Evangelho v. Presoto
| Decision Date | 29 October 1998 |
| Docket Number | A077532,Nos. A076882,s. A076882 |
| Citation | 79 Cal.Rptr.2d 146,67 Cal.App.4th 615 |
| Court | California Court of Appeals |
| Parties | , 98 Daily Journal D.A.R. 11,217 Richard F. EVANGELHO et al., Plaintiffs and Respondents, v. Darlene T. PRESOTO, Defendant and Appellant. |
Keith P. Bartel, Carr, McClellan, Ingersoll, Thompson & Horn, Burlingame, for Defendant and Appellant.
Michael Serratto, Burlingame, for Plaintiffs and Respondents.
Appellant Darlene T. Presoto (appellant) and respondents Richard F. Evangelho, John M. Evangelho, Daryl R. Evangelho, Frank J. Evangelho and Ernest Evangelho (respondents) are the children of decedent Joan D. Evangelho (decedent). The instant consolidated appeal arises from two orders which have the effect of requiring appellant to file a full accounting for a revocable living trust set up by decedent for the benefit of all her children; which includes an accounting for all multiple-party bank accounts in the name of appellant and decedent.
Appellant contends: (1) the trial court improperly based its orders on declarations and verified petitions; (2) an accounting should not be ordered for appellant's joint checking accounts with decedent; (3) an accounting should not be ordered for the period when decedent was alive and the trust was revocable by decedent; and (4) an accounting should not be ordered for the period when appellant was not a trustee of the revocable trust. We affirm the orders of the trial court insofar as they define the rights of respondents as beneficiaries to an accounting.
Decedent had six children, the five respondents and appellant. On August 20, 1989, decedent was seriously injured in a motor vehicle accident which took the life of her husband Ernest J. Evangelho. From the time of the accident until her death on September 12, 1995, the decedent was not in the best of health.
On February 28, 1990, decedent created "The Joan D. EvangelhoTrust" (trust). Assets of the trust were: (1) all personal property "belonging to" decedent; (2) real property known as 371 Montwood Circle, Redwood City, California; (3) unimproved real property in San Mateo county, and (4) all investments held in Paine Webber Account No. FK21147-14. The persons named as trustees were appellant and respondent John M. Evangelho. Appellant signed a written acceptance as trustee. John M. Evangelho did not sign the acceptance and was not aware of the existence of the trust until after the death of decedent. The trust included a no contest clause.
Article two of the trust provided for the distribution of trust assets upon the death of decedent. Since appellant and respondents outlived decedent, no reference will be made in this opinion to provisions for issue or other successors in interest. Decedent's jewelry was to be "distributed outright" to appellant. "The remaining trust estate" was to be distributed in equal shares to appellant and respondents.
Article four provided that decedent as the "settlor" "may at any time revoke this instrument in whole or in part by an instrument in writing delivered to the trustee." "The power of the settlor to revoke or amend this instrument is personal to her, or her attorney-in-fact." On February 27, 1990, decedent executed a durable power of attorney appointing appellant her "attorney-in-fact." Appellant "engaged in no transactions pursuant to the Power of Attorney."
On March 6, 1990, decedent executed a first amendment to the trust. It provided that the 371 Montwood Circle real property would be "distributed outright" to appellant upon the death of decedent and deleted appellant as a beneficiary of the "remaining trust estate."
On October 8, 1990, decedent executed a second amendment to the trust which "replaced co-trustees, [appellant] and John M. Evangelho with herself as trustee."
On January 18, 1991, decedent executed a third amendment to the trust which provided that upon the death of decedent, her 1990 Chevrolet Van would be "distributed outright" to Richard F. Evangelho and $5,000 would be distributed to Tangkina Fifita.
On July 1, 1991, decedent executed a fourth amendment to the trust, which provided that upon the decedent's death her interest in the real property known as 2460 Howard Avenue, San Carlos, CA would be "distributed outright" to appellant. Decedent sold her home in Redwood City and, with the proceeds of that sale and additional cash, acquired a 58 percent interest in the San Carlos residence where she was living with appellant's family.
