Estate of Davies

In Estate of Davies (2005) 127 Cal.App.4th 1164, the trustor amended the trust twice after he was placed under a conservatorship. The second amendment provided that if one of the beneficiaries, Douglas, died within 120 days of the trustor, his share was to be divided equally among the remaining beneficiaries. After the trustor died, a dispute arose as to whether Douglas had lived the requisite 120 days. Douglas's widow brought an application under section 21320, seeking a declaration that Douglas had satisfied the 120-day provision. She also sought to "reform" the same provision on the grounds that: (1) the trust could not be amended after the first conservator was appointed; (2) Douglas had not received proper notice of a prior proceeding in which the probate court had confirmed the amendments in part. The no contest clause stated that it revoked the bequest to any beneficiary who "challenged any amendment to the trust ... or ... contested the capacity of the trustor to amend the trust." (Davies, at p. 1169.) The trial court granted the widow's application in full. The Court affirmed in part, agreeing that a determination of whether Douglas died within 120 days of the trustor was not a contest. That question, we said, "is an unequivocal acquiescence in the condition the trustor imposed on the bequest to Douglas and, as such, plainly not a challenge to the trust or either of its amendments." (Davies, supra, 127 Cal.App.4th at p. 1174.) And the Court reversed in part. With respect to the widow's remaining contentions, the Court explained: "One of the surviving beneficiaries contends the widow's proposed challenges: (1) to the notice given at the time the amendments were confirmed by the probate court; (2) to the validity of the amendments on the ground that the trustor was the subject of a conservatorship at the time the first amendment was made, are tantamount to indirect attacks on the amendments. "The widow's challenge to the validity of the order approving the first and second amendments on either of these grounds, if successful, would either; (1) unravel the trustor's estate plan completely by destroying the amendments in their entirety; (2) require a reformation of the second amendment to delete the 120 days survivorship clause which would, by definition, constitute a contest. ... A 'contest' is not confined to a direct attack on a will or trust instrument, but may include a separate legal proceeding that would thwart or nullify or unravel the testator's expressed wishes." (Davies, supra, 127 Cal.App.4th at p. 1175.)