Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Marjorie Laird Carter, Judge. Affirmed. Request for Sanctions. Denied. Super. Ct. No. A213252.
Law Offices of Marjorie G. Fuller, Marjorie G. Fuller, J.E.T. Rutter and Parima Pandkhou for Plaintiffs and Appellants.
Enterprise Counsel Group, David A. Robinson, Benjamin P. Pugh and Julie A. Simer for Defendants and Respondents.
OPINION
ARONSON, J.
A decedent’s natural children and his stepchildren dispute the inferences to be drawn from extrinsic evidence concerning the decedent’s intent in executing a trust amendment. The trust amendment left the balance of an existing bank account to the natural children. The decedent had deposited nearly $800,000 into the bank account, but then used the same funds to purchase a 90-day treasury bill (T-bill), that, upon maturity, rolled back into the bank account.
After a six-day bench trial, the trial court determined the decedent knew the T-bill funds would roll back into the bank account, and that he intended to distribute the entire amount of the bank account to the natural children. On appeal, the stepchildren challenge the sufficiency of the evidence to support this determination. They contend the “undisputed” evidence establishes the decedent believed the bank account had about $71,000 in it, and that he only intended to distribute this amount to the natural children.
We disagree. This appeal involves mixed questions of law and fact about the language in the trust amendment and its application in the context of the evidence about the decedent’s intent. There is substantial evidence to support the trial court’s factual determination, based on disputed evidence, that the decedent intended to “‘make things right’” with his natural children, with whom he had developed a close relationship after the stepchildren’s mother had died. There also is substantial evidence the decedent knew the 90-day T-bill would roll back into the same bank account from which it had been drawn. Because the dispute is predominantly factual rather than legal, and involves questions of credibility and human experience, we affirm the trial court’s reasonable construction of the disputed facts.
I
Factual and Procedural Background
To the extent that decedent’s stepchildren challenge the evidentiary basis for the statement of decision, we view the facts in the light most favorable to the natural children, who prevailed below. We give the natural children the benefit of every reasonable inference and resolve all evidentiary conflicts in their favor. (In re Estate of Young (2008) 160 Cal.App.4th 62, 75-76.)
The stepchildren argue different inferences from the evidence and raise other facts to support their claim. But our task is to review the record to determine whether substantial evidence exists to support the trial court’s factual findings, not to determine whether substantial evidence also could have supported a contrary conclusion. “When substantial evidence supports the trial court’s decision, as it does here, we have no power to substitute our own deductions or preferred set of facts.” (People ex rel. Brown v. Tri-Union Seafoods, LLC (2009) 171 Cal.App.4th 1549, 1573; see also In re Marriage of Ruelas (2007) 154 Cal.App.4th 339, 343 [“when, as here, there is substantial evidence that supports the finding of the statement of decision, conflicting evidence is disregarded”].)
We describe the evidence with these principles in mind.
A. The Parties and Their Relationships
The decedent, Thomas A. Dobbie (Tim), and his wife, Ann Dobbie (Ann) established the Dobbie Family Trust in 1997. Following Ann’s death in December 1999, Tim acted as the surviving settlor and trustee of the only revocable subtrust. Tim died on December 11, 2001.
We refer to Tim and Ann by their first names to distinguish them from Tim’s natural children, who bear the same “Dobbie” surname. (See In re Marriage of Olsen (1994) 24 Cal.App.4th 1702, 1704, fn. 1 [use of first names fosters clarity and ease of reference, intending no disrespect].)
Tim and Ann did not have any children together during their lengthy marriage of some 27 years, but each came into the marriage with four children from their first marriages. Appellants Kim Beaudette, Cathleen Greinke, Lori Hunter, and Greg Foster are Ann’s natural children and Tim’s stepchildren. Respondents Steve Dobbie, Scott Dobbie, and Patty Dobbie-Culhane are Tim’s natural children.
A fourth child, Tad Dobbie, is not a party to this litigation. Scott Dobbie died before the time of trial and is represented by his estate.
In 1985, Tim and Ann announced an estate plan to divide their money and property among their combined families. Ann, however, developed “nasty” relationships with Tim’s children, and, with the exception of Scott, made them feel unwelcome and excluded.
In March 1997, Tim and Ann revised their estate plan to effectively disinherit Tim’s children. Tim explained to Jessica Dorman-Davis, the estate planning attorney, that they already were the beneficiaries of the Mabel Dobbie Trust, a substantial trust created by his mother. Tim, a secretive and private man, did not tell his children they had been excluded.
