under any trust except as an incidental consequence of the trustees‟ fiduciary duties. . . ." Upon the death of the surviving spouse, the principal of both the Survivor‟s and QTIP Trusts were to roll over into the Bypass Trust, which then was to be distributed equally between Chris and Cindy. Chris was designated as successor trustee upon the surviving spouse‟s death.
Finally, the Trust contained a no contest clause worded as follows: "Non Contest-Contestant disinherited: If any beneficiary in any manner, directly or indirectly, contests or attacks this instrument or any of its provisions, any share or interest in the trust given to that contesting beneficiary under this instrument is revoked and shall be disposed of in the same manner provided herein as if that contesting beneficiary had predeceased the Settlor."
Amendments to Survivor's Trust and No Contest Clause
Mildred died on October 22, 1994, just over two years after executing the Trust with James. Within a few months of his wife‟s death, James, then in his 70s, allegedly became romantically involved with one Flora Ibarra, a married woman, who became his live-in companion and caregiver. Over the ensuing years, as James‟ health deteriorated drastically, Flora Ibarra purportedly insinuated herself into virtually every aspect of James‟ life, including the controlling of his medication, managing his assets and valuable commercial property and isolating him from his children who became increasingly alarmed.
During this same period, from 1995, when James‟ purported affair with Flora Ibarra began, to 2006 when James died, James allegedly amended his Survivor‟s Trust nine times. The series of amendments successively reduced the shares of Chris and Cindy, while providing ever larger gifts to Flora Ibarra and her extended family. One amendment eliminated Chris as successor trustee of the Survivor‟s Trust and nominated appellant Amelia Gilbert ("Gilbert"), James‟ office assistant, in his stead. Another made extensive revisions to the no contest clause as follows:
"a. If any beneficiary under this Declaration of Trust, or any legal heir of the surviving spouse or any person claiming under any of them directly or indirectly:
"(1) Contests any trust created hereunder, the Will of the surviving spouse or any other trust created by the surviving spouse or, in any manner, attacks or seeks to impair or invalidate any of their respective provisions;
"(2) Claims entitlement to any asset included in the probate estate of the surviving spouse or in any trust created hereunder or in any other trust created by the surviving spouse by way of any written or oral contract (whether or not such claim is successful);
"(3) Unsuccessfully challenges the appointment of any person named as Executor of the Will of the surviving spouse;
"(4) Unsuccessfully seeks the removal of any person acting as Executor of the Will of the surviving spouse;
"(5) Objects in any manner to any action taken or proposed to be taken in good faith by the Executor of the surviving spouse‟s Will or by the Trustee of any trust created by the surviving spouse (including, without limitation, the good faith exercise or non-exercise of any discretion granted to the surviving spouse‟s Executor or Trustee), whether said fiduciary is acting under court order, notice of proposed action or otherwise and whether or not such claim is successful;
"(6) Objects to any interpretation or construction of the Will of the surviving spouse or of any trust created by the surviving spouse that is adopted or proposed in good faith by the Executor of the surviving spouse‟s Will or the Trustee of such trust (whether or not such objection is successful);
"(7) Files any creditor‟s claim in the estate of the surviving spouse (without regard to its validity);
"(8) Claims an interest in any property alleged by the Executor of the Will of the surviving spouse to belong to the surviving spouse‟s estate or alleged by any Trustee of any trust created by the surviving spouse to belong to such trust (whether or not such claim is based on characterizing the surviving spouse‟s ...