v. Toscano
Filed
5/6/13 Cory v. Toscano CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
FIFTH APPELLATE DISTRICT
ELAINE CORY,
Plaintiff and Appellant,
v.
COLLEEN M.
TOSCANO et al.,
Defendants and Respondents.
F062310
(Super. Ct. No. 07CEPR00246)
APPEAL
from a judgment of the Superior Court of
County. Hilary A. Chittick,
Judge.
Curry
and Curry and Thomas M. Curry for Plaintiff and Appellant.
Gilmore,
Wood, Vinnard & Magness and David M. Gilmore for Defendant and Respondent
Colleen Toscano.
Pape
& Shewan and Jeffrey B. Pape for Defendant and Respondent Bruce Bickel.
-ooOoo-
Appellant, Elaine Cory, and
respondent, Colleen M. Toscano, are beneficiaries of the Louie Friguglietti
Trust (Trust). Louie Friguglietti
(Trustor) amended the Trust several times, including handwritten interlineations
that reduced Cory’s share of an asset from 100 percent to 25 percent. Following the Trustor’s death, James Wagner,
the trustee of the Trust, sent the notice required by Probate Code
Trust beneficiary. Cory was also provided
with a copy of the Trust that included the handwritten modification.
Cory
filed a petition for construction of the Trust challenging the handwritten
interlineations on the grounds that the amendment was invalid and that the
Trustor was subjected to undue influence.
The trial court ruled that Cory’s petition was barred by the section
16061.8 statute of limitations. The
trial court further found that the handwritten interlineations constituted a
valid amendment to the Trust and that this amendment was not a product of undue
influence.
Cory
contends the amendment is patently void on its face and therefore its validity
can be attacked at any time. Cory
further argues that the statute of
limitations is not a bar to her action.
According to Cory, the statute of limitations should have been equitably
tolled because the hand markings were not described in the notice as an
amendment and Toscano should be equitably estopped from relying on the statute
of limitations because she and Wagner concealed the evidence of undue
influence. Finally, Cory asserts that
the evidence does not support the trial court’s finding that the hand markings
were not procured by undue influence.
The
trial court correctly denied Cory’s petition.
The petition is barred by the statute of limitations. Further, Toscano is not equitably estopped
from asserting the statute of limitations.
Accordingly, the judgment will be affirmed.
BACKGROUND
The
Trustor established the Trust on September 30, 2005, as a revocable living
trust.
Article II of
the Trust provides the Trust is to terminate and be distributed on the
Trustor’s death. With respect to Cory,
the typewritten Trust provides “‘(a) To
ELAINE CORY, the balance remaining from the sale of my real property in Los
Banos, APN 081-110-007, consisting of approximately 28.5 acres on Overland
Road .…’†(Cory v. Toscano (2009) 174 Cal.App.4th 1039, 1042 (
The
Trustor executed two separate amendments to the Trust, one on October 7, 2005,
and one on October 11, 2005. Neither of
these amendments concerns the distribution to Cory. However, article II, paragraph (a), of the
Trust was modified by handwritten interlineations. “There is a caret between ‘To ELAINE CORY’
and ‘the balance remaining from the sale .…’ Above the caret is ‘25% of’ and ‘10.11.05’â€
and written over the number “‘25’†are the initials “‘LF.’†(
1042-1043.)
The
Trustor died on May 11, 2006.
On
June 13, 2006, Wagner sent notice under section 16061.7 to the beneficiaries,
including Cory. This section requires
that a notice be sent when a revocable trust becomes irrevocable. As required, this notice included the warning
that a beneficiary “‘may not bring an action to contest the trust more than 120
days from the date this notification by the trustee is served .…’†(§ 16061.7, subd. (h).) Wagner also provided Cory with a copy of the
Trust that included the handwritten interlineations.
On June 30,
2006, Wagner sent a letter to Cory opining that Cory would receive “‘25% of
Louie’s interest in the 28.5 acre parcel located on Overland Road’†under
article II of the Trust.
On October 30,
2007, over a year after receiving the section 16061.7 notice, Cory filed an
application under former section 21320
determine whether a proposed petition challenging the handwritten amendment
would be a contest under the Trust’s no contest clause. This court affirmed the trial court’s finding
that the proposed petition would not be a contest because the handwritten
notations qualified as an instrument other than the instrument containing the
no contest clause. (Cory, supra, 174 Cal.App.4th at p. 1046.)
