Johnson v. Kotyck

In Johnson v. Kotyck (1999) 76 Cal.App.4th 83, the beneficiary of a revocable living trust petitioned the court under section 17200 to order the trustee to prepare an accounting. The trustor, mother of both the petitioning beneficiary and the trustee, was alive but unable to care for herself. The court had appointed a professional conservator to manage her affairs and legal counsel to represent her in all conservatorship proceedings. The court found the beneficiary had no right to petition under Probate Code section 17200 because, although the trustor was incompetent, her conservator held the power to revoke. "Under the Probate Code, the legal rights of a conservatee -- including the right to revoke a trust -- pass to the conservator, under the close scrutiny of the superior court. The conservator may petition the court for an order 'Exercising the right of the conservatee (i) to revoke a revocable trust or (ii) to surrender the right to revoke a revocable trust . . . .' ( 2580, subd. (b)((11).)" (Johnson v. Kotyck, supra, 76 Cal.App.4th at p. 87.) The court's ability to order revocation is limited only if the trust "(A) evidences an intent to reserve the right of revocation or modification exclusively to the conservatee, (B) provides expressly that a conservator may not revoke or modify the trust, or (C) otherwise evidences an intent that would be inconsistent with authorizing or requiring the conservator to exercise the right to revoke or modify the trust." ( 2580, subd. (b)(11).) In Johnson, the trust document's revocation clause read: "'This declaration of trust, and the trusts evidenced thereby, may be revoked at any time by the Trustor, during the lifetime of the Trustor, by the Trustor delivering written notice of revocation to the Trustee.'" (Id. at pp. 85-86.) The court found there was "nothing in the Trust or its amendments which expressly or impliedly prevents the conservator from revoking the Trust or which reserves the right of revocation exclusively to the trustor." (Id. at p. 88.)