Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. P171925, Julia C. Kelety, Judge.
McCONNELL, P. J.
The revocable family trust at issue here provided that the trustors and original trustees, a married couple, were required during their lifetimes to provide accountings only to themselves. After the death of the surviving spouse, one of the couples' children, a trust beneficiary, sought to obtain accountings from the successor trustee for the 15 years during which the surviving spouse was the sole trustee. The issue in this appeal is whether the probate court erred by finding, during a so-called "safe harbor" proceeding, that a proposed petition for the accountings would violate a no contest clause in the trust. We find no error and affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
Edward and Sally Fleischer married in 1951, and during the marriage they adopted three children, Cynthia G. Fleischer, Gary Fleischer and Cathleen Redinger. In 1991 Edward and Sally, as trustors and trustees, established a revocable living family trust (the Trust). Edward died on March 13, 1994, leaving Sally as the sole trustee. In accordance with the terms of the Trust, it was split into three subtrusts: Survivor's, Marital, and Decedent's Trusts. The Survivor's Trust consists of Sally's separate property and her community and quasi-community property interests in the trust estate; the Marital Trust consists of "property equal in value to the minimum pecuniary amount necessary as a marital deduction to eliminate entirely (or reduce to the maximum extent possible) any federal estate tax payable" as a result of Edward's death; and the Decedent's Trust consists of any part of the trust estate not required to fund the Survivor's and Marital Trusts. After Edward's death, the Marital and Decedent's Trusts became irrevocable, but Sally retained the right to revoke the Survivor's Trust. Under the Marital and Decedent's Trusts, the couples' three children are remainder beneficiaries in equal shares.
To avoid confusion, we use the family members' first names.
Sally amended the Survivor's Trust eight times. Under the eighth amendment, she intentionally provided less for Cynthia than her other children. She gave Cynthia $75,000, and Gary and Cathleen each $1.5 million. Sally bequeathed the residue of the Survivor's Trust to a scholarship fund she established in her name at Stanford University.
Sally died on January 12, 2009, after which John Edwards became successor trustee of the Survivor's Trust, and Cathleen became successor trustee of the Marital and Decedent's Trusts. In June 2009 Cynthia filed a safe harbor petition against Cathleen, Gary and Edwards, for a determination that a proposed petition seeking certain probate court orders would not run afoul of the following no contest clause in paragraph 5.9 of the Trust:
"No-Contest Clause. In the event any beneficiary under this trust shall, singly or in conjunction with any other person or persons, contest in any court the validity of this trust, or contest either or both Trustors' Wills, or shall seek to obtain an adjudication in any proceeding, in any court, that this trust or any of its provisions, or that such Wills or any of their provisions, are void, or seek otherwise to void, nullify, or set aside this trust or any of its provisions, then the right of that person to take any interest under this Trust shall be determined as if that person had predeceased the execution of this Trust. Any then serving Trustee is hereby authorized to defend, at the expense of the Trust Estate, any contest or other attack of any nature this trust or any of its provisions."
Sally's eighth amendment to the Survivor's Trust also amended paragraph 5.9 to provide somewhat different language for purposes of that trust. As amended, it states: "If any beneficiary under this Declaration of Trust shall... contest in any court the validity of any trust created by this instrument, or any will or other document making a transfer to this trust, or shall seek to obtain an adjudication in any proceeding in any court that this trust or any of its dispositive provisions are void, or otherwise seek to void, nullify, or set aside the trust or any of its provisions, then the right of that person or entity to take any interest given to him/her/it by the trust amendment and/or any amendment thereto, shall be determined... as if the person predeceased the execution of the declaration of trust without surviving issue and/or the entity never existed."
The proposed petition sought the removal of Cathleen and Gary as successor trustees of the Marital and Decedent's Trusts and the appointment of a temporary trustee; accountings by Cathleen on the Marital and Decedent's Trusts from the date of Edward's death in 1994 to the present; an order requiring Cathleen to provide Cynthia with copies of Edward's final income tax return, a copy of the allocation agreement among the three subtrusts, and a statement of any nontrust assets affected by the death of either Edward or Sally; an accounting by Edwards on the Survivor's Trust from January 12, 2009 to the present; an order requiring Edwards to provide Cynthia with copies of Sally's final income tax return; a copy of the allocation agreement among the three subtrusts; and a statement of any nontrust assets affected by the death of either Edward or Sally.
