Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. BP104248, Aviva K. Bobb, Judge.
Sonnenschein Nath & Rosenthal, Alan T. Yoshitake and Patricia N. Chock for Defendant and Appellant.
Levy, Small & Lallas, Tom Lallas and Mark D. Hurwitz for Plaintiffs and Respondents.
TURNER, P. J.
I. INTRODUCTION
Evan Roklen, who is co-trustee of four irrevocable trusts, brings this consolidated appeal from four probate court orders granting declaratory petitions brought pursuant to Probate Code section 21320. The four irrevocable trusts are: the Melinda Goldrich Trust under the Goldrich Children’s Trust dated November 8, 1972, as modified by Court Order dated January 28, 2002 (“Melinda’s trust”); the Andrea Goldrich Cayton Trust under the Goldrich Children’s Trust dated November 8, 1972, as modified by Court Order dated January 28, 2002 (“Andrea’s trust”); the Garrett Raif Cayton Trust dated September 16, 1997 (“Garrett’s trust”); and the Lindsay Madison Cayton 1998 Trust dated June 26, 1998 (“Lindsay’s trust”). Jona and Doretta S. Goldrich created the four irrevocable trusts for: Melinda, their daughter; Andrea, their daughter; and Andrea’s two children, Garrett and Lindsay. Mr. Roklen claims that the proposed petitions to modify the trusts to remove him as co-trustee without cause and his consent violated the no-contest provisions of the trusts. As a result, Mr. Roklen argues the probate court erred in ruling that the beneficiaries’ petitions were protected by the “safe harbor” provisions of section 21320. We affirm the finding the petitions to modify the trusts to remove Mr. Roklen as the co-trustee did not violate the no-contest provisions of the specific trusts.
All further statutory references are to the Probate Code unless otherwise indicated. This case raises no issue concerning the amendments to sections 21310 through 21315 enacted into law on July 22, 2008. (Stats. 2008, ch. 174, §§ 1-3.) Those new provisions do to become operative until January 1, 2020. (Id. at § 3.)
The settlors and the beneficiaries are referred to by the first names for clarity purposes and not out of disrespect.
II. BACKGROUND
Jona and Doretta originally created the Goldrich Children’s Trust dated November 8, 1972. Melinda and Andrea are the beneficiaries of the Goldrich Children’s Trust dated November 8, 1972. When the trust was created, Emanual Hirth was appointed the trustee. Upon its creation, the Goldrich Children’s Trust was irrevocable but has been modified by probate court orders in case No. BP025197 dated November 19, 1993, November 8, 1994, January 2, 2001, and January 28, 2002. The January 28, 2002 modification order provides that the trust would be divided into two equal trusts for the benefit of Melinda and Andrea. The current co-trustees for Melinda’s trust are Mr. Roklen and Melinda. The current co-trustees for Andrea’s trust are Mr. Roklen and Andrea.
As originally created, Article X of the Goldrich Children’s Trust contained a no-contest provision which states: “INCONTESTABILITY: [¶] Any and every person who is or who may become a Beneficiary under this Trust who shall contest in any court any provision of this Instrument, or who shall not defend or assist in good faith in the defense of any and all such contests, shall not be entitled to any benefits under this Trust or any Trust created hereunder, and any and all benefits and portions of the income and/or corpus of this Trust, otherwise provided to be paid to such person, shall be paid, distributed and pass through as though such person had died without issue of his or her body before Trustor’s death and/or before entitled to receive any income or any portion of the corpus of this Trust. The Trustee herein named is specifically authorized to defend, at the expense of this Trust, any contest or attack of any nature upon this Trust or any ARTICLE or provision of this Trust.”
When Jona and Doretta created Garrett’s trust in 1997, they named Andrea, Mr. Roklen, and Steve Erdman as co-trustees. Mr. Erdman subsequently resigned as a trustee. The current trustees are Andrea and Mr. Roklen. Article IX of Garett’s trust contains a no contest clause which provides: “NO CONTEST, CONTESTANT DISINHERITED [¶] In the event any Beneficiary under this Trust, or any person claiming under any such Beneficiary, or any other person or entity, singly or in conjunction with any other person or persons, contests in any court or conspires with or voluntarily assists anyone attempting to contest the validity of this Trust, or seeks to obtain an adjudication in any proceeding in any court that this Trust or any of its provisions is void, or seeks otherwise to void, nullify, impair, or set aside this Trust or any of its provisions, then the right of that person to take any interest in this Trust shall be determined as it would have been determined had the person predeceased the execution of this Declaration without surviving issue, provided, however, that nothing in this paragraph shall apply to Settlors. The Trustee is hereby authorized to defend, at expense of the Trust Estate, any contest or other attack of any nature on this Trust or any of its provisions.”
