Poag v. Winston

• Decision Date: 30 October 1987
• Citation: 241 Cal.Rptr. 330,195 Cal.App.3d 1161
• Parties: John POAG, Sol Price and Harry Volk, as Cotrustees, etc., Plaintiffs and Appellants, v. Laura WINSTON, Defendant and Respondent. Civ. B010816.
• Court: California Court of Appeals Court of Appeals

Page 330

241 Cal.Rptr. 330

195 Cal.App.3d 1161

John POAG, Sol Price and Harry Volk, as Cotrustees, etc., Plaintiffs and Appellants, v. Laura WINSTON, Defendant and Respondent.

Civ. B010816.

Court of Appeal, Second District, Division 1, California.

Oct. 30, 1987.

Review Denied Jan. 27, 1988.

Haight, Dickson, Brown & Bonesteel and Roy G. Weatherup and Thomas N. Charchut, Santa Monica, for petitioners and appellants

Laura Winston, in pro per.

SPENCER, Presiding Justice.

INTRODUCTION

Trustees John Poag, Sol Price and Harry Volk appeal from an order determining the rights of Laura Winston in the assets of Ben Weingart Revocable Trust Number One. The trustees petitioned for such a determination, pursuant to Probate Code section 1138.1, alleging respondent had violated the terms of a "no contest" provision added to the trust by amendment. Following a trial, the court found in favor of respondent.

STATEMENT OF FACTS

Ben Weingart Revocable Trust Number One was established by written declaration of trust on August 1, 1971. Respondent is one of approximately 29 beneficiaries named in the trust instrument. Pursuant to paragraphs 3.4.3 and 3.4.4, respondent was to receive $40,000 upon the death of the trustor and the use of a two-bedroom apartment and any tangible personal property used in connection therewith, rent-free, in a building owned by the trust estate or, in the discretion of the trustees, the monthly cash equivalent of the apartment's rental value, for the lesser of respondent's lifetime or 15 years from the date of the trustor's death. In addition, respondent was to receive $2,000 per month for 180 months commencing at the trustor's death; pursuant to paragraph 3.8, that amount could be increased. The foregoing provisions were added to the trust instrument by an amendment dated August 19, 1971.

A further amendment to the trust instrument, dated August 27, 1971, also provided respondent with the use of a Cadillac or equivalent quality automobile for 10 years commencing at the trustor's death. A further amendment, dated August 31, 1971, provided respondent with a life estate in an undivided 75 percent interest in the real property located at 415 South Westlake, Los Angeles, California, as of the date of the trustor's death. The trust instrument was again amended on February 28, 1973, to provide respondent with a lifetime interest in all net income from the 415 South Westlake property, as well as real property located at 401 and 437 South Westlake, commencing at the trustor's death.

On June 29, 1973, the trust instrument was further amended to add paragraph "A. The defeat in whole or in part of this Trust Agreement, or any provision or part thereof; or

10.8 to article 10 of the original declaration of trust. Paragraph 10.8 provides: "The provisions of this Trust Agreement are in each case conditioned that the beneficiaries named in each case shall not, directly or indirectly, aid, counsel, commence, or prosecute any demands, claims, negotiations, suits, actions or proceedings; in any court of law, or other arenas, having as an object:

"B. The obtaining for anyone of (i) anything of value from this Trust or my estate, (ii) any of the assets of this Trust or of my estate, or (iii) any assets in which I had an interest immediately prior to my death, grounded on, arising out of, or related to any claimed or actual agreement, representation or understanding not expressly set forth in a written and executed agreement that I would (or would cause another to) deliver to anyone anything of value (directly or indirectly, in trust, by will, or otherwise) as a gift, or for services or any other thing of value (including by way of example but not limitation any employment or assistance) received by me or another. The word 'another' includes anyone or more (or combination thereof) people, partnership, corporations, trusts, estates or other entities.

"I revoke and annul all gifts and provisions in trust herein made to any beneficiary if such beneficiary directly or indirectly aids, counsels, commences or prosecutes any such demands, claims, negotiations, suits, actions or proceedings (any such beneficiary being called a 'Contestant'), and in each such case for money or property which is by this Trust Agreement provided ... for the benefit of any such Contestant, shall thereupon lapse or terminate.

"2. This Amendment shall be effective as of ... August 19, 1971, with the same force and effect as if the provisions of this Amendment had been set forth in Trust Number One on that date."