In her proposed petition, Cynthia alleged Gary was to succeed Cathleen as trustee of the Marital and Decedent's Trusts. The response to the petition denies that Gary was named in any document as a successor trustee, and the appellate record contains no such document. Paragraph 2.2 of the Trust originally named two persons other than Sally's children as her successor trustees. Sally amended paragraph 2.2 several times, and in 2004, she named Cathleen as one of two successor trustees. The other successor trustee was someone other than Edwards, and it is unclear when he was named in that capacity. In any event, neither Edwards nor Gary is involved in this appeal.
The proposed petition accused Cathleen and Gary of various breaches of trust. The petition also alleged Sally may have misallocated trust assets among the three subtrusts after Edward's death, "based upon information recently given to [Cynthia] that the Survivor's Trust is worth approximately $14,000,000.00, which is twice the value of the Marital Trust." (Some capitalization omitted.) The petition alleged "that any allocation [by Sally] by and between the three subtrusts, which served to either (1) under fund the Marital Trust, or (2) place appreciating assets in the Survivor's Trust to the detriment of both the Marital Trust and Decedent's Trust, was self-serving and a breach of the fiduciary duty of loyalty, a breach of the duty to deal impartially with the beneficiaries, and a breach of the duty to avoid a conflict of interest." (Some capitalization omitted.)
In their opposition, the successor trustees conceded Cynthia's proposed petition is not a contest within the meaning of the Trust's no-contest clause as to accountings by Cathleen and Edwards from the date they became successor trustees. The successor trustees also conceded Cynthia is entitled to copies of Edward's and Sally's final tax returns, copies of the allocations among the subtrusts, and a statement of nontrust assets affected by either of their deaths.
Cathleen argued, however, that a request for accountings from her for the period between Edward's and Sally's deaths violated the Trust's no-contest clause, because it sought to nullify two provisions of the trust. Cathleen cited paragraph 5.16 of the Trust, which provides in part: "Confidentiality: The Trustee shall account only to the Trustors during their lifetime, or the lifetime of the Survivor, and said Trustors' written approval shall be final and conclusive in respect to transactions disclosed in the account as to all beneficiaries of the Trust." Cathleen also cited paragraph 2.6 of the Trust, which provides: "A successor Trustee shall have no responsibility for the acts or omissions of any prior Trustee nor any duty to investigate the accounts of administration of any prior Trustee."
Before the hearing in September 2009, the court issued a tentative ruling in line with Cathleen's analysis. On December 15, 2009, the court issued a formal order denying Cynthia safe harbor relief on her proposed petition insofar as it concerned the ouster of Cathleen and Gary as successor trustees of the Marital and Decedent's Trusts and the appointment of a temporary trustee, and accountings by Cathleen on the Marital and Decedent's Trusts from the date of Edward's death in 1994. The court granted Cynthia safe harbor relief on the proposed petition insofar as it requested an accounting from Edwards on the Survivor's Trust from the date he became successor trustee, and sought an order requiring Cathleen and Edwards to provide Cynthia with copies of Edward's and Sally's final income tax returns, the allocation agreement between the three subtrusts, and a statement of any nontrust assets affected by their deaths.
The appellate record shows Cathleen and Edwards have provided Cynthia with the following information: Edward's 1994 final tax return; Sally's 2008 final tax return; the original split of assets among the three subtrusts on Edward's death; a 1998 revised split assets among the three subtrusts; a 1998 petition for settlement of accounts and reports by Sally pertaining to the Marital and Decedent's Trusts; a 1998 order approving the petition; an appraisal of assets as of the date of Sally's death; and "Merrill Lynch statement which reflect all the assets of the [M]arital [T]rust and the [D]ecedent's [T]rust to the date of Sally['s] death."
DISCUSSION
I
A
The single issue on appeal is whether the court erred by finding Cynthia's proposed petition to compel Cathleen to render accountings on the Marital and Decedent's Trusts from the date of Edward's death in 1994 would trigger the Trust's no contest clause because it sought to nullify a term of the Trust. We find no error.
