Estate of Mcshane v. Univ. of Wis. Sch. of Bus.
| Decision Date | 28 December 2015 |
| Docket Number | B261360 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Estate of MICHAEL K. MCSHANE, Deceased. GWENDOLYN WHITE-MCSHANE, Plaintiff and Appellant, v. UNIVERSITY OF WISCONSIN SCHOOL OF BUSINESS et al., Objectors and Respondents. |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BP125367)
APPEAL from an order of the Superior Court of Los Angeles County, David J. Cowan, Judge. Affirmed.
Law Office of Matthew C. Brown and Matthew C. Brown for Plaintiff and Appellant.
Salisian Lee, Richard H. Lee and Natalie Rastegari; Law Offices of Tara L. Cooper and Tara L. Cooper for Objectors and Respondents.
Plaintiff, Gwendolyn White-McShane, appeals from an order denying her Probate Code section 117001 petition for determination of entitlement to a proposed distribution of the estate of Michael McShane. Plaintiff was Mr. McShane's wife and is his estate's executor. The objectors are: the American Cancer Society; the Mental Illness Foundation; the University of Colorado School of Business; and the University of Wisconsin School of Business. The objectors filed a statement of interest in a portion of Mr. McShane's estate.
Mr. McShane bequeathed in his will, "I leave my mutual fund [sic], checking accounts, listed stocks, bonds, and cash . . . to [plaintiff]." Mr. McShane's will also bequeathed money to the objectors in the general form: "I leave up to [monetary amount] from the proceeds from my mutual funds, stocks, cash, and bonds to [the objectors]." Plaintiff argues that the language of the will was in conflict. Because of the "up to" modifier, plaintiff maintains the gifts to the objectors were not enforceable directions to her. The objectors assert the meaning of the will was clear that Mr. McShane intended a gift to them. Following a bench trial, the probate court: denied plaintiff's petition; sustained the objections; and ordered distribution of the amounts listed in the will to the objectors. We affirm the probate court order.
On March 28, 2010, Mr. McShane executed his will. He named plaintiff, his second wife, as executor. The will disposed of his property in pertinent part as follows: Ms. McShane was Mr. McShane's first wife. The Van de Castles2 were his cousins.
The executor's powers as described in the will were to: retain property without liability for loss or depreciation; dispose of property by sale and to receive and administer the proceeds as part of his estate; vote stock and exercise options and privileges to convert bonds, notes, stocks or other securities; lease any real property of the estate; litigate or settle claims regarding his estate; and continue in any business that is part of the estate. The will directed the executor to have the probate done as simply and free of judicial supervision as possible.
On October 15, 2010, Mr. McShane died. On November 1, 2010, plaintiff filed for probate of Mr. McShane's will and for letters testamentary. On January 10, 2011, the probate court appointed plaintiff as the executor of Mr. McShane's estate. On June 20, 2011, the final inventory and appraisal of Mr. McShane's estate was filed. On December 5, 2011, the inventory and appraisal was further corrected.
On November 9, 2011, plaintiff moved for a determination regarding Mr. McShane's estate distribution under section 11700. Plaintiff contended Mr. McShane's intentions in his will were uncertain because the bequests to the objectors contained the words "up to." Plaintiff asserted this bequest conflicted with the provision which left the mutual funds, checking accounts, stocks, bonds and cash to her. Plaintiff argued no other disposition in Mr. McShane's will contained the term "up to." Plaintiff contended the distributions of Mr. McShane's estate should be made as follows: mutual funds amounting to $800,000 to Ms. McShane; $25,000 from the mutual funds proceeds to Karen; $20,000 from the mutual funds proceeds to John Van; all the mutual funds, checking accounts, listed stocks, bonds and cash to petitioner after paying Ms. McShane $800,000 as described above; and nothing to the objectors. Plaintiff argued the bequests to objectors was precatory in nature; that is, a wish or advisory suggestion which does not have the force of a legally enforceable direction. Plaintiff asserted Mr. McShane's true intent was to only provide enforceable bequests which were not conditional or precatory to: her; Ms. McShane, and the Van de Castles. On December 20, 2011, plaintiff filed the first and final account and moved for final distribution in accordance with her section 11700 petition.
On February 29, 2012, the objectors filed a statement of interest and opposition to plaintiff's petition. The objectors asserted that the phrase "up to" was also used regarding the distribution of $800,000 to Ms. McShane. The objectors contended plaintiff, by refusing to pay them, was violating her duty of impartiality as the executor. The objectors asserted that if Mr. McShane wanted only plaintiff, Ms. McShane, and the Van de Castles to receive gifts, they would not have been named as well. The objectors argued plaintiff, as executor, did not have discretionary control over whether to distribute a bequest to them. On June 12, 2012, they also filed objections to plaintiff first and final account and final distribution.
Plaintiff responded that Ms. McShane's bequest was required by a marital settlement agreement. The marital settlement agreement had been entered into between Ms. McShane and Mr. McShane. Plaintiff asserted that the clear meaning of the words "up to" meant she as executor must determine the amount of the bequests to the objectors, if any. Plaintiff declared she and Mr. McShane had conversations regarding the charitable distributions. Plaintiff asserted that Mr. McShane wanted her to determine the amount which went to each charity. Plaintiff sought to amend her initial petition to distribute: $2,500 each to the Universities of Wisconsin and the Colorado Schools of Business; $1,250 to the American Cancer Society; and nothing to the Mental Illness Foundation. Plaintiff cited the amounts donated by Mr. McShane during his life to these charities as precedent for the amounts she chose. On January 14, 2013, the probate court ordered that the final distribution be distributed as requested by plaintiff with the exception of $1.5 million to be held in reserve.
On October 23, 2014, plaintiff and the objectors filed their trial briefs. Plaintiff asserted she had a discretionary special power of appointment regarding the bequests to the objectors. Plaintiff relied upon extrinsic evidence, namely the conversations she had with Mr. McShane during the drafting of his will. Plaintiff contended Mr. McShane's primary concern in making the will was to provide for her welfare.
The objectors argued plaintiff contradicted herself multiple times regarding interpretation of the will. The objectors cited her declaration that Mr. McShane wanted to provide modest gifts as bequests. But in her deposition, plaintiff testified it was her idea to leave money for charity. The objectors argued that plaintiff initially denied having any discretion to provide a gift of $800,000 to Ms. McShane. But when deposed, plaintiff claimed to have discretionary power over the distribution to Ms. McShane as well. The objectors contended the gifts to them were legitimate and reflected Mr. McShane's intent. The objectors cited Mr. McShane's attendance at and his regulardonations to both business schools. The objectors contended the gifts to the American Cancer Society and the Mental Illness Foundation were tied to key events in Mr. McShane's life. The objectors asserted Mr. McShane's mother's died from cancer. And Mr. McShane's father suffered from a mental illness.
Ms. McShane was married to Mr. McShane from 1988 until 2008. Ms. McShane described their divorce as amicable. Ms. McShane was aware that Mr. McShane's father had been taken away in a straitjacket. This occurred when Mr. McShane was in college. Ms. McShane had a close relationship Mr. McShane's mother. Ms. McShane was told by Mr. McShane that his mother had died from cancer. Mr. McShane was an only...
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