Following Ann’s death, Tim continued to regularly see Scott and grew much closer to Steve and Patty. He provided them with several $10,000 gifts, and named Scott as the sole beneficiary of another bank account.
In May 2001, Tim informed Steve, for the first time that “‘everything’s kind of going to Ann’s kids.’” But Tim assured Steve that he was “‘going to fix this’” and “‘make some changes about leaving everything to Ann’s children.’” Beyond this, he cautioned Steve not to talk any further about it, or to let Patty and Scott know because “‘I’m going to take care of it.’”
B. The Rollover T-Bill
In June 2001, Tim sold the family home on Snug Harbor Road in Newport Beach because “it was just too much house for one person to be living in, and he didn’t need it.” He bought a smaller house on Anita Lane for about half the price. During escrow, Tim asked Steve, who was an architectural designer, for his opinion about the house. After Steve remarked that “‘it’s great,’” Tim replied, “‘Good, I’m glad. It’s going to be yours soon.’”
Tim received a check from the escrow company for nearly $791,000 for the net difference between the sale price for Snug Harbor and the purchase price of Anita Lane.
Despite its substantial size, Tim did nothing with this escrow check for nearly a month. On July 24, 2001, Tim deposited the $791,000 escrow check into one of his existing bank accounts (the 039 Account) at the Bank of America. Tim used the 039 Account “to pay bills out of, and that’s what he lives off of.” He deposited his social security checks into the account, and he also received monthly income from the Mabel Dobbie Trust.
Bank personnel suggested that Tim buy a short-term T-bill to gain some interest, and referred him to Michael Wedemeyer at the bank’s investment division. Using the $791,000 he had deposited into the 039 Account earlier that day, Tim purchased a 90-day rollover T-bill which was linked to the 039 Account. Upon maturity, proceeds from the T-bill would automatically roll back into the 039 Account. Wedemeyer filled out a five-page form in his handwriting, which Tim signed. The form specifically listed the 039 Account and provided, “‘Your brokerage transactions will be automatically drawn from the designated account selected and proceeds and earnings from your brokerage account will be automatically credited to the selected transaction account.’”
Wedemeyer reviewed Tim’s substantial investment history to ascertain his market experience and “to make sure that the investment is suitable.” Wedemeyer wanted to ascertain whether he was dealing with an experienced and sophisticated investor; he saw nothing that led him to question Tim’s investment savvy. Tim could have held the T-bill in a brokerage account, but he did not choose this option. Wedemeyer acted pursuant to Tim’s authorization regarding the T-bill rollover.
C. The Amendment to the Trust
Several weeks after purchasing the 90-day rollover T-bill, Tim called Dorman-Davis “to tell me that he wanted to make a change in some of the trust provisions.” Tim and Dorman-Davis agreed to set up a meeting after Tim returned from a Canadian fishing vacation. Before he left, Tim told Steve that he had called his attorney to “tak[e] care of things....”
Tim personally met with Dorman-Davis on September 25, 2001. Tim told her he wanted to leave the proceeds of the 039 Account to his natural children. Tim declined to specify any particular amount for the bequest to his natural children, although he reaffirmed that he wanted “‘everything else [to] go to Ann’s children.’”
Dorman-Davis believed the 039 Account contained “usually around $60,000.” She did not know about Tim’s recent deposit of the $791,000 brokerage check into the 039 Account, or about his purchase of the rollover T-bill. Tim told her he wanted to keep the net proceeds from the Snug Harbor sale “because he was going to buy this house, this vacation home.” Dorman-Davis asked Tim to provide her with follow-up information regarding all his bank accounts, including the account balances. Tim never did so.
Based on her understanding of Tim’s wishes, Dorman-Davis drafted the trust amendment to gift the balance of the 039 Account to Tim’s natural children. The trust amendment provided, in pertinent part: “[T]he Trustee shall gift [the 039 Account] to certain children of the surviving Trustor. [The 039 Account] is the bank account which receives income distributions from The Mabel Dobbie Trust administered by Northern Trust Bank of California N.A., as Trustee. [¶]... The Trustee shall distribute the balance of said [039 Account], in equal shares to the survivors of Steven L. Dobbie, Patricia E. Dobbie Culhane, and Charles Scott Dobbie.... Such gift shall be free from all estate, inheritance, transfer, gift, and other death taxes.”