"A no contest clause 'essentially acts as a disinheritance device, i.e, if a beneficiary contests or seeks to impair or invalidate the trust instrument or its provisions, the beneficiary will be disinherited and thus may not take the gift or devise provided under the instrument.' " (Betts v. City National Bank (2007) 156 Cal.App.4th 222, 231 (Betts).) " 'In essence, a no contest clause conditions a beneficiary's right to take the share provided to that beneficiary under such an instrument upon the beneficiary's agreement to acquiesce to the terms of the instrument. [Citation.] [¶] No contest clauses are valid in California and are favored by the public policies of discouraging litigation and giving effect to the purposes expressed by the testator.' " (Ibid.)
"Because a no contest clause results in a forfeiture, however, a court is required to strictly construe it and may not extend it beyond what was plainly the testator's intent. [Citations.] [¶] 'Whether there has been a "contest" within the meaning of a particular no-contest clause depends upon the circumstances of the particular case and the language used.' [Citations.] '[T]he answer cannot be sought in a vacuum, but must be gleaned from consideration of the purposes that the [trustor] sought to attain by the provisions of [his or her trust]. [Citation.] Therefore, even though a no contest clause is strictly construed to avoid forfeiture, it is the [trustor's] intentions that control, and a court 'must not rewrite the [trustor's trust] in such a way as to immunize legal proceedings plainly intended to frustrate [the trustor's ] unequivocally expressed intent from the reach of a no-contest clause.' " (Burch v. George (1994) 7 Cal.4th 246, 254-255, fn. omitted, italics added.)
"If an instrument containing a no contest clause is or has become irrevocable, a beneficiary may apply to the court for a determination of whether a particular motion, petition, or other act by the beneficiary... would be a contest within the terms of the no contest clause." (Probate Code, former § 21320, subd. (a).) " ' "[Former] section 21320 provides... a 'safe harbor' for beneficiaries who seek an advance judicial determination of whether a proposed legal challenge would be a contest [under a particular no contest clause]." [Citation.] If a court determines that a particular proposed action would constitute a contest, the beneficiary will then be able to make an informed decision whether to pursue the contest and forfeit his or her rights under a will or to forgo that contest and accede to the will's provisions.' " (Betts, supra, 156 Cal.App.4th at p. 232.)
All further statutory references are also to the Probate Code. "Effective January 1, 2010, the Legislature repealed sections 21300 through 21308 (General Provisions) and former sections 21320 through 21322 (Declaratory Relief) and enacted a major revision of the statutory scheme governing no contest clauses. (See §§ 21310-21315.) The new law limits the enforceability of no contest clauses to only three types of claims: (1) direct contests brought without probable cause; (2) challenges to the transferor's ownership of property at the time of the transfer if expressly included in the no contest clause; and (3) creditor's claims and actions based on them, if expressly included in the no contest clause. [Citations.] This new statutory scheme applies only to instruments that became irrevocable on or after January 1, 2001. (§ 21315.)" (Fazzi v. Klein (2010) 190 Cal.App.4th 1280, 1283, fn. 2.) Because the Marital and Decedent's Trusts became irrevocable in 1994, the former law applies to the safe harbor determination at issue here.
"A ruling on whether the beneficiary's proposed action would be a... contest may not involve a determination on the merits of the action itself. [Citation.] This makes sense. Otherwise, the summary procedure could be used to allow the very form of challenge and protracted litigation the [trustor] sought to prevent." (Estate of Ferber (1998) 66 Cal.App.4th 244, 251(Ferber); Balian v. Balian (2009) 179 Cal.App.4th 1505, 1510-1511, citing former § 21320, subd. (c) ["A determination under this section of whether a proposed motion, petition, or other act by the beneficiary violates a no contest clause may not be made if a determination of the merits of the motion, petition, or other act by the beneficiary is required."].)
In reviewing a probate court's order on a former section 21320 application, we apply a de novo standard of review. "Where, as here, '[t]he parties presented no extrinsic evidence to the trial court to aid in the interpretation of the trust document..., we must deduce the intent of the trustor[] from the face of the document.' " (Betts, supra, 156 Cal.App.4th at p. 231.)