Jona and Doretta created Lindsay’s trust on June 26, 1998. The original co-trustees of Lindsay’s trust were Andrea, Mr. Roklen, and Mr. Erdman. The current co-trustees are Andrea and Mr. Roklen. Article Nine, paragraph 10 of Lindsey’s trust provides: “No Contest. 10. If at any time any Beneficiary under this Trust shall, singly or in conjunction with any other person or persons, contest in any court the validity of this Trust, or any of our estate planning documents or any of the provisions of this Trust or any of our estate planning documents (‘our estate plan’), or shall seek to obtain an adjudication in any proceeding in any court that all or any part of either of our estate plans is void, or seek otherwise to void, nullify or set aside either of our estate plans, or any part of either of our estate plans, or file a claim against either of our estates or any trusts either of us may create during either of our lifetimes or upon either of our deaths, or seek to recover any claimed liability, debt, or damages from either of our estates or any trust either or both of us may create during either of our lifetimes or upon either of our deaths, (except as to any obligation either of us may owe which is represented by a signed writing or some other credible documentary evidence), then the right of that person to take any interest which is given to him or her by this Trust shall be determined as if he or she had predeceased the execution of this Trust without surviving descendants. The Trustee is hereby authorized to defend, at the expense of this Trust, any contest of or other attack of any nature on this Trust.”
On April 26, 2007, Melinda filed a declaratory relief petition under section 21320. On the same date, Andrea filed three such petitions on behalf of herself and her two children. The four April 26, 2007 petitions determine that the filing of the proposed petitions sought to modify the trusts to remove Mr. Roklen as co-trustee. The four proposed petitions sought to replace Mr. Roklen with Warren Breslow. On June 4, 2007, Melinda and Andrea filed supplements to the four declaratory relief petitions. They argued the declaratory relief petitions were confined to whether the modification requests would violate the no contest clauses of the four trusts.
On June 26, 2007, Mr. Roklen filed his responses to the section 21320 petitions to determine whether the proposed modification requests would violate the no contest clauses. Mr. Roklen’s primary contentions were: he had not agreed to resign as co-trustee; the proposed petitions were a disguised attempt to remove him without cause and his consent; and the filing and prosecution of the section 21320 petitions would violate the no-contest clause of each trust.
On July 6, 2007, Melinda and Andrea filed replies to Mr. Roklen’s response. Melinda and Andrea argued: the safe harbor provision allows a beneficiary of an irrevocable instrument to request a determination of whether a particular petition or motion would be a contest; the petitions at issue fall within the safe harbor provisions of section 21320; Mr. Roklen’s argument addresses the merits of the petitions and would bring the matter outside the safe harbor provision; the proposed petitions are not contests because the no contest clauses were narrowly drawn and do not preclude a beneficiary from requesting a modification of the trust to change trustees; and the petitions are based on section 15403 which allows all beneficiaries of an irrevocable trust to consent to compel the modification of the trust.
On September 19, 2007, the probate court entered orders granting the declaratory relief petitions. Notices of entry of orders were served on Mr. Roklen on September 21, 2007. Mr. Roklen filed timely notices of appeal on November 15, 2007. We consolidated the four matters on appeal by orders dated April 28, 2008 and May 1, 2008.
