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Cory v. Toscano

June 8, 2009

ELAINE CORY, PLAINTIFF AND RESPONDENT.
v.
COLLEEN M. TOSCANO, DEFENDANT AND APPELLANT,



APPEAL from a judgment of the Fresno County Superior Court. Robert H. Oliver, Judge. (Super. Ct. No. 07CEPR00246).

The opinion of the court was delivered by: Levy, J.

CERTIFIED FOR PUBLICATION

OPINION

Appellant, Colleen M. Toscano, and respondent, Elaine Cory, are beneficiaries of the Louie Friguglietti Trust (Trust). Cory applied to the trial court for an advance ruling under Probate Code*fn1 section 21320 on whether a proposed petition would be a contest of the Trust. This petition seeks a determination that handwritten notations on the trust document that reduce Cory's share of a trust asset are not part of the terms of the Trust. The trial court ruled that the proposed petition did not violate the Trust's no contest clause on the ground that a challenge to an instrument other than the instrument containing the no contest clause is not a contest under section 21305, subdivision (a)(3).

Toscano argues Cory's proposed challenge is not protected under section 21305, subdivision (a)(3), because the handwriting is not a separate instrument or document. Toscano further contends that, contrary to Cory's position, the proposed petition is not protected as a pleading seeking an interpretation of the Trust under section 21305, subdivision (b)(9). Rather, the petition seeks to void, nullify or set aside a trust provision.

As discussed below, Cory's proposed challenge is not protected as seeking an interpretation of the Trust. The handwritten notations on the trust instrument were an attempt to amend the Trust and the petition alleges that this "amendment" is invalid. Nevertheless, this "amendment" is not part of the original trust agreement and thus a challenge to its validity is not a contest under section 21305, subdivision (a)(3). Accordingly, the order will be affirmed.

BACKGROUND

Louie Friguglietti (Trustor) established the Trust on September 30, 2005, as a revocable living trust.

Article II of the Trust provides for the Trust's distribution on the Trustor's death. With respect to Cory, the printed Trust provides:

"(a) To ELAINE CORY, the balance remaining from the sale of my real property in Los Banos, APN 081-110-007, consisting of approximately 28.5 acres on Overland Road, after payment of my debts and her share of expenses attributable to the trust administration and any federal and state death taxes attributable to ELAINE CORY's share."

The Trust contains a no contest clause that disinherits any beneficiary who "contests in any court the validity of this trust . or seeks to obtain an adjudication in any proceeding in any court that this trust or any of its provisions . is void, or seeks otherwise to void, nullify, or set aside this trust or any of its provisions .."

The Trustor executed two separate amendments to the Trust.*fn2 The first, a handwritten document entitled "First Amendment to The Louie Friguglietti Trust dated Sept. 30 2005," was signed on October 7, 2005. On October 11, 2005, the Trustor executed the "SECOND AMENDMENT TO THE LOUIE FRIGUGLIETTI TRUST DATED: September 30, 2005." This second amendment revoked the first amendment and replaced article II, paragraph (b). Neither amendment concerns the distribution to Cory.

The Trustor died on May 11, 2006.

The trustee provided Cory with a copy of the Trust that includes handwritten interlineations on article II, paragraph (a). There is a caret between "To ELAINE CORY" and "the balance remaining from the sale .." Above the caret is "25% of" and "10.11.05." ...


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