B
Again, paragraph 5.16 of the Trust provides: "Confidentiality: The Trustee shall account only to the Trustors during their lifetime, or the lifetime of the Survivor, and said Trustors' written approval shall be final and conclusive in respect to transactions disclosed in the account as to all beneficiaries of the Trust." We conclude Cynthia's proposed petition sought to nullify paragraph 5.16 of the Trust, and thus she is not entitled to safe harbor relief on the accounting issue. We are concerned with Edward's and Sally's intent, and paragraph 5.16 evidences an intent to conduct their financial affairs privately, without any duty to account to their children for their administration of the Trust. The proposed petition sought accountings to someone other than Sally for the last 15 years of her life, when paragraph 5.16 requires accountings only to Sally for that period. Paragraph 5.16 does not suggest any intent to allow a beneficiary to seek retroactive accountings from the successor trustee for the period of thesurviving spouse's administration of the Trust. Cynthia cannot now compel Cathleen to produce what Cynthia could not have compelled Sally to produce during her lifetime.
Cynthia's argument on paragraph 5.16 of the Trust is that it applies only to accountings requested during Edward's and Sally's lifetimes. Relying on the term "Confidentiality" in paragraph 5.16, Cynthia submits "this provision was intended to protect the Trustors' financial privacy during their lifetime, " and "[n]ow that both Trustors are dead, their intent to provide financial 'confidentiality' during their lifetime died with them." Cynthia, however, cites no legal authority to support the notion Sally's confidentiality interest in the manner in which she handled her finances was extinguished on her death. Parties are required to include citation to authority in their briefs, and the absence of this necessary element allows us to treat the issue as forfeited. (Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448; Nein v. HostPro, Inc. (2009) 174 Cal.App.4th 833, 855.)
Moreover, even if Cynthia's proposed petition arguably did not seek to nullify paragraph 5.16 of the Trust, she is not entitled to safe harbor relief on the accounting issue because it did seek to nullify paragraph 2.6, which provides: "A successor Trustee shall have no responsibility for the acts or omissions of any prior Trustee nor any duty to investigate the accounts of administration of any prior Trustee." (Italics added.) Cathleen relied on paragraph 2.6 as well as paragraph 5.16 in her response to Cynthia's safe harbor petition. A proposed petition to compel Cathleen to prepare accountings going back to 1994 would require her to investigate Sally's accounts and administration of the Trust after Edward's death.
The court's formal order does not address paragraph 2.6 (it also does not address paragraph 5.16), but we may consider an additional ground on which the order may be upheld. "Respondents are free to urge affirmance of the judgment [or order] on grounds other than those cited by the trial court." (Little v. Los Angeles County Assessment Appeals Bd. (2007) 155 Cal.App.4th 915, 925, fn. 6, citing D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19.) " 'No rule of decision is better or more firmly established by authority, nor one resting upon a sounder basis of reason and propriety, than that a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion.' " (D'Amico v. Board of Medical Examiners, at p. 19.)
The court's minutes do refer to paragraphs 2.6 and 5.16.
In her reply brief, Cynthia asserts her proposed petition does not affect paragraph 2.6 because the "requested order does not require [Cathleen] to investigate anything. To the contrary, Cynthia simply requests that [Cathleen] provide her with Sally's accounting from March 13, 1994 to January 12, 2009, the years in which Sally was Trustee. Cynthia — not [Cathleen] — will then conduct her own investigation with regard to the propriety of the acts or omissions taken by Sally while she was Trustee."
Cynthia, however, never took this position at the trial court. Her proposed petition states Cynthia "has made repeated requests for an accounting, which have been ignored, " and she "therefore seeks an order compelling [Cathleen] to account for these two trusts from the date that they became irrevocable, on March 13, 1994." The proposed petition prays, "That the Court order [Cathleen] to render an accounting of the Marital Trust and the Decedent's Trust from March 13, 1994 through and including the present." This is the theory to which Cathleen and the trial court responded. The proposed petition does not ask for an order requiring Cathleen to turn over any accountings by Sally that may be in Cathleen's possession, and Cynthia made no such argument at the hearing. Issues not presented to the trial court are waived on appeal. (Royster v. Montanez (1982) 134 Cal.App.3d 362, 367.) A party may not ordinarily change the theory of his or her case for the first time on appeal. (Panopulos v. Maderis (1956) 47 Cal.2d 337, 340.) Even in her opening brief, Cynthia does not raise her current theory. In her respondent's brief, Cathleen rightfully understood Cynthia claimed entitlement to "a retrospective accounting" by Cathleen. We deem Cynthia's current position forfeited. Further, had Cynthia's proposed petition prayed for Cathleen's delivery of accountings Sally made after Edward's death, safe harbor relief is nonetheless improper under paragraph 5.16 of the Trust.
