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Christopher Gene Fazzi v. Norma Jean Klein

December 14, 2010

CHRISTOPHER GENE FAZZI, PLAINTIFF AND RESPONDENT,
v.
NORMA JEAN KLEIN, DEFENDANT AND APPELLANT.



Appeal from an order of the Superior Court of Orange County, Mary Fingal Schulte, Judge. Reversed with directions.(Super. Ct. No. A245535)

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

CERTIFIED FOR PUBLICATION

OPINION

Norma Jean Klein appeals from an order granting "safe harbor" to her son, Christopher Gene Fazzi, to file a proposed petition in probate court challenging Norma's status and actions as trustee of two trusts in which Christopher is a beneficiary.*fn1 The proposed petition also challenges a trust provision directing that Christopher's brother, Michael, serve as the successor trustee to Norma.

In granting Christopher's safe harbor application, the trial court found neither of the two trusts contains a "no contest" clause and, moreover, even if the clause did apply, the proposed petition does not constitute a "contest" as defined in the Probate Code. Because the trial court erred in granting the application for safe harbor, we reverse.

I BACKGROUND FACTS AND PROCEDURE

On January 29, 1987, Norma and her husband, Lloyd Klein, created a revocable trust entitled the Klein Family Trust (the Trust or the original trust) and concurrently executed "pour-over" wills. The Trust designated the two spouses as co-trustees of the Trust during their joint lifetimes.

According to the terms of the Trust, upon the death of either spouse, the survivor, as trustee, was to divide the trust assets into three new trusts: Trust A, Trust B, and Trust C. The Trust directed the trustee/surviving spouse to fund Trust A with his or her share of the community property and separate property, and this trust would remain revocable during that spouse's lifetime. The trustee was to place into Trusts B and C, according to a specified formula, the decedent spouse's separate property and share of community property. Christopher, his five siblings, and stepsiblings were to be the remainder beneficiaries of Trusts B and C, which would become irrevocable trusts when the first spouse died. The surviving spouse was to be the income beneficiary of all three trusts until his or her death.

The Trust contained a "no contest" clause which provided, essentially, that any person, heir, or beneficiary under the Trust who "contest[s] in any court any of the provisions of this instrument . . . shall not be entitled to any distributions . . . or any benefits under this trust instrument." (Trust, ¶ 6.05, italics added.)

Article 7 of the Trust specified the procedure for appointment of a successor trustee. Paragraph 7.01 provided that the trustee "may resign at any time upon giving written notice" to the beneficiaries and, upon receiving notice, the beneficiaries "shall designate a Successor Trustee, if one is not provided for hereinafter . . . ." Paragraph 7.02 provided: "In the event of the death, inability or unwillingness of LLOYD KLEIN and NORMA JEAN KLEIN, or the survivor, to act as Trustee, then MICHAEL GENE FAZZI shall be the Trustee." Michael is Christopher's brother.

Lloyd died on December 11, 1996, and Norma became the sole trustee. Nine months later, Norma executed an asset allocation agreement that distributed the Trust assets into the three subtrusts, A, B, and C.

On April 9, 2008, Christopher filed an application for a safe harbor determination under Probate Code section 21320*fn2 to determine whether his "proposed petition" constituted a "contest" under the "no contest" provision of the Trust (¶ 6.05). In November 2008, Christopher withdrew that initial safe harbor application and filed the safe harbor application at issue in this appeal.

In this safe harbor application, Christopher requested a determination that his proposed petition did not violate the "no contest" clause of the Trust. The proposed petition sought the following: (1) removal of Norma as trustee "for cause"*fn3 ; (2) a determination that paragraph 7.02 of the Trust, designating Michael as the successor trustee to Norma, applies only to the original trust and not to Trusts B and C, or if Michael is found to be the successor trustee to Trusts B and C, then a determination that Michael is "unfit" for that position and "disqualified" from serving; and (3) appointment of a professional fiduciary as successor trustee for Trusts B and C, with instructions to "investigate, account, and correct the actions" Norma took as trustee.

Christopher's application for a safe harbor determination advanced three contentions. First, Christopher argued the "no contest" clause in paragraph 6.05 applied only to the original trust and did not apply to Trusts B and C. Second, Christopher asserted that if the "no contest" clause did apply to Trusts B and C, the proposed petition did not violate that clause because it did not challenge the validity of the original trust, any of the subtrusts (A, B, or C), "or any provision thereof." Third, Christopher ...


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