Sachs v. SachsSachs v. Sachs
Avram M. Sachs appeals from the probate court‘s order granting a petition for instructions. (
FACTUAL AND PROCEDURAL HISTORY
David L. Sachs had two children, Benita and Avram.2 David established a trust in 1980 when Benita was 20 years old and Avram was 12. The trust provided for small distributions to other beneficiaries, but most of the trust corрus would be distributed to Benita and Avram equally on David‘s death. David was the original trustee.
In 1989 David began to keep track of money distributed to his children on papers he referred to as the “Permanent Record.” When a child asked for money, David would tell the child that the distribution would be reflected on the Permanent Record.
In June 2013 David began to experience cognitive problems due to a stroke. He hired Ronda Landrum as his bookkeeper to help manage his finances. At David‘s instruction Landrum continued to makе distributions to Avram and Benita. Landrum said David was adamant that she keep a record
In October 2013 David resigned as trustee and Benita became the successor trustee. Following her appointment, she found the Permanent Record among her father‘s papers. The record consists of a separate file for each child. The entries were made entirely in David‘s handwriting. The papers list the dates and the amоunts distributed beginning when each child attained age 30. The entries were not all made with the same pen, and the papers were of different types and ages.
In September 2014 Landrum advised the children that expenditures for David‘s residential care and paymеnts to the children were depleting the trust at a rapid rate. Avram continued to ask Benita for distributions from the trust. Benita‘s resistance caused friction between the siblings. In a series of emails Avram sought to assure Benita by repeatedly stating that the distributions would go on his record. One of the emails acknowledged that previous distributions made by David went on his record.
In October 2015 Benita learned that Avram was contending the Permanent Record did not exist or that he was not bound by it. By then, David‘s mental condition had deteriorated to such an extent that he could not be asked about his intention in creating the Permanent Record.
After David‘s death, Benita filed this petition for instructions to equalize the distribution of assets from the trust. She claimed that the disparity in lifetime distributions in favor of Avram should be deductеd from Avram‘s distributive share of the trust. The trial court granted the petition, and found that Avram received $451,027 more than Benita in lifetime distributions.
DISCUSSION
Subdivision (a)(2) has been satisfied
No special form or even the decedent‘s signature is necessary to satisfy the writing required by
Avram cites In re Estate of Vanderhurst (1915) 171 Cal. 553, for the proposition that unsigned ledgers alone are categorically insufficient to establish a donor‘s intent to treat lifetime transfers аs advancements. In Vanderhurst the testator died leaving several children. His will provided that sums paid to a son and his children as shown by testator‘s books of accounts shall be treated as advancements. The court held the trial court erred in treating the amounts pаid to his two daughters as shown in testator‘s books of accounts as advancements, based on the language of the will. Vanderhurst is simply a case involving the construction of a will. It does not stand for the proposition that unsigned ledgers alone are categoriсally insufficient to establish a donor‘s intent.
Avram argues the Permanent Record was not properly authenticated. There is no particular requirement for how a writing is authenticated. (
Parole evidence was properly admitted to interprеt the writing
Avram argues the trial court erred in considering parole evidence of David‘s intent. If parole evidence was necessary, the court did not err in considering it.
Avram refers us to what he considers the legislative history of
That the Legislature ignored the report and comment says nothing about legislative intent. No member of the Legislature is required to read a CLRC report, much less consider a private attorney‘s comment on it. Moreover, the report and comment recommended eliminating the requirement of a writing to prove an advancement. They say nothing about the use of parole evidence to explain the writing required by
Nor do the cases on which Avram relies convince us that parole evidence is not admissible to explain the writing. In Estate of Rawnsley (1949) 94 Cal.App.2d 384, 387, no writing was offered into evidence. The only evidence offered to show the testator intended an advancement was parole evidence. The court‘s statement that parole evidence is excluded must be read in that context. Rawnsley does not hold that parole evidence cannot be admitted to authenticate and explain a writing.
In Estate of Lackey (1971) 17 Cal.App.3d 247, a husband and wife made reciprocal wills. The wills provided for gifts to specified relatives upon the death of the survivor. Wife predeceased husband. After wife died, husband distributed checks to the relatives named in the wills in the amounts specified in the wills. On husband‘s death, his personal representative claimed the checks were advances of the amounts specified in his will. Most of the beneficiaries acknowledged in writing that the gifts were advances, but two of the beneficiaries did not. Husband‘s personal representative sought to introduce evidence of a letter from husband to the beneficiaries stating husband was paying the beneficiaries what wife‘s will “stated before it was probated.” (Id. at p. 252.) The Court of Appeal stated that the
Avram‘s reliance on Lackey is misplaced. Assuming, as the Court of Appeal did, that the letter was admissible for the truth of the matter, the letter stated husband was making payments under wife‘s will, not his own. Moreover, the court cited Rawnsley for the principle that parole evidence is inadmissible to determine the testator‘s intent to make advancements without noting that the only evidence offered in Rawnsley was parole and that there was no writing to interpret. The holding in Lackey violates
Subdivision (a)(3) has been satisfied
Avram contends the emails he sent to Benita do not constitute sufficient evidence to satisfy
Avram argues the statement in his emails that “it goes on my record” is too amorphous to constitute an acknowledgement. But Avram‘s argument is based on the clаim that parole evidence is inadmissible. We have rejected that argument.
The statement (“it goes on my record“) was made in the context of Avram‘s request for distributions from the trust. Given the context, the trial court could reasonably conclude the emails сonstitute a written acknowledgement that the distributions are advancements.
Avram argues that he never gave such an acknowledgement to David. But
The court properly found a dispаrity in payments between the parties
Avram contends Benita failed to demonstrate there is a disparity between amounts given to Avram and Benita. We again disagree.
Avram argues there is insufficient evidence that the Pеrmanent Record is “complete, accurate and/or corresponds to lifetime gifts that [David] made to his children.” But it does not purport to be a complete and accurate record of lifetime gifts. It only reflects those gifts David chose to be taken into account in adjusting the final trust distributions. In addition, Avram‘s emails to Benita confirmed that the distributions Benita made to Avram would go on his Permanent Record.
Avram did not challenge any specific distribution in the trial court, and he waited until his reply brief to challenge specific distributions on appeal. This presents a double bar to considering the issue. We will not consider points on appeal that were not presented to the trial court. (In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002 [failure to raise the point in the trial court waived right to challengе on appeal].) Moreover, we will not consider matters raised for the first time in the reply brief. (Scott v. CIBA Vision Corp. (1995) 38 Cal.App.4th 307, 322.)
DISPOSITION
The judgment (order granting petition for instructions) is affirmed. Benita shall recover her costs on appeal.
CERTIFIED FOR PUBLICATION.
TANGEMAN, J.
We concur:
GILBERT, P. J.
PERREN, J.