Sachs v. Sachs

          Superior Court County of Santa Barbara No. 18PR00032, Colleen K. Sterne, Judge

          The Stone Law Group, Kenneth H. Stone and Scott G. Braden, for Defendant and Appellant.

          Reicker, Pfau, Pyle & McRoy, Alan A. Blakeboro, Diana Jessup Lee and Meghan K. Woodsome, for Plaintiff and Respondent.

          TANGEMAN, J.

         Probate Code^[1] section 21135 provides that transfers of property to a person during the transferor's lifetime will be treated as an at death transfer to the person under certain conditions. All of these conditions require a writing. Here we decide that the transferor's record of amounts he periodically distributed to his children is a writing that satisfies the requirements of section 21135.

         Avram M. Sachs appeals from the probate court's order granting a petition for instructions. (§ 17200.) The order allowed the trustee (his sister, Benita Sachs) to treat lifetime gifts to trust beneficiaries as advances on their inheritances. We affirm.

         FACTUAL AND PROCEDURAL HISTORY

         David L. Sachs had two children, Benita and Avram.^[2] David established a trust in 1980 when Benita was 20 years old and Avram was 12. The trust provided for small distributions to other beneficiaries, but most of the trust corpus would be distributed to Benita and Avram equally on David's death. David was the original trustee.

         In 1989 David began to keep track of money distributed to his children on papers he referred to as the “Permanent Record.” When a child asked for money, David would tell the child that the distribution would be reflected on the Permanent Record.

         In June 2013 David began to experience cognitive problems due to a stroke. He hired Ronda Landrum as his bookkeeper to help manage his finances. At David's instruction Landrum continued to make distributions to Avram and Benita. Landrum said David was adamant that she keep a record of the distributions. After a distribution was made David would often confirm that the distribution was on the list. Landrum kept a list for each child in the form of an electronic spreadsheet. David told Landrum on more than one occasion that keeping the list was important so that payments made to his children could be deducted from their respective inheritances.

         In October 2013 David resigned as trustee and Benita became the successor trustee. Following her appointment, she found the Permanent Record among her father's papers. The record consists of a separate file for each child. The entries were made entirely in David's handwriting. The papers list the dates and the amounts distributed beginning when each child attained age 30. The entries were not all made with the same pen, and the papers were of different types and ages.

         In September 2014 Landrum advised the children that expenditures for David's residential care and payments to the children were depleting the trust at a rapid rate. Avram continued to ask Benita for distributions from the trust. Benita's resistance caused friction between the siblings. In a series of e-mails Avram sought to assure Benita by repeatedly stating that the distributions would go on his record. One of the e-mails acknowledged that previous distributions made by David went on his record.

         In October 2015 Benita learned that Avram was contending the Permanent Record did not exist or that he was not bound by it. By then, David's mental condition had deteriorated to such an extent that he could not be asked about his intention in creating the Permanent Record.

         After David's death, Benita filed this petition for instructions to equalize the distribution of assets from the trust. She claimed that the disparity in lifetime distributions in favor of Avram should be deducted from Avram's distributive share of the trust. The trial court granted the ...