D. Tim’s Fatal Illness
On October 25, 2001, the T-bill matured. Pursuant to the terms of the investment agreement drawn up by Wedemeyer, the funds, approximating $791,000, were redeposited into the 039 account. Neither Tim’s natural children nor Dorman-Davis knew about this.
About a week later, on November 6, 2001, Tim was hospitalized to check out what appeared to be a “little tickle” in his throat. Until this time, he appeared to be in relatively good health. Patty, who drove him to the hospital, explained that “he was acting a little goofy and it turned out it was because of the diabetes.”
Tim remained in the hospital for nearly a month. He was diagnosed with what turned out to be a terminal illness.
Tim was released from the hospital on November 28, 2001. Scott and Patty arranged for round-the-clock nursing care, and Patty spent “all my free time at night with my dad.” Patty prepared his meals, went grocery shopping and paid his bills. Scott lived with his father nearly full time.
On December 3, 2001, Scott called Dorman-Davis and told her Tim was feeling better and wanted to sign the trust amendment. She drove to Tim’s house with a notary, and remained for about 30 to 45 minutes.
Tim, while frail, was lucid and responsive to Dorman-Davis’s questions. Dorman-Davis believed him to be mentally competent.
Dorman-Davis asked Scott to provide her with the most recent bank statement for the 039 Account. Scott gave her the October 2001 bank statement, which showed a $71,000 balance. Scott did not find any more recent bank statements. Neither Scott nor Dorman-Davis knew about the T-bill rollover. Dorman-Davis had no “direct recollection” whether she discussed with Scott any specific dollar amount in the 039 Account.
Dorman-Davis testified that she showed Tim the October statement “to identify the account that Tim wanted to give to his children.” “I showed him the statement that Scott provided to me, and so we discussed it.” The notary did not recall that Dorman-Davis discussed any specific dollar amount with Tim.
Scott was present when Tim signed the trust amendment. Tim said “‘I want to have my checking account go to you and your brother and sister.’” Dorman-Davis mailed a copy of the trust amendment to Tim.
Tim died eight days later from congestive heart failure. Several days after Tim’s death, Patty Dobbie discovered the November 2001 bank statement for the 039 Account, showing a balance of approximately $850,000, including the T-bill deposit. The envelope was sealed, and Patty opened it. Patty showed the statement to Scott Dobbie. This was the first time that either Patty or Scott knew about the rollover.
On December 28, 2001, Tim’s children presented the November 2001 bank statement to Dorman-Davis. “She turned white as a sheet” and terminated their meeting stating, “‘Well,... if this goes to litigation, I’m out of it.’”
E. The First Appeal
In April 2005, Robert Mosier, a court-appointed trustee ad litem, filed a safe harbor petition under Probate Code section 21350 to request instructions about how to interpret the trust amendment giving the 039 Account to the Dobbies. The stepchildren claimed that the trust amendment should be interpreted only to include those funds (roughly $71,000) directly traceable to the Mabel Dobbie Trust, and not those funds (roughly $800,000) traceable to the rollover T-bill. The stepchildren abandoned their previous theories of fraud and mistake, as well as their attempts to invalidate the trust amendment.
In a previous unpublished opinion (Greinke v. Dobbie (Dec. 28, 2005, G033179), we affirmed the trial court’s order declaring that the safe harbor petition did not violate the trust’s “no contest” clause. We stated, “Courts have long recognized an action to interpret an ambiguous testamentary instrument is not considered a contest because it does not seek to defeat a testator’s intent, but rather to implement it.” (Ibid.) We construed the purpose of the instant litigation to ascertain Tim’s “true intentions as expressed, albeit ambiguously, in the written trust instrument.” (Ibid.)
F. The Trial and Judgment
The principal controverted issues presented at the court trial were whether the trust amendment was ambiguous, and, if so, whether the amendment was reasonably susceptible to the interpretation that only some, but not all, of the balance of the 039 Account was to be distributed to Tim’s children upon his death. Ann’s children contended that Tim did not intend the T-bill to roll over into the 039 Account, and only intended that a small gift, in the range of $60,000 to $70,000, would go to his natural children through the funds that were directly traceable from the Mabel Dobbie Trust.
