Aviles v. Swearingen
B281420
| Cal. Ct. App. | Oct 23, 2017Background
- Margaret B. Chappell (settlor) executed a 2010 living trust and subsequently a First, Second, and Third Amendment before her death in January 2016.
- The Second Amendment contained a no‑contest (in terrorem) clause (Article 16) and directed distributions to certain relatives and José Aviles; the Third Amendment named Tracy Swearingen as sole remainder beneficiary and successor trustee.
- The Third Amendment incorporated by reference unchanged provisions of the Second Amendment but did not verbatim restate or expressly cite the Second Amendment’s no‑contest clause.
- Aviles petitioned to invalidate the Third Amendment alleging undue influence, financial abuse, and related misconduct by Swearingen; Swearingen counter‑petitioned to invoke the no‑contest clause to disinherit Aviles.
- The trial court denied Swearingen’s petition to enforce the no‑contest clause as to the Third Amendment (finding it was not a “protected instrument” under Probate Code §21310), and issued a pendente lite removal of Swearingen as trustee; the appellate court affirmed denial and dismissed the appeal from the trustee‑removal order as not final.
Issues
| Issue | Plaintiff's Argument (Aviles) | Defendant's Argument (Swearingen) | Held |
|---|---|---|---|
| Whether a later amendment that incorporates prior terms without expressly mentioning the no‑contest clause is a “protected instrument” under Prob. Code §21310(e) | The Third Amendment was a product of undue influence and thus not protected; the no‑contest clause in the Second Amendment does not bar his challenge | The Third Amendment incorporated the Second Amendment’s terms (including the no‑contest clause) and therefore is a protected instrument subject to the clause | The Third Amendment is not a protected instrument for §21310 because it neither contains the no‑contest clause nor expressly identifies it; the no‑contest clause did not apply |
| Whether §21310(e) is overridden by a settlor’s broad clause applying the no‑contest clause to “any and all amendments” | N/A (Aviles defends §21310’s application) | The settlor’s generic language should carry the no‑contest clause forward to the Third Amendment | Court held statutory scheme controls; a generic clause cannot override §21310(e)’s requirement of verbatim inclusion or express identification |
| Whether a pendente lite removal of trustee is immediately appealable | N/A | Swearingen sought review of the removal order | The removal order was pendente lite and without prejudice and is not a final appealable order; appeal dismissed |
| Standard for construing no‑contest clauses and applying them to alleged undue influence claims | No contest clauses must be narrowly construed and not enforced to bar challenges alleging undue influence | Attempt to enforce clause to bar contest of amendment | Court reiterated strict construction; clauses that would bar review of instruments alleged to be product of undue influence are disfavored and not extended beyond clear settlor intent |
Key Cases Cited
- Estate of Shellenbarger, 169 Cal.App.4th 894 (stating probate law must be strictly followed)
- Burch v. George, 7 Cal.4th 246 (interpretation of instrument is a legal question when extrinsic evidence is undisputed)
- Perrin v. Lee, 164 Cal.App.4th 1239 (no‑contest clauses narrowly construed; generic clauses may be insufficient)
- Townsend v. Townsend, 171 Cal.App.4th 389 (no‑contest clause scope limited even when amendments confirm prior terms)
- Donkin v. Donkin, 58 Cal.4th 412 (background on legislative intent for revised no‑contest statutes)
- Giammarrusco v. Simon, 171 Cal.App.4th 1586 (contrary instrument provisions inconsistent with revised no‑contest law are disregarded)
- Meyer v. Meyer, 162 Cal.App.4th 983 (no‑contest clauses disfavored where they produce forfeitures)
- Estate of Keuthan, 268 Cal.App.2d 177 (order removing trustee pendente lite is not final and not appealable)