Additionally, paragraphs 2.6 and 5.16 of the Trust harmonize with section 16062, subdivision (a), which provides "the trustee shall account at least annually, at the termination of the trust, and upon a change of trustee to each beneficiary to whom income or principal is required or authorized in the trustee's discretion to be currently distributed." Cynthia concedes that before Sally's death she was a remainder beneficiary not entitled to accountings under section 16062. Section 16062 does not provide for accountings from a successor trustee for the period predating his or her administration of the trust, to persons who were remainder beneficiaries during that period.
II
Alternatively, Cynthia contends that even if paragraphs 2.6 and 5.16 of the Trust are interpreted against her, she is entitled to safe harbor relief on the accounting issue because those paragraphs violate statutory law. She cites former section 16061, which provides: "Except as provided in [former] Section 16064, on reasonable request by a beneficiary, the trustee shall provide the beneficiary with a report of information about the assets, liabilities, receipts, and disbursements of the trust, the acts of the trustee, and the particulars relating to the administration of the trust relevant to the beneficiary's interest, including the terms of the trust that describe or affect the beneficiary's interest." While a remainder beneficiary has no right to accountings under section 16062, "[former] section 16061 gives the remainder beneficiary the right to request information from the trustee. If the trustee denies the request, then the remainder beneficiary may petition the probate court... to compel the trustee to provide the information or for a particular account.... While an accounting under section 16062 is mandatory, information or a particular account under [former] section 16061, sought by petition..., lies within the probate court's discretion." (Esslinger v. Cummins (2006) 144 Cal.App.4th 517, 526.)
In 2010 the Legislature amended sections 16061 and 16064. (Stats. 2010, ch. 621, §§ 3, 7.)
Former section 16064, subdivision (a) provides the trustee is not required to report information or account to a beneficiary under certain circumstances, including "[t]o the extent the trust instrument waives the report or account."
Cynthia's proposed petition, however, did not cite former section 16061. Again, issues not presented to the trial court are forfeited on appeal (Royster v. Montanez, supra, 134 Cal.App.3d at p. 367). Cynthia cites section 8002 for the proposition she was not required to cite former section 16061 in her proposed petition, but section 8002 sets forth the elements of a petition to commence proceedings for the administration of a decedent's estate. Additionally, we may treat the section 8002 issue as forfeited since Cynthia raised it only in her reply brief. Moreover, under the plain language of former section 16061, a trustee has the obligation to provide informational reports on request pertaining to the trustee's own administration of the estate, rather than to a previous trustee's administration.
Cynthia also relies on section 16060, which her proposed petition did cite. Section 16060 provides: "The trustee has a duty to keep the beneficiaries of the trust reasonably informed of the trust and its administration." "The California Law Revision Commission comment to section 16060 explains, 'The trustee is under a duty to communicate to the beneficiary information that is reasonably necessary to enable the beneficiary to enforce the beneficiary's rights under the trust or to prevent or redress a breach of trust.' [Citations.] This duty is 'consistent with the duty stated in prior California case law to give beneficiaries complete and accurate information relative to the administration of a trust when requested at reasonable times.' " (Salter v. Lerner (2009) 176 Cal.App.4th 1184, 1187-1188 (Salter).) Unlike former section 16061 and section 16062, a trustee's affirmative duty under section 16060 is not subject to waiver under former section 16064. (Salter, at p. 1188.)