The trial court issued a nine-page statement of decision. The court concluded the trust amendment was not ambiguous, and did not restrict the gift from the 039 Account “to only the funds received from the Mabel Dobbie Trust.” (Original italics.) Even if the first amendment were found to be reasonably susceptible to a contrary interpretation through extrinsic evidence, however, the court made the factual finding that “Tim’s intent was to gift the entire balance of the 039 Account, including the T-bill rollover proceeds, to the Dobbie children, and Tim knew the T-bill proceeds would be redeposited in the 039 account.” The court ordered that judgment be rendered in favor of Tim’s children “such that the [039 Account] having a balance of $851,793.10..., including the proceeds from the... T-bill, is gifted to the named Dobbie Children....”
The stepchildren filed a timely notice of appeal.
II
Discussion
A. The Trial Court Properly Construed the Disputed Extrinsic Evidence to Ascertain Tim’s True Intent
We interpret a will or trust to carry out the decedent’s intent in light of his or her words and the circumstances surrounding its execution. (Prob. Code, § 21102, subd. (a).) We follow the same appellate rules of construction for wills as we do for contracts, with the exception that we must determine the intent of an individual rather than the mutual intent of the contracting parties. (See Estate of Dodge (1971) 6 Cal.3d 311, 318 (Dodge); Estate of Russell (1968) 69 Cal.2d 200, 212 (Russell); Prob. Code, § 6111.5.)
We engage in a de novo review of the threshold issue whether to admit extrinsic evidence to prove a meaning to which the language of the instrument is reasonably susceptible. “When no extrinsic evidence is introduced, or when the competent extrinsic evidence is not in conflict, the appellate court independently construes the [instrument]. [Citations.] When the competent extrinsic evidence is in conflict, and thus requires resolution of credibility issues, any reasonable construction will be upheld if it is supported by substantial evidence.” (Founding Members of the Newport Beach Country Club v. Newport Beach Country Club, Inc. (2003) 109 Cal.App.4th 944, 955-956; see also Estate of Kaila (2001) 94 Cal.App.4th 1122, 1132-1133 (Kaila).)
As in Dodge, supra, 6 Cal.3d 311, the trial court issued a “thorough” statement of decision which set forth findings and law as the basis for its judgment. (Id. at p. 320, fn. 7.) We look to this statement of decision to determine whether the trial court’s decision is supported by the facts and the law.
The stepchildren repeatedly contend that the “undisputed” evidence establishes Tim’s lack of knowledge regarding the linkage between the T-bill proceeds and the 039 Account. Their opening brief asserts: “After Tim became ill in late 2001, he instructed his attorney to amend the family trust to leave the funds in his Senior Checking Account, a Bank of America account identified as ‘the 039 account’ to his natural children.” (Italics added.) And they argue in their reply brief, “When [Tim] signed the amendment, the T-bill proceeds were in the account, although the undisputed evidence is that Tim did not know it, having been shown by one of the Dobbie children a statement of account that indicated a balance of some $70,000.” (Italics added.)
In reality, the evidence regarding Tim’s “knowledge” of the amount of funds in the 039 Account was sharply disputed. Far from being on his deathbed, Tim first contacted Dorman-Davis to prepare the trust amendment weeks after he had deposited the $791,000 escrow check into the 039 Account, and shortly before he left for his Canadian fishing trip.
The stepchildren assert that the “evidence” Tim “knew” the T-bill would roll over into the 039 Account rests entirely upon “speculation.” “That speculation commences with... the [bank] T-bill deposit form contain[ing] a small print clause stating proceeds from the treasury bill would roll back into his checking account....”
To the contrary, Michael Wedemeyer, the bank investment officer, testified he personally met with Tim and reviewed the terms of the 90-day T-bill with him while filling out the form for his signature. According to the statement of decision, Wedemeyer “took no action not authorized by Tim regarding the redepositing the mature T-bill proceeds back to the 039 checking account.”
Aside from Wedemeyer’s direct testimony, the trial court had the benefit of the presumption that Tim, by signing the account application, is presumed to have read and understood the provision stating that at maturity the funds from the T-bill would be redeposited into the 039 Account. “‘Generally, one who assents to a writing is presumed to know its contents and cannot escape being bound by its terms merely by contending that he did not read them; his assent is deemed to cover unknown as well as known terms.’” (Stewart v. Preston Pipeline Inc. (2005) 134 Cal.App.4th 1565, 1589, citing Rest.2d Contracts, § 157, com. b, p. 417.) The evidence therefore supports the trial court’s conclusion Tim was a sophisticated investor who understood the consequences of a rollover short-term T-bill that was tied to a linked bank account.
The trial court determined this construction to be consistent with Tim’s expressed intent to “gift the entire balance of the 039 Account” to his natural children, with whom he had reestablished a close relationship after Ann’s death.