Cory filed the
underlying petition to construe the meaning of the Trust terms on October 5,
2009. Following a trial, the trial court
ruled that Cory’s petition was barred by the statute of limitations set forth
in section 16061.8. The court concluded
that Cory was required to file her petition no later than October 10, 2006. The court further found that: Cory failed to establish an equitable
estoppel; the handwritten interlineations initialed and dated by the Trustor
constituted a valid amendment to the Trust; and this amendment was not a
product of undue influence.
DISCUSSION
To
determine whether the petition is barred by the statement of limitations, we
must interpret the trust amendment.
Since no relevant conflicting evidence was received, we are not bound by
the trial court’s ruling. Rather, our
review is independent. (
(1980) 101 Cal.App.3d 760, 769-770.)
untimely.
Section
16061.8 provides that no person who has received notice under section 16061.7
“may bring an action to contest the trust more than 120 days from the date the
notification by the trustee is served upon him or her, or 60 days from the day
on which a copy of the terms of the trust is mailed or personally delivered to
him or her during that 120-day period, whichever is later.â€
Cory was served
with the section 16061.7 notice on June 13, 2006, and was provided with a copy
of the Trust. Accordingly, Cory had
until October 10, 2006, i.e., 120 days later, to file an action to contest the
Trust.
Although Cory
couched her petition filed October 5, 2009, as seeking an interpretation of the
Trust, that was not the purpose behind the petition. (Cory,
supra, 174 Cal.App.4th at p. 1044.)
Rather, the petition sought to invalidate the handwritten modification
to the Trust and reinstate the original Trust language. Cory asserted that the alleged amendment was
not duly executed. Thus Cory’s petition
constituted an action to contest the Trust.
(§ 21310, subd. (b); Estate
of Stoker (2011) 193 Cal.App.4th 236, 241.)
However, Cory did
not initiate her contest until October 30, 2007, when she filed the former
section 21320 application to obtain an advance ruling on whether her proposed
petition would violate the Trust’s no contest clause. Thus, Cory’s action was filed over one year too
late. Therefore Cory’s petition is
barred by the statute of limitations.
(§ 16061.8.)
Relying on
178 (Estate of Caruch), Cory argues
that the handwritten amendment was void on its face and therefore this amendment
may be collaterally attacked at any time.
According to Cory, the handwritten interlineations are void on their
face because, having been later made, they are unsigned. In other words, Cory argues that the initials
“L.F.†are not a valid signature.
In
there is a very limited exception to the rule that, in the absence of a timely
appeal, an order admitting a will to probate is conclusive. If the order admitting the will to probate is
void on its face, it may be collaterally attacked at any time. (Estate
of Caruch, supra, 139 Cal.App.2d at pp. 187-188.) For example, if a will is unsigned and
admitted to probate, it may later be collaterally attacked. “The reason for this rule is that the probate
court, although having jurisdiction over the estate and the parties, has no
jurisdiction to admit to probate a will that shows on its face that it does not
comply with statutory requirements.†(
Here, the
applicability of Estate of Caruch is
questionable. This is a trust
proceeding, not a probate. In any event,
contrary to Cory’s position, the handwritten amendment is not void on its
face. In executing a written document,
no particular form of the signature is required for the signature to be
valid. “The essential element is an
intent to appropriate the name as a signature; it need not be the full
handwritten name to qualify.†(
1161, 1179.) For example, case law has
held that the use of initials as a signature can be an effective signing of a
will. (Estate of Morris (1969) 268 Cal.App.2d 638, 640.) Similarly, the name on a holographic will
does not need to be a legal signature to validly authenticate the will. (Estate
of Williams (2007) 155 Cal.App.4th 197, 211.) Further, the use of initials can be a valid
signature for the creation of a trust. (
620, 633.) Accordingly, the Trustor’s
use of his initials as his signature does not cause the amendment to be void on
its face.
Cory further
argues that the amendment is void because it was not delivered to the trustee
by certified mail in accordance with the Trust’s requirements. However, this alleged defect does not appear
on the face of the amendment. Thus, even
if we were to apply the Estate of Caruch statute
of limitations exception to a trust, we would not apply it here.