III. DISCUSSION
Section 21303 provides, “Except to the extent otherwise provided in this part, a no contest clause is enforceable against a beneficiary who brings a contest within the terms of the no contest clause.” A contest is defined in section 21300, subdivision (a) as “any action identified in a ‘no contest clause’ as a violation of the clause.” In Burch v. George (1994) 7 Cal.4th 246, 254-256, our Supreme Court set forth the standards for determining the issue of whether an action violates a no contest clause as follows: “The interpretation of a will or trust instrument presents a question of law unless interpretation turns on the credibility of extrinsic evidence or a conflict therein. [Citations.] . . . [¶] An in terrorem or no contest clause in a will or trust instrument creates a condition upon gifts and dispositions therein. [Citation.] In essence, a no contest clause conditions a beneficiary’s right to take the share provided to that beneficiary under such an instrument upon the beneficiary’s agreement to acquiesce to the terms of the instrument. [Citation.] [¶] No contest clauses are valid in California and are favored by the public policies of discouraging litigation and giving effect to the purposes expressed by the testator. [Citations.] Because a no contest clause results in a forfeiture, however, a court is required to strictly construe it and may not extend it beyond what was plainly the testator’s intent. [Citations.] [¶] ‘Whether there has been a “contest” within the meaning of a particular no-contest clause depends upon the circumstances of the particular case and the language used.’ [Citations.] ‘[T]he answer cannot be sought in a vacuum, but must be gleaned from a consideration of the purposes that the [testator] sought to attain by the provisions of [the] will.’ [Citation.] Therefore, even though a no contest clause is strictly construed to avoid forfeiture, it is testator’s intentions that control, and a court ‘must not rewrite the [testator’s] will in such a way as in immunize legal proceedings plainly intended to frustrate [the testator’s] unequivocally expressed intent from the reach of the no-contest clause.’ [Citation.]” (See Meyer v. Meyer (2008) 162 Cal.App.4th 983, 990-991.)
Section 21320 provides in part: “(a) If an instrument containing a no contest clause is or has become irrevocable, a beneficiary may apply to the court for a determination of whether a particular motion, petition, or other act by the beneficiary, . . . would be a contest within the terms of the no contest clause. [¶] (b) A no contest clause is not enforceable against a beneficiary to the extent an application under subdivision (a) by the beneficiary is limited to the procedure and purpose described in subdivision (a). [¶] (c) A determination under this section of whether a proposed motion, petition, or other act by the beneficiary violates a no contest clause may not be made if a determination of the merits of the motion, petition, or other act by the beneficiary is required. [¶] (d) A determination of whether Section 21306 or 21307 would apply in a particular case may not be made under this section.” Thus, section 21320 establishes a “safe harbor” for beneficiaries to seek a judicial determination of whether a proposed petition, motion or action would be a contest; but it is the only question to be resolved. (Estate of Rossi (2006) 138 Cal.App.4th 1325, 1328, fn. 1; Estate of Davies (2005) 127 Cal.App.4th 1164, 1173; Estate of Kaila (2001) 94 Cal.App.4th 1122, 1130.) Because the probate court did not rely on extrinsic evidence, its ruling on a section 21320 petition presents a question of law which we review de novo. (Burch v. George, supra, 7 Cal.4th at p. 254; Colburn v. Northern Trust Co. (2007) 151 Cal.App.4th 439, 447; McIndoe v. Olivos (2005) 132 Cal.App.4th 483, 487.)
In this case, Mr. Roklen contends that the proposed petitions “disingenuously requested a modification of the respective Trusts, under which among other things, Melinda would become Co-trustee of [her] trust with [Mr.] Breslow, and Andrea would be Co-trustee of [her] trust, Garrett’s Trust, and Lindsay’s Trust with [Mr.] Breslow” and he would be removed as co-trustee of the trusts without cause and his consent. Mr. Roklen asserts the filing and prosecution of the proposed petitions would violate the no contest clauses because, by seeking his removal as a co-trustee without his consent and cause, Melinda and Andrea were seeking to contest, invalidate, and set aside the material parts of the trusts. Mr. Roklen reasoned the trusts contained no provisions granting Melinda and Andrea the power to remove a trustee. Citing Hermanson v. Hermanson (2003) 108 Cal.App.4th 441, 445-446. Mr. Roklen also contends that the safe harbor provisions of section 21320 do not apply to the four trusts at issue because all they became irrevocable prior to January 1, 2001.