Again, however, section 16060 does not suggest any duty of a successor trustee to provide information on the previous trustee's administration of the trust. Cynthia cites no legal authority for her contention that she can enforce Sally's duty to provide her with information through Cathleen as successor trustee. Further, Cynthia's reliance on Salter is misplaced. In Salter, the court held that a proposed petition by contingent remainder beneficiaries for reasonable information under section 16060 from the surviving trustee (the beneficiaries' stepfather) on his own administration of a family trust would not trigger a no contest clause. The beneficiaries sought to force their stepfather to reveal his financial activities, including deposits on a Ferrari and a Bentley, to determine "whether he is subsidizing his lifestyle through expenditures of income, invasions of principal, and, if so, from what subtrust." (Salter, supra, 176 Cal.App.4th at p. 1188.) The court explained the trustee's duty under section 16060 cannot be waived, and a petition to enforce the duty "is not a direct or indirect challenge to the validity of the trust or its terms." (Salter, at p. 1189.) In contrast, Cynthia's proposed petition sought to force Cathleen to provide accountings for the 15 years Sally administered the Trust after Edward's death.
Paragraphs 2.6 and 5.16 of the Trust do not infringe on Cynthia's statutory right to obtain information from the successor trustees on their administration of the subtrusts after Sally's death. Further, paragraphs 2.6 and 5.16 did not infringe on Cynthia's statutory right to obtain information from Sally on her administration of the Trust after Edward's death. Had Sally objected to such a request, perhaps the court would have given Cynthia discretionary relief. At this point, however, she cannot rely on section 16060 to compel Cathleen to render retroactive accountings.
III
Additionally, Cynthia asserts the court erred by denying her safe harbor relief because paragraphs 2.6 and 5.16 of the Trust violate public policy by "allow[ing] the Survivor [Sally] to unlawfully deplete the assets of both the Marital Trust and the Decedent's Trust without providing the beneficiaries with any accountability or recourse." As discussed, however, neither of those paragraphs affected Cynthia's statutory right to informational reports from Sally during her administration of the Trust.
Salter, supra, 176 Cal.App.4th 1184, is unavailing. In Salter, the court held that interpreting a no contest clause to prohibit the beneficiaries from seeking information from their stepfather would violate public policy as well as statutory law. As to public policy, the court cited former section 21305, explaining: "[Former] [s]ection 21305, subdivision (b) lists 12 categories of pleadings that may not be considered 'contests' as a matter of public policy, including '[a] pleading challenging the exercise of a fiduciary power' and '[a] petition to compel an accounting or report of a fiduciary, if that accounting or report is not waived by the instrument.' Although not precisely enumerated, respondents' petition to compel [trustee] to perform his nonwaivable, fiduciary duty under section 16060 falls within the scope of the protection included in [former] section 21305, subdivision (b)." (Salter, at p. 1189; former § 21305, subd. (b)(6) & (12).)
Here, however, the Marital and Decedent's Trusts became irrevocable on Edward's death in 1994. Former section 21305, subdivision (b) "shall apply only to... documents that become irrevocable on or after January 1, 2001." (Former § 21305, subd. (d).) Cynthia ignores this distinction.
Ferber, supra, 66 Cal.App.4th 244, is also unhelpful. In Ferber, the trial court granted safe harbor relief to a will beneficiary whose proposed petition sought to challenge the executor's accounting. The trial court found that a no contest clause on that issue violated public policy. (Id. at p. 252.) On appeal, the court held "the trial court should have found the no contest clause was valid insofar as it prohibited frivolous objections to the accounting, but otherwise was invalid. Absent the ability of a beneficiary to point out defects in the accounting, a court cannot properly perform its duty to monitor the administration of the estate. Enforcing the clause against nonfrivolous objections would violate the same policy that eschews no contest clauses that effectively prohibit any attempt to remove an errant executor." (Id. at p. 255.) The court also held the question of frivolousness is a "factual determination that would be improper for a [former] section 21320 proceeding." (Ibid.)
Cynthia's proposed petition neither challenges any accounting rendered by a successor trustee nor raises any factual issue of frivolousness. Cynthia argues, and we agree, that the issue of whether provisions 2.6 and 5.16 of the Trust violate public policy is strictly a legal issue. In Ferber, supra, 66 Cal.App.4th at pages 251-252, the court explained: "If the beneficiary argues a proposed action would not violate the no contest clause because the clause, or a purportedly applicable provision of it, violates public policy, and that determination can be made as a matter of law without reference to any factual matters, the determination may be made in a [former] section 21320 proceeding. Because the determination only involves a matter of law, the proceedings would not be protracted and minimal violence would be done to the testator's intent to avoid litigation during probate. [¶] A contrary rule makes no contest clauses virtually impenetrable to public policy attacks, something we could not countenance. [Citations.] Beneficiaries must be free to raise public policy issues so the court may address them."
