Estate of Holmes, B212305 (Cal. App. 9/3/2009)
| Decision Date | 03 September 2009 |
| Docket Number | B212305 |
| Parties | Estate of VIVIAN A. HOLMES, Deceased. BRENDA MOON, Petitioner and Appellant, v. REGINALD K. MOON, Objector and Respondent. |
| Court | California Court of Appeals Court of Appeals |
Appeal from an order of the Superior Court of Los Angeles County, Nos. BP092257 & BP095582, Aviva K. Bobb, Judge. Reversed.
Law Offices of Jack T. Humes and Jack T. Humes Jr.; and Law Offices of Lenelle C. Castille and Lenelle C. Castille for Petitioner and Appellant.
Law Offices of Randall & Associates and Betty G. Barrington for Objector and Respondent.
This is an appeal from an order denying a Probate Code1 section 17200 petition to determine among other things the validity of the Vivian A. Holmes Family Living Trust ("the trust") dated May 15, 1998. The trust was created by Vivian A. Holmes, who died on June 4, 2001. Mrs. Holmes also executed a last will and testament on May 15, 1998. Mrs. Holmes was the mother of three children-Brenda, Reginald and Rickie Moon.2 Rickie died after his mother but is survived by his wife, Jacqueline Castille Moon.
The trust and the will were prepared by a layperson, William Parish. Mr. Parish also purportedly amended the will at Mrs. Holmes's request. The amendment was made sometime after the original will was executed. Reginald unsuccessfully sought to have the will as amended probated in Estate of Holmes (Super. Ct. L.A., 2005, No. BP095582). Reginald's petition was denied pursuant to the parties' stipulation that the will was revoked.
In the current appeal, Brenda filed a petition to resolve a dispute about the identity of any intended beneficiary of trust assets. The dispute was the result of purported ambiguities in the language of Article XXIII of the trust. Relying on extrinsic evidence, the probate court denied Brenda's section 17200 petition, ruling that the trust assets belonged to Reginald. We conclude the order denying the section 17200 must be reversed because the trust, which did not name a beneficiary, failed as a matter of law.
The May 15, 1998 documents named Reginald as successor trustee and executor of the will. Brenda filed an amended section 17200 petition and trust contest on October 14, 2005. The trust does not specifically name a beneficiary in the event of Mrs. Holmes's death. Rather, Article XXIII of the trust identifies Mrs. Holmes's children as her survivors. In a separate part of the Article XXIII, the trust states, "All assets and property, Real or Personal not designated in this Living Trust of VIVIAN A. HOLMES created on 15 MAY 1998, shall be disbursed in equal shares to my beneficiaries or survivors." Brenda filed a petition to invalidate the trust because it failed to designate a beneficiary.
On November 30, 2005, Reginald filed a petition to administer and probate the will. The will was admitted to probate on April 26, 2006. Brenda filed a petition to revoke the probate on August 23, 2006. According to Mr. Parish, the purported amendment was made to page 25 of the will through word processing changes and then removal and reinsertion of the page into the will. However, Mrs. Holmes did not execute the amendments they nor were they witnessed by anyone. Trial was scheduled on the will and trust matters for September 24, 2007. The probate court denied Reginald's petition to probate the May 15, 1998 will on the ground the parties stipulated that decedent had revoked or altered the will.
At the trial, Mr. Parish testified that he has many professions and prepares a number of legal documents including testamentary instruments. Among his trades are notarization, preparation of living trusts, reverse mortgages, loan documents, bereavement counseling, co-pastor of a church and real estate broker. Mr. Parish prepared the trust and will dated May 15, 1998. At some point in time, he made changes to the will by a word processing program which he typed over the original document. His usual practice is to take out the particular page and then reinsert a new page after he has made word processing changes. In this case, he made changes to page 25 sometime around 2000. He would have then printed the new document and provided them to Mrs. Holmes. Mr. Parish does not remember having her initial or sign the will with the revisions. He does not have any documents or entries to indicate that modifications were made after May 15, 1998. There were no witnesses to the will amendments made in 2000.
Mr. Parish also prepared a trust deed dated July 13, 2000, for some property Mrs. Holmes owned placing the property into the trust. The parties referred to the property as the Dunsmuir property. Page 25 of the will dated May 15, 1998 refers to the Dunsmuir property. It provides:
Mr. Parish could not explain the terminology in the trust about survivors and undesignated real and personal property. According to Mr. Parish, he was using a software program designed by an attorney. He had no idea what was intended by the paragraph identifying the trustor's survivors. Mrs. Holmes just told him what she wanted to leave people and he typed it that way.