Melinda and Andrea counter that the proposed petitions do not violate any no-contest provision under section 15403, subdivision (b) which states in part, “[I]f all beneficiaries of an irrevocable trust consent, they may compel modification. . . of the trust upon petition to the court.” Melinda and Andrea also argue: the proposed modification petitions do not violate any of the no contest clauses; there was nothing to show that the trustors intended to deprive the beneficiaries of their trusts if they attempted to modify the trusts without challenging the distributions; Melinda and Andrea’s trusts have been modified several times including having Mr. Roklen named as a co-trustee; none of the trusts define the removal or replacement of a trustee to be a contest; to the extent that section 21305, subdivision (b)(7) applies only to trusts which became irrevocable on or after January 1, 2001, the common law provides that beneficiaries have the right to seek removal of a trustee without risking forfeiture under a no contest clause; and the consent of all the beneficiaries permits the modification petition. Melinda and Andrea further argued, even if all beneficiaries did not consent to a challenge, Estate of Ferber (1998) 66 Cal.App.4th 244, 255 permitted a beneficiary to make a non-frivolous attempt to remove an executor; and Mr. Roklen’s arguments were premature as he was requesting a determination on the merits. In reply, Mr. Roklen asserted the proposed petitions were frivolous on their faces and violations of the no contest provisions because there are no allegations of misfeasance.
As noted above, no contest clauses raise competing public policy concerns. No contest clauses are favored by the public policies of discouraging litigation and giving effect to the transferor’s intent; however, no contest clauses are disfavored by the policy against forfeiture. (Burch v. George, supra, 7 Cal.4th at p. 254; Meyer v. Meyer (2008) 162 Cal.app.4th 983, 991; McIndoe v. Olivos, supra, 132 Cal.App.4th at p. 487.) The policy against forfeitures requires a strict construction to limit such a clause to what was plainly the transferor’s intent. (Burch v. George, supra, 7 Cal.4th at p. 254; Meyer v. Meyer, supra, 162 Cal.App.4th at p. 991; McIndoe v. Olivos, supra, 132 Cal.App.4th at p. 487.) Section 23014 provides in that respect, “In determining the intent of the transferor, a no contest clause shall be strictly construed.” (See also Meyer v. Meyer, supra, 162 Cal.App.4th at p. 991; McIndoe v. Olivos, supra, 132 Cal.App.4th at p. 487.) Moreover, pursuant to section 21305, subdivisions (b)(7) and (d), a petition to remove a fiduciary is not a contest as a matter of public policy notwithstanding anything to the contrary in any document that became irrevocable on or after January 1, 2001. However, Mr. Roklen has correctly argued that the public policy embodied section 21305, subdivision (b)(7) does not apply to this case because all the trusts became irrevocable prior to January 1, 2001. (Hermanson v. Hermanson, supra, 108 Cal.App.4th at pp. 443, 446; see McKenzie v. Vanderpoel (2007) 151 Cal.App.4th 1442, 1452, fn 3.)
Nevertheless, inapplicability of section 21305 does not resolve the issue of whether the proposed petitions at issue in this case violate the no contest clauses because they seek to modify the trusts to remove Mr. Roklen as a co-trustee. Prior to the enactment of section 21305, it was established that public policy allowed a trust beneficiary to seek a judicial determination as to whether a trustee could be removed without a fear of forfeiture. The Court of Appeal explained the rule as follows: “There can be no question that there is a well-recognized public interest that estates of decedents be administered in such a manner that there can be no doubt with reference to the correctness of the proceedings and in a manner calculated to promote faith in the judicial system. Ordinarily trusts are made for the protection of the beneficiaries who may or may not be sufficiently informed and vigilant to manage large sums of money and conversely it would seem that trusts are not made for the benefit of trustees. Supervision of the trustee was contemplated in these trusts. Surely the testatrix and trustor did not mean thereby that to question the manner of administering the trust estate would constitute a forfeiture by a beneficiary. Surely the testatrix or trustor did not intend to inhibit the beneficiaries from seeking to have made proper accountings and distribution. She surely did not intend to participate in establishing a principle of law which would be dangerous in its effect and which would create a potential instrument of defense in the hands of a faithless or negligent fiduciary. [¶] Assuming that the beneficiaries did bring an action to oust the trustee, we think that in itself is not necessarily opposing, contesting, attacking or seeking to impair, invalidate or to set aside the will or any trust under the will. In other words it is difficult to see how under the circumstances any such action would or could thwart the will of the testatrix as expressed. No faulty execution of the will or any trust, no fraud or undue influence on the trustor is claimed or asserted. In any event it is fairly obvious that a beneficiary should not be terrorized into relinquishment of a valuable right by any threat of a forfeiture. On the face of the record it would seem that the beneficiaries have as an objective that the intentions of the trustor be fulfilled and that they get what was given to them-not to avoid the gift, but to protect it. We take a dim view of any proceeding which has the effect of deterring any interested party from resorting to the probate court in proper cases. It is most important to maintain access to the courts with as little obstruction as possible, and not to stultify the judicial system. We are persuaded that a proper and straight-forward question under the circumstances should not be prevented nor should access to the probate court be impeded by any threat of reprisal. A forfeiture deprives a person of what he previously possessed [citation] and the petitioners here apparently are simply asking the probate court to state or instruct whether a forfeiture of a valuable right will ensue if they bring an action in the Superior Court to oust the trustee. The beneficiary has a right to express a feeling of hostility toward and an opinion of the executor “in any way, at any place, at any time” he sees fit, without being vulnerable to a charge that he directly or indirectly aided in the contest of the will. [Citation.]” (In re Bullock’s Estate (1968) 264 Cal.App.2d 197, 201; see Estate of Ferber, supra, 66 Cal.App.4th at p. 253.)