In their briefs and again at oral argument, the stepchildren claim that Dorman-Davis heard Tim confirm his belief that the balance in the senior checking account was $71,000 when she presented the trust amendment to him for his signature on December 3, 2001. But neither Scott Dobbie nor the notary, both of whom were present at the time and within earshot, heard Dorman-Davis make any such statement about the account balance.
We defer to the trial court’s determination of the credibility of the conflicting extrinsic evidence. In its statement of decision, the trial court construed Dorman-Davis to have only asked to verify the account number, not to ascertain the account balance: “[S]he requested a recent statement from the 039 Account to verify the account number. She did not ask for or see the amount in the account.” It is the trier of fact, not us, who resolves conflicts in the evidence and is the exclusive judge of witness credibility. (White v. Inbound Aviation (1999) 69 Cal.App.4th 910, 927.)
The stepchildren place considerable weight upon Dorman-Davis’s testimony that Tim intended to give his natural children only the amount of the 039 Account that derived from the Mabel Dobbie Trust. She testified, “It was never intended by Tim, in my opinion, that there would ever be a rollover amount from any other account, and it was never anticipated by me.”
As the stepchildren themselves concede, “Dorman-Davis’s knowledge is irrelevant: what is relevant is Tim’s intent.” As our Supreme Court explained in Dodge, supra, 6 Cal.3d at page 324, footnote 13, “a will is to be construed according to the intention of the testator [citation], not the testator’s attorney, and if through misunderstanding the testator and his attorney ascribe different meanings to the language of the will, that meaning intended by the testator must prevail.”
Tim, who the evidence showed was private and secretive about his personal affairs, never told Dorman-Davis about his purchase of the short-term rollover T-bill with money taken out of the 039 Account, or about his multiple $10,000 gifts to his natural children following Ann’s death. She did not know about Tim’s promise to his natural children to “make things right” and to “reinherit” them. Dorman-Davis herself conceded that Tim never said that he “only” wanted to gift his children funds from the 039 Account that were derived from the Mabel Dobbie Trust: “He never said ‘only.’”
The stepchildren urge us to look to Tim’s accountant as the “most credible witness” to confirm Tim’s intent. They describe him as the “star witness” because “he had no bias for or against any of the children.” The trial judge, however, discounted the value of the accountant’s testimony because he lacked any knowledge about Tim’s purchase of the rollover T-bill in a linked investment account, and never discussed the proposed trust amendment with Tim.
Where, as here, the evidence is conflicting as to Tim’s knowledge of the rollover T-bill and his intentions in making a gift of the balance of the 039 Account to his natural children, we use the substantial evidence test and uphold the trial court’s factual determinations if they are supported by substantial evidence. (See ASP Properties Group v. Fard, Inc. (2005) 133 Cal.App.4th 1257, 1266-1267.) Unlike the trial court, we have no power to weigh the value of the evidence or consider the credibility of the witnesses. (Bookout v. Nielsen (2007) 155 Cal.App.4th 1131, 1141.) Instead, we must honor the trial court’s determinations about witness credibility and not make our own deductions from the cold record. (Kaila, supra, 94 Cal.App.4th at p. 1133, citing Winet v. Price (1992) 4 Cal.App.4th 1159, 1166.) Indeed, “testimony of a witness offered in support of a judgment may not be rejected on appeal unless it is physically impossible or inherently improbable and such inherent improbability plainly appears.” (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1204.) That is not the case here.
B. Reversal of the Trial Court’s Judgment Is Not Warranted Under an Independent Review Standard
The stepchildren urge us to adopt an independent or de novo standard of review without giving any deference to the trial court. They press for independent review because “[t]here is really no conflict in the testimony here as to the facts underlying the purchase of the treasury bill and its deposit into the Bank of America 039 account.... The conflict is in the inferences to be drawn from the undisputed circumstances surrounding the execution of the amendment, and the construction placed upon it.”
We acknowledge our duty to independently interpret written instruments when the issue is one of law, and where it does not depend upon conflicting evidence or witness demeanor. “The possibility that conflicting inferences can be drawn from uncontroverted evidence does not relieve the appellate court of its duty independently to interpret the instrument; it is only when the issue turns upon the credibility of extrinsic evidence, or requires resolution of a conflict in that evidence, that the trial court determination is binding.” (Dodge, supra, 6 Cal.3d at p. 318, citing Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865.)
