52 Cal.App.5th 997
Cal. Ct. App.2020Background
- Decedent Hugh O’Brian executed a revocable trust (1992, amended 2009 & 2011) that: declared “I have no children,” specifically named and disinherited certain persons, and contained broad clauses excluding “any other person who claims to be a descendant or heir” and “any of my heirs who may be living at the date of my death.”
- O’Brian died in 2016; trustee and surviving spouse is Virginia O’Brian. Residue goes to charity on trustee’s death.
- Kimberly Rallo and Adam Ross (each claiming to be a biological child born before the Trust) filed probate petitions under Cal. Prob. Code § 21622 seeking an intestate share as unintentionally omitted children.
- Trustee demurred to the petitions asserting failure to state a claim (and relying on the Trust’s disinheritance language); the trial court sustained the demurrers without leave to amend and entered judgments of dismissal.
- On appeal, appellants argued § 21622 protects unknown living children and that a general disinheritance clause cannot defeat such a claim; the court reviewed whether appellants pleaded facts showing the sole reason for omission was decedent’s unawareness of their births.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a general disinheritance clause in a will/trust can preclude recovery under § 21622 for a living child unknown at execution | Rallo/Ross: § 21622 protects unknown living children and § 21621 (which validates general disinheritance clauses) applies only to after-born children under § 21620, so general clauses shouldn’t defeat § 21622 claims | Trustee: Trust’s broad disinheritance language expresses decedent’s intent to exclude unknown heirs; that intent may and should be considered when evaluating a § 21622 claim | Held: A general disinheritance clause may be considered; § 21622 does not by its silence bar application of such a clause when it demonstrates the decedent’s intent to exclude unknown heirs |
| What must an omitted-child petitioner plead to state a claim under § 21622 | Rallo/Ross: Allegations that the decedent was unaware of their births (and thus mistakenly omitted them) suffice; factual detail limited by their lack of knowledge | Trustee: Petitioners must plead facts showing the decedent’s unawareness was the sole reason for omission (i.e., plead facts on decedent’s intent) | Held: § 21622 requires pleading facts showing (1) decedent was unaware (or believed child dead) and (2) that was the sole reason for omission; mere conclusory assertions are insufficient |
| Whether the trial court properly took judicial notice of the Trust and could decide the demurrers in probate proceedings | Plaintiffs: Taking judicial notice and interpreting Trust terms resolved factual disputes prematurely | Trustee: Trust was referred to in petitions (attached or described) and is judicially noticeable; demurrer is a proper objection in probate | Held: Judicial notice of the authentic Trust was proper on demurrer; courts may consider operative testamentary documents referenced in petitions |
| Whether appellants should have been granted further leave to amend | Plaintiffs: Lack of access to facts about decedent’s state of mind justifies more amendment opportunity; DNA (for Rallo) might cure defects | Trustee: Pleadings cannot plausibly be amended to overcome the Trust’s clear disinheritance language; appellants already had leave and failed to cure | Held: No reasonable possibility amendment could cure defects given the Trust’s terms and allegations; trial court did not abuse discretion in denying further leave |
Key Cases Cited
- Estate of Della Sala, 73 Cal.App.4th 463 (court interpreted omitted-child statutes and legislative history)
- Estate of Mowry, 107 Cal.App.4th 338 (omitted-child burden to prove testator’s intent when child was living at execution)
- Katleman v. Estate of Katleman, 13 Cal.App.4th 51 (disinheritance language can bar pretermission claims when sufficiently broad)
- Blank v. Kirwan, 39 Cal.3d 311 (standard of review on demurrer and pleading rules)
- Shoemaker v. Myers, 52 Cal.3d 1 (prior allegations in pleadings may be considered against later inconsistent amendments)
- Scott v. JPMorgan Chase Bank, N.A., 214 Cal.App.4th 743 (judicial notice may dispose of pleadings on demurrer when documents are foundational)