In Estate of Ferber, supra, 66 Cal.App.4th at page 248, the no contest clause expressly provided that a beneficiary that “challenges the appointment of any person named as an executor” or unsuccessfully requests the removal of any person acting as an executor” would forfeit rights under the will. Ferber concluded that the no contest clause was invalid as to a sole beneficiary acting without the consent of other beneficiaries who sought the removal of an executor. (Id. at p. 255.) This is because to the extent that the no contest clause prohibited any attempts to remove an errant executor, the no contest clause violated public policy. (Ibid.) Thus, under standards articulated in Bullock and Ferber, it is clear, for public policy reasons, a beneficiary has the right to oust a trustee in some cases without the fear of a forfeiture. Moreover, for public policy reasons, this common law rule applied even if the instrument provided otherwise. (Estate of Ferber, supra, 66 Cal.App.4th at p. 255; see Tunstall v. Wells (2006) 144 Cal.App.4th 554, 561.)
In any event, an examination of the four trust documents does not support the conclusion that a petition to modify the trusts to remove Mr. Roklen would violate the terms of the no contest clauses. The no contest clauses in Melinda’s and Andrea’s trusts were contained in the original trust documents which were executed in 1972. The no contest clauses provide in part: “Any and every person who is or who may become a Beneficiary under this Trust who shall contest in any court any provision of this Instrument, or who shall not defend or assist in good faith in the defense of any and all such contests, shall not be entitled to any benefits under this Trust or any Trust created hereunder, and any and all benefits and portions of the income and/or corpus of this Trust. . . .” Mr. Roklen was not named as a trustee in those documents. Rather, Mr. Roklen was appointed as co-trustee pursuant to a January 28, 2002 court order issued in response to a petition to modify the trusts. Nothing in the original trust documents preclude a contest to remove Mr. Roklen as the trustee with or without cause.
However, Mr. Roklen was named as a co-trustee at the time the trusts were created for Garrett and Lindsay in 1997 and 1998 respectively. Garrett’s trust provides: “In the event any Beneficiary under this Trust, or any person claiming under any such Beneficiary, or any other person or entity, singly or in conjunction with any other person or persons, contests in any court or conspires with or voluntarily assists anyone attempting to contest the validity of this Trust, or seeks to obtain an adjudication in any proceeding in any court that this Trust or any of its provisions is void, or seeks otherwise to void, nullify, impair, or set aside this Trust or any of its provisions, then the right of that person to take any interest in this Trust shall be determined as it would have been determined had the person predeceased the execution of this Declaration without surviving issue. . . .” Lindsay’s trust states: “If at any time any Beneficiary under this Trust shall, singly or in conjunction with any other person or persons, contest in any court the validity of this Trust or any of our estate planning documents or any of the provisions of this Trust or any of our estate planning documents (‘our estate plan’), or shall seek to obtain an adjudication in any proceeding in any court that all or any part of either of our estate plans is void, or seek otherwise to void, nullify or set aside either of our estate plans, or any part of either of our estate plans, or file a claim against either of our estates or any trusts either of us may create during either of our lifetimes or upon either of our deaths, or seek to recover any claimed liability, debt, or damages from either of our estates or any trust either or both of us may create during either of our lifetimes or upon either of our deaths, (except as to any obligation either of us may owe which is represented by a signed writing or some other credible documentary evidence), then the right of that person to take any interest which is given to him or her by this Trust shall be determined as if he or she had predeceased the execution of this Trust without surviving descendants.” Neither Garrett’s nor Lindsay’s trusts specifically provide that an action to remove Mr. Roklen as a trustee is a contest. Furthermore, there is no provision requiring his consent to be removed before an action to oust him may be brought. Thus, there is no violation of the specific provisions of the trusts.