The only asset in which decedent had an interest outside the trust was one bank account at Wells Fargo Bank. During the time decedent lived in Redwood City, the account was maintained at the Woodside Road office as account number 0331-308353. When decedent moved to San Carlos the account was transferred to such city and became account number 0450-534946. Both accounts were joint tenancy accounts between appellant and decedent. Both were used by decedent as day-to-day personal operating accounts.
At the time the trust was created, the Paine-Webber account had securities and other assets valued at approximately $450,000. At the time of decedent's death, the value of the Paine-Webber account was approximately $132,000. The difference between the two amounts is $318,000.
Respondent John M. Evangelho reviewed "a portion" of the bank records of the trust for the years 1990 and 1991. For the years 1992-1995, "small portions" of the records were viewed by such respondent.
These records disclose that appellant wrote several checks on the Paine-Webber trust account: From May 26, 1990 to February 1, 1991, appellant wrote 12 checks totaling $26,290 made payable to cash or appellant's personal checking account. On May 8, 1990, appellant wrote a check for $1,846.79 made payable to "Levitz." On October 10, 1990, appellant wrote a check for $12,000 which was made payable to appellant and John M. Evangelho as "Trustees of the Joan D. Evangelho Trust." On the back of the check, appellant wrote "for deposit only" to the joint checking account in the names of appellant and decedent. The check was never presented to John M. Evangelho for endorsement. On January 24, 1991, appellant wrote a check for $5000 made payable to "Fidelity Title Insurance."
Respondents also discovered that appellant wrote many checks on the joint checking accounts for clothing and related expenses, from February 16, 1990 until the death of decedent.
Appellant stated that decedent approved all transactions by appellant involving trust assets or other accounts and never requested an accounting. Two checks written on the Paine-Webber trust by decedent totaling $11,000 were presented by appellant. The check for $10,000 was a gift to respondent Ernest Evangelho. Appellant stated that the assets in the Paine-Webber trust were diminished because the value of the stock portfolio declined substantially and decedent used the funds for her own purposes, including gifts to respondents.
Appellant contends that there was no factual basis for the trial court's orders. This contention lacks merit.
No witnesses gave testimony and no documents were formally introduced into evidence in the present case. The factual record submitted for the appeal consists of the trust documents; respondents' verified petitions; statements in appellant's unsworn, unverified opposition memoranda; appellant's durable power of attorney for decedent; oral representations by counsel; a bank statement; canceled checks; and a declaration of respondent John M. Evangelho.
Probate Code section 1022 provides "[a]n affidavit or verified petition shall be received as evidence when offered in an uncontested proceeding under this code." Thus when challenged in a lower court, affidavits and verified petitions may not be considered as evidence at a contested probate hearing. (Estate of Wallace (1977) 74 Cal.App.3d 196, 200-201, 141 Cal.Rptr. 426; Estate of Duncan (1969) 1 Cal.App.3d 212, 215, 81 Cal.Rptr. 568.)
(Estate of Nicholas (1986) 177 Cal.App.3d 1071, 1088, 223 Cal.Rptr. 410; Estate of Fraysher (1956) 47 Cal.2d 131, 134-135, 301 P.2d 848.)
Statements of fact in unsworn, unverified memoranda can also be properly considered as evidence in the absence of objections. (Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 359, 15 Cal.Rptr. 90, 364 P.2d 266.) The only such statements herein are in documents submitted by appellant.
In the present case, both parties submitted the trust documents and some canceled checks as exhibits to support their respective positions. Neither party objected to any of the factual statements presented by the other and neither proffered, or mentioned the need for oral testimony or formal introduction of exhibits. The arguments at the trial court hearing, cited by appellant as "clear and timely objections" that "the evidence was incompetent", refer to the standard of proof required and are not objections to the type of evidence before the trial court. Accordingly, the documents submitted as the appellate record are proper "evidence" in each of the two proceedings (A076882, A077532) which constitute the consolidated appeal.
On July 8, 1996, respondents filed an application for an order that their proposed petition to compel appellant as trustee to account to them as beneficiaries (and for related relief), did not constitute a "cont...
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