44 Cal.App.5th 59
Cal. Ct. App.2020Background
- Decedent David L. Sachs created a trust in 1980 dividing most corpus equally between his two children, Benita and Avram; David was original trustee.
- Beginning in 1989 (and more formally from 2013), David kept a handwritten “Permanent Record” listing periodic distributions to each child and told them distributions would be reflected there and deducted from inheritances.
- After David’s 2013 stroke, bookkeeper Ronda Landrum continued distributions at David’s direction and maintained electronic lists; David insisted records be kept.
- David resigned as trustee in 2013; Benita later found the handwritten Permanent Record among his papers; entries vary in pens and paper and appear contemporaneous.
- After David’s death, Benita (as successor trustee) petitioned for instructions to treat lifetime gifts to beneficiaries as advancements and equalize final trust distributions; the trial court granted the petition, finding Avram received $451,027 more in lifetime distributions.
Issues
| Issue | Plaintiff's Argument (Benita) | Defendant's Argument (Avram) | Held |
|---|---|---|---|
| Whether the Permanent Record satisfies the writing requirement of Prob. Code §21135(a)(2) | The handwritten Permanent Record is a contemporaneous writing of David showing intent to treat gifts as advancements | Ledgers/unsigned records cannot alone prove intent; Permanent Record unauthenticated/insufficient | Permanent Record is a sufficient contemporaneous writing under §21135(a)(2) and was properly authenticated by finder’s testimony |
| Whether extrinsic (parol) evidence may be used to interpret the writing | Parol evidence (bookkeeper testimony, David’s statements, emails) may explain David’s intent under §21102(c) | Parol evidence should be excluded; legislative history and older cases preclude explaining writings with parole evidence here | Parol/extrinsic evidence is admissible to interpret the writing; §21102(c) allows it and trial court did not err in considering such evidence |
| Whether Avram’s e-mails satisfy §21135(a)(3) (transferee acknowledgment in writing) | Avram’s emails saying distributions “go on my record” constitute written acknowledgments that distributions are advancements | Statements were too vague or not contemporaneous with transfers; they don’t bind him as acknowledgments | Emails, read in context, reasonably constitute written acknowledgments under §21135(a)(3) |
| Whether evidence supports the trial court’s finding of unequal lifetime distributions | Permanent Record plus corroborating testimony and Avram’s emails demonstrate disparity to be deducted | Record is incomplete/uncertain; Avram challenged completeness and accuracy of specific items (mostly raised late) | Substantial evidence supports the disparity finding; appellate review declines to reweigh, and late challenges were waived |
Key Cases Cited
- Estate of Nielsen, 169 Cal.App.2d 297 (1959) (writing for §21135(a)(2) need not be in any special form or contain decedent’s signature)
- In re Estate of Vanderhurst, 171 Cal. 553 (1915) (construing a will provision tying advances to testator’s books; not a categorical rule excluding ledgers generally)
- Ramos v. Westlake Services LLC, 242 Cal.App.4th 674 (2015) (trial court’s authentication/foundation findings reviewed for abuse of discretion)
- Estate of Karkeet, 56 Cal.2d 277 (1961) (extrinsic/parol evidence may be admissible to determine testator’s intent in interpreting instruments)
- Estate of Rawnsley, 94 Cal.App.2d 384 (1949) (parol evidence alone, without any writing, is insufficient to prove an advancement)
- Estate of Lackey, 17 Cal.App.3d 247 (1971) (disallowed certain oral evidence to prove advancements where the writing was ambiguous; court here rejects its broad application)