In its tentative ruling, the court found that the issue of whether Cathleen could be compelled to render accountings from 1994 was not proper for a safe harbor proceeding because the question of frivolousness could not be determined without first undertaking a review of facts. The finding does not appear in the court's formal order, and we disagree with it.
Cynthia, however, articulates no public policy favoring a beneficiary's action against a successor trustee to account for the previous trustee's administration of the trust. She cites no legal authority suggesting a successor trustee is guilty of wrongdoing by refusing to do so. Cynthia could have requested information from Sally during her administration of the Trust, and she is entitled to accountings from the successor trustees from the date of Sally's death. Cynthia has not been deprived of anything to which she is entitled, and Cathleen is not guilty of wrongdoing by not rendering accountings from 1994. Under these circumstances, the only public policy at issue is the one favoring no contest clauses to discourage litigation and honor the trustors' intent. (Ferber, supra, 66 Cal.App.4th at p. 254.)
DISPOSITION
The order is affirmed. Cathleen is entitled to costs on appeal.
I CONCUR: IRION, J.
McDonald, J., concurring in the result.
The sole issue in this appeal is whether Cynthia's proposed petition to the Probate Court for an order that Cathleen, the current trustee of the Marital Trust and Decedent's Trust, render an accounting of those two subtrusts for the period from March 13, 1994 (date they became irrevocable) through the present would, if filed, be a contest within the meaning of the no contest clause of the June 3, 1991, Living Trust.
The applicable no contest clause for the Marital Trust and Decedent's Trust is set forth in Paragraph 5.9 of the June 3, 1991, Living Trust and provides as follows:
"No-Contest Clause. In the event any beneficiary under this trust shall, singly or in conjunction with any other person or persons, contest in any court the validity of this trust, or contest either or both Trustors' Wills, or shall seek to obtain an adjudication in any proceeding, in any court, that this trust or any of its provisions, or that such Wills or any of their provisions, are void, or seek otherwise to void, nullify, or set aside this trust or any of its provisions, then the right of that person to take any interest under this Trust shall be determined as if that person had predeceased the execution of this Trust. Any then serving Trustee is hereby authorized to defend, at the expense of the Trust Estate, any contest or other attack of any nature on this trust or any of its provisions."
Cynthia is a beneficiary of both subtrusts and Cathleen has been the trustee of both since Sally's death on January 12, 2009, prior to which Sally was a trustee of both. Cynthia's proposed petition seeks an accounting of both subtrusts for the period of approximately 15 years beginning before Cathleen became the trustee as well as for the period during which she has been the trustee.
Cathleen contends Cynthia's petition is a contest within the meaning of the subtrusts' no contest clause because it seeks an adjudication that would set aside Paragraph 2.6 of the subtrusts. Paragraph 2.6 provides:
"Powers of Successor Trustees. All successors Trustees (except as otherwise provided) shall be vested with all the title, rights, powers, discretions, privileges, duties and obligations of the initial Trustees. A successor Trustee shall have no responsibility for the acts or omissions of any prior Trustee nor any duty to investigate the accounts of administration of any prior Trustee."
Under Paragraph 2.6, a successor Trustee is not responsible for acts of a prior trustee and has no duty to investigate the accounts of a prior trustee. Cathleen is a successor trustee and Cynthia's petition seeks a court order requiring Cathleen to render an accounting for a period during which there was a prior trustee.
I believe Cathleen would be unable to render an accounting for a period during which Sally was the trustee without investigating the accounts of Sally as the prior trustee. Therefore, I conclude that Cynthia's proposed petition seeks to set aside a provision of the trust and is a contest within the meaning of Paragraph 5.9 of the Trusts. It follows that I concur in the result of the majority opinion.
Because of my conclusion regarding Paragraph 2.6, it is unnecessary to consider the issue of whether Cynthia's petition also is a contest that seeks to void, nullify or set aside Paragraph 5.16 of the Marital Trust and Decedent's Trust.
I concur in the result.