In October 1974, Mr. Weingart directed the preparation of three documents: an irrevocable lifetime trust of which respondent was to be the beneficiary, an agreement to make a codicil to his will and a fifth codicil to his will. At some point prior to October 21, 1974, Mr. Weingart came into possession of three writings entitled "Summary of Terms of Laura Winston Irrevocable Charitable Remainder Unitrust," "Summary of Agreement to Make a Codicil and Summary of Fifth Codicil" and "Fifth Codicil."

The "Summary of Terms of Laura Winston Irrevocable Charitable Remainder Unitrust" states generally the trust will be funded with a corpus of $1,000,000 in tax-free municipal bonds; respondent is to have a life interest in all income from the trust corpus and, upon her death, the corpus is to be transferred to an existing charitable trust. Paragraph 6.5 provides: "Laura gives up any and all claims against Mr. Weingart's assets or estate, except for:

"a. The net income from this Trust.

"b. The property to be given her under Mr. Weingart's Fifth Codicil.

"c. Any food or clothing, or other miscellaneous items not exceeding $10,000 per year, which Mr. Weingart may give her." Paragraph 7 invokes a forfeiture should respondent violate the conditions of this trust.

On October 21, 1974, Mr. Weingart deleted the figure "$1,000,000" in the description of the trust corpus and substituted instead the figure "$2,000,000," initialing the changes. He also deleted paragraph 7, invoking a forfeiture, and initialed that change. He signed and dated the document, indicating his intent to do so to William S. Kroger; his signature was witnessed by Mr. Kroger and Luta King.

The document entitled "Summary of Agreement to Make a Codicil and Summary of Fifth Codicil" provides: "Mr. Weingart agrees to make a Fifth Codicil to his Will, in which he will leave the following assets to Laura Winston:

"1. The residence located at 228 South Hudson Avenue, Los Angeles, California "2. All of the clothing and household furniture located at the above residence, and Mr. Weingart's jewelry;

"3. Fifty thousand dollars ($50,000) in cash....

"Mr. Weingart agrees that he will not sell or give away the residence or furniture or jewelry and that he will not revoke or change the Fifth Codicil." The next two paragraphs have been excised and marked "out" in Mr. Weingart's handwriting; each of these markings is followed by the initials "BW," also in his handwriting.

A document entitled "Fifth Codicil" provides in pertinent part: "In consideration of and on condition that Laura Winston shall be a faithful, true and helpful friend and companion to me at all times subsequent to the date of the execution of this Fifth Codicil to my Will, I entered into an agreement with Laura Winston, dated October __, 1974, that I would create this Fifth Codicil to my Will. Based on such areement, the following changes are made in my Will:

"... I give, devise and bequeath to Laura Winston:

"3.1 My interest in my residence at 228 South Hudson Avenue, Los Angeles, California 90004.

"3.2 All of my interest in the clothing, household furniture and furnishings located in my said residence and my jewelry.

"3.3 Fifty thousand Dollars ($50,000) in cash.

".........................."

The initial paragraph of "Fifth Codicil Article 3" up to the phrase beginning, "I give ...," and the concluding paragraph thereof are excised and marked "out" in Mr. Weingart's handwriting; each marking is followed by the initials "BW," also in his handwriting. Subparagraphs 3.1, 3.2 and 3.3 are checked off and initialed "BW" in Mr. Weingart's handwriting. The typewritten copy is followed by the words, "These are gifts do not take away BW," again in Mr. Weingart's handwriting.

Shortly thereafter, Mr. Weingart became the object of a petition for conservatorship. Temporary conservators were appointed ex parte on October 29, 1974; an order granting the petition and appointing permanent conservators of the person and estate of Mr. Weingart was made on November 19, 1974.

On April 15, 1975, respondent filed an action against Messrs. Poag, Price, Rosenburg and others in their individual capacities. The complaint asserts claims for negligent and intentional interference with contractual relations and prospective economic advantage. Respondent alleges a long-standing relationship of companionship, friendship, care and business association between respondent and Mr. Weingart, as well as Mr. Weingart's desire that the relationship continue, in return for which he would see that respondent's lifetime economic needs were met.

The complaint specifically alleges in pertinent part: "In early 1974, WEINGART directed the [conservator] defendants ... to have the Lawyer defendants provide additional benefits for plaintiff by Will." Accordingly, an agreement to make a codicil and a draft of a fifth codicil were drafted, as was a trust agreement. "Defendants failed to comply with the instructions of WEINGART and placed restrictions and limitations" in the draft documents to which both Mr. Weingart and respondent objected. "When the defendants presented [the documents] to plaintiff for execution they threatened to [institute a conservatorship] and to prevent WEINGART from making any arrangements for the benefit and support of Plaintiff if plaintiff refused to sign said documents."

The complaint further alleges Mr. Weingart gave...