This, however, is not an appeal that calls into play purely legal principles and their values. As we discussed above, the evidence here is subject to sharply disputed factual inferences about the state of Tim’s knowledge and his expressed intentions to provide an inheritance for his natural children. These are not merely differing legal interpretations; instead, they depend upon the credibility of witnesses and upon the “application of experience with human affairs.” (Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881, 888.) As such, “the question is predominantly factual and its determination is reviewed under the substantial-evidence test.” (Ibid.) “Appellate courts should defer to trial judge decisions ‘whenever the trial judge’s “nether position” in the judicial pyramid makes him a presumptively more capable decisionmaker [citation] because of “his observation of the witnesses [and] his superior opportunity to get ‘the feel of the case.’”’” (Beasley v. Wells Fargo Bank (1991) 235 Cal.App.3d 1383, 1394-1395.)
Nonetheless, we would reach the same result under an independent standard of review. Like the trial court, we construe the trust amendment to mean what it says, namely that Tim intended to leave the entire balance of the 039 Account to his natural children, including the T-bill rollover proceeds. The trust amendment did not qualify the gift or limit it to only the funds received from the Mabel Dobbie Trust. (See Dodge, supra, 6 Cal.3d at p. 320 [“We therefore conclude that the construction adopted by the trial court... will subserve the testator’s over-all plan and objectives”].)
In so doing, we are guided by the decision of the California Supreme Court in Russell, supra, 69 Cal.2d 200. In Russell, the testator’s holographic will left “‘everything I own’” to “‘Chester H. Quinn’” & “‘Roxy Russell.’” Extrinsic evidence established that Quinn was the testator’s close personal friend, but that “Roxy Russell” was her pet dog. On appeal, the friend argued that he, rather than the testator’s niece and only heir-at-law, should receive the dog’s half-share of the estate because the testator did not intend the niece to inherit. The Supreme Court declined to so rewrite the will based on evidence of extrinsic circumstances that the testator intended to do something not expressed in the will. “No words of the will... indicate that the provision for the dog is merely precatory in nature. Such an interpretation is not consistent with a disposition which by its language leaves the residuum in equal shares to Quinn and the dog. A disposition in equal shares to two beneficiaries cannot be equated with a disposition of the whole to one of them who may use ‘whatever portion thereof as might be necessary’ on behalf of the other.” (Id. at p. 214.)
Here, the language of the trust amendment and the circumstances under which it was made support the conclusion that Tim intended to reinherit his natural children by giving them the entire balance of the 039 Account. Tim had expressed his intentions to Steve and to Scott to “fix things”; indeed, he told Steve that the Anita Lane house (which was acquired through half of the proceeds from the sale of the Snug Harbor residence) was “‘going to be yours soon.’” Leaving the $791,000 in net proceeds to his children in the 039 Account accomplished these same ends. It is entirely reasonable to presume that Tim, a sophisticated investor, would remember that a 90-day T-bill would roll back into the same account from which it had been drawn.
Most critically, we fail to understand why Tim, in the last days of a terminal illness, would go to the trouble of calling in his lawyer and notary merely to make relatively minimal changes to give his disinherited natural children the interest income generated by the Mabel Dobbie Trust. Tim’s failure to disclose the full extent of his intent to his attorney, accountant, children and stepchildren is consistent with his secretive nature and prior conduct. Like the trial court, we conclude the evidence supports the conclusion Tim intended to leave whatever was in the 039 Account to his natural children.
At oral argument, the stepchildren’s counsel stressed Dorman-Davis’s testimony regarding Tim’s desire to remain liquid in order to purchase a vacation home. But there is no evidence that Tim took any steps to purchase such a home, let alone specify who would inherit it. The attorney’s testimony is far too oblique for us to differently construe the language in the trust amendment.
III
Disposition
The judgment is affirmed. Costs on appeal are awarded to respondents.
WE CONCUR: BEDSWORTH, ACTING P. J., FYBEL, J..
We grant respondents’ motion, filed on February 20, 2009, to augment the record to include Scott Dobbie’s deposition testimony, as admitted into evidence at trial in light of his death. Appellants do not dispute that the bracketed portions of the transcripts, which portions are attached as exhibits to the motion, accurately reflect the parts of the deposition testimony that were admitted into evidence. As the trial court itself recognized, “[i]f you highlight in yellow and you make a copy the yellow doesn’t show up....” Since the copies of the deposition transcripts accurately reflect those portions of Scott Dobbie’s testimony that the parties collectively submitted into evidence, we deny appellants’ request for sanctions.