After several continuances, on March 27, 2008, Reginald's counsel, Gary A. Farwell, reminded the court that the parties had stipulated that probate of the will was revoked. Mr. Farwell indicated that Reginald had filed a petition concerning a lost will. Brenda's counsel, Lenelle Castille, argued that the parties had stipulated that the will and not the order directing probate of the will was revoked. The probate court then denied Reginald's petition concerning a lost will. The probate court also directed Reginald to pay Brenda attorney fees of $59,794.80 concerning the will contest. The probate court also suspended Reginald's powers as trustee and appointed Brenda as temporary trustee. Reginald was ordered to prepare an accounting.
Reginald believed he was the sole beneficiary based on page 25 of the will. Since his mother died, he had kept all the rents from the trust properties and had quitclaimed all the trust property to himself. Prior to Rickie's death, he and his wife Jacqueline lived at the Point View property rent free. They only paid the cable and telephone bills. Rickie was disabled and the mother had expressed in the trust that he was to have money for rent. Brenda and Mrs. Holmes had not spoken to each other for years. This was because their mother had to evict Brenda from the Fairfax property for nonpayment of rent.
At the trial, Jacqueline testified that before Rickie's death in December 2003, he asked Reginald for copies of the trust. Reginald refused to give any information and said he would get back to Rickie. Over the years, Rickie asked for the information about five times but it was to no avail. Brenda testified that she was not evicted from Fairfax. Brenda and Mrs. Holmes had some differences. At one point the differences were so intense, Mrs. Holmes pulled Brenda's hair. In response, Brenda grabbed Mrs. Holmes's hand. Brenda "moved on" after this altercation. However, Brenda saw Mrs. Holmes in 2000 at a family gathering.
The probate court denied the section 17200 petition. Citing Mr. Parish's testimony, the probate court concluded that Mrs. Holmes intended to make Reginald the sole beneficiary of her trust assets. The probate court reinstated Reginald as the trustee and ruled that no accounting was required. This timely appeal followed.
Brenda argues the probate court erred in concluding the trust was valid in that Reginald was the sole beneficiary of the trust assets. A valid trust is created when there is: a competent trustor; an intent to create a trust; trust property; a trust purpose; and a beneficiary. (§§15201-15203, 15205; Oldham v. California Capital (2003) 109 Cal.App.4th 421, 433 fn. 12; Keitel v. Heubel (2002) 103 Cal.App.4th 324, 337; Estate of Heggstad (1993) 16 Cal.App.4th 943, 947-948.) We review de novo the question of whether the trust is invalid because it does not conform to the statutory requirements. (Harustak v. Wilkins (2000) 84 Cal.App.4th 208, 212; see also Estate of Mowry (2003) 107 Cal.App.4th 338, 341; Jenkins v. County of Riverside (2006) 138 Cal.App.4th 593, 604.)
Section 15205, subdivision (a) provides that a trust is created only if there is a beneficiary. The beneficiary requirement may be satisfied by naming an individual or class of beneficiaries ascertainable with reasonable certainty or by sufficient description. Or a trust may be created by a grant of power to the trustee or other person to select a beneficiary. (§15205, subd. (b).) Here, the trust does not designate a beneficiary. And, no section 15205, subdivision (b) exception applies on the face of the trust document. The failure to designate a beneficiary renders the trust invalid as a matter of law. (Estate of Gaines (1940) 15 Cal.2d 255, 266; Estate of Ralston (1934) 1 Cal.2d 724, 726-727; Estate of Reed (1947) 82 Cal.App.2d 448, 449.) Because of the invalidity, the trust property passes under the laws of intestacy. (Estate of Ralston, supra, 1 Cal.2d at pp. 726-727;Wittfield v. Forster (1899) 124 Cal. 418, 421-422; Estate of De Moulin (1950) 101 Cal.App.2d 221, 224-225; Estate of Reed, supra, 82 Cal.App.2d at pp. 449-450; Estate of Maloney (1938) 27 Cal.App.2d 332, 333-334.)
Reginald nevertheless contends that extrinsic evidence must be used to establish Mrs. Holmes' intent that he receive all the trust assets. Reginald relies upon Mr. Parish's testimony. The paramount rule in construing a trust is to determine the trustor's intent...
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