The real crux of Mr. Roklen’s appeal is that the proposed petitions are frivolous because they are not based on cause to have him remove. However, we agree with Melinda and Andrea that, insofar as the section 21320 petitions are concerned, the issue of the merits of the proposed petitions is premature. This is because Mr. Roklen’s claims there is no cause to remove him or the purported frivolity of the petitions goes to the merits of the arguments as to why he allegedly should be removed. A ruling on whether the beneficiary’s proposed petitions will be a contest may not involve a determination on the merits of the action. (§ 21320, subd. (c); (Estate of Ferber, supra, 66 Cal.App.4th at p. 251; Genger v. Delsol (1997) 56 Cal.App.4th 1410, 1418, 1430.) The issue of whether the proposed petitions will ultimately deemed to be meritless or frivolous must be resolved in the future. The only question to be resolved at this juncture was whether any of the no contest clauses precluded a petition to oust Mr. Roklen. We have concluded there were no violations of the no contests provisions. Accordingly, we affirm all of the orders under review.
IV. DISPOSITION
The orders appealed from are affirmed. Costs on appeal are imposed against Evan Roklen and in favor of: Andrea G. Cayton in her capacity as the co-trustee of the Garrett Raif Cayton 1997 trust dated September 16, 1997; Andrea G. Cayton in her capacity as co-trustee of the Lindsay Madison Cayton 1998 trust dated June 26, 1998; Andrea Goldrich Cayton as the beneficiary of the trust for her benefit under the Goldrich Children’s trust dated November 8, 1972, and Melinda as a beneficiary of the trust for the benefit of the Andrea Goldrich under the Goldrich Children’s Trust dated November 8, 1972.
I concur: ARMSTRONG, J.
MOSK, J., Concurring and Dissenting
The no contest clauses of each of the trusts appear broad enough to cover the removal of a trustee, for each includes as a violation of the clause the seeking of an adjudication to void, nullify or impair, or set aside any of the trust provisions, or a contest regarding any provision of the trust. Specification of a trustee is a provision of a trust. As provided by the court in Estate of Ferber (1998) 66 Cal.App.4th 244, 250, an action to remove an executor or trustee may be deemed to contravene the provisions of a no contest clause.
As Mr. Roklen was not named as a trustee in Melinda’s and Andrea’s trusts, seeking to remove him would not be a challenge to any express term in the trusts.
Mr. Roklen was, however, named as a cotrustee in the Garrett and Lindsay trusts. As to those trusts, a frivolous attempt at a judicial removal of a named trustee would, under Estate of Ferber, supra, 66 Cal.App.4th at page 254, violate the no contest clauses. Because the trusts were executed and became irrevocable before 2001, the safe harbor provisions of Probate Code section 21305, subdivision (b)(7) do not apply. (Prob. Code, § 21305, subd. (d); Hermanson v. Hermanson (2003) 108 Cal.App.4th 441, 445.) Thus, as the parties seem to acknowledge, common law governs.
The petitioners sought amendments to the trusts naming new trustees, thereby having the effect of removing Roklen as a trustee. No reason is given for this action. Under these circumstances, deferring to the future a determination as to whether the petitions are frivolous is, in this case, inconsistent with the right to a determination under Probate Code section 21320. The effort to remove the trustee for no reason—at least no given reason—would seem to be frivolous on its face. That the beneficiaries have a right to file a petition under Probate Code section 15403 does not mean that such a petition cannot constitute a violation of the no contest clause.
If petitioners proceed and later it is determined that their petitions are frivolous, then they would suffer the consequences of violating the no contest clauses. If we decide in petitioner’s declaratory relief petition that these petitions will violate the no contest clauses, then petitioners may decide not to file the petitions to avoid the risk of forfeiting rights because of the no contest clauses.
The majority affirms the trial court’s determinations that the petitions do not violate the no contest clauses, but then states that sometime in the future, if the petitions are deemed frivolous, then perhaps there would be a violation. These positions are difficult to reconcile.
I would reverse the trial court’s determination with respect to Garrett’s and Lindsay’s trusts and would affirm the trial court’s determination with respect to Melinda’s and Andrea’s trusts.