Cory also relies
on Estate of Neubauer (1958) 49
Cal.2d 740 (Estate of Neubauer). In that case, the testator put a line through
a gift and signed the change but did not date it. Thus, the change did not qualify as a
holographic codicil. Further, the order
admitting the will to probate did not list this change as a codicil. The court held that, after the time to appeal
the order for probate had elapsed, the question of what constituted the will
could not be challenged. With respect to
the beneficiary of the gift that had been lined out, the court noted that, from
a practical point of view, there was no reason for that beneficiary to
institute any kind of contest concerning the existence or validity of the
bequest to it. (Id. at pp. 746-747.)
Cory attempts to
apply Estate of Neubauer here. Cory asserts that, because Wagner’s statutory
notification only referred to the two separate written amendments and made no
mention of the handwritten interlineations as an amendment, Cory had no reason
to institute any kind of contest. In
other words, the statute of limitations should have been equitably tolled,
i.e., the running of the statute should have been suspended, because there was
no reason for Cory to believe that those handwritten interlineations were any
part of the Trust.
Cory’s reliance
is misplaced. Again, unlike here,
proceeding. Further, in this case there
was no prior court order establishing what constituted the Trust. Moreover, a copy of the Trust with the
handwritten interlineations was delivered to Cory putting her on notice of the
changes and, shortly thereafter, Wagner sent Cory a letter explaining that she would
receive 25 percent of the Trustor’s interest in the subject parcel. Thus, Cory had reason before the statute of
limitations expired to institute a contest challenging the handwritten
amendment to the Trust.
In sum, Cory’s
petition was an action to contest the Trust and was commenced more than 120
days from the date Cory was notified that the Trust had become irrevocable
because of the Trustor’s death.
Therefore, the petition is barred by the statute of limitations. (§ 16061.8.)
an equitable estoppel.
Cory asserts
that, because Toscano and Wagner withheld facts from her on the circumstances
surrounding the handwritten interlineations, Toscano is equitably estopped from
asserting the statute of limitations.
According to Cory, Wagner had a duty to disclose to Cory that Toscano
was on the phone with the Trustor when the interlineations were made.
Equitable
estoppel comes into play only after the limitations period has run. It addresses the circumstances in which a
defendant will be estopped from asserting the statute of limitations as a
defense to an admittedly untimely action because that defendant’s conduct has
induced another into forbearing suit within the applicable limitations period. (Lantzy
v. Centex Homes (2003) 31 Cal.4th 363, 383.) However, the plaintiff’s reliance must be
reasonable and the plaintiff must proceed diligently once the truth is
discovered. (Id. at p. 384.) Mere silence
will not create an estoppel unless there is a duty to speak. (Spray,
Gould & Bowers v. Associated Internat. Ins. Co. (1999) 71 Cal.App.4th
1260, 1268.)
Here,
as found by the trial court, Cory has not demonstrated that Wagner’s failure to
inform her of the circumstances that existed when the handwritten
interlineations were made induced her to delay filing the action to contest the
Trust. Cory received a copy of the Trust
with the modifications and testified that, at that time, she formed an opinion
that the “L.F.†initials did not look like the Trustor’s handwriting. Shortly thereafter, Wagner informed Cory by
letter that she would receive 25 percent of the disputed asset. Moreover, Cory sought out legal counsel well
before the running of the statute of limitations.
Cory’s original
petition, proposed over a year after the statute of limitations expired,
alleged only that the amendment was void due to its not being validly
executed. Cory did not seek to amend the
petition to allege undue influence until March 22, 2010. Thus, Cory has not shown that Wagner or
Toscano prevented her from timely filing her petition or that she reasonably
relied on the alleged nondisclosure.
Accordingly, Cory has failed to establish an equitable estoppel.
In light of our
conclusion that Cory’s petition was barred by the statute of limitations, we
need not consider whether substantial evidence supports the trial court’s
findings on the merits of Cory’s petition.
DISPOSITION
The judgment is
affirmed. Costs on appeal are awarded to
respondents.
_____________________
LEVY,
Acting P.J.
WE CONCUR:
_____________________
CORNELL, J.
_____________________
GOMES, J.
name="_ftn1" title="">[1] All further statutory references are to the Probate Code.
name="_ftn2" title="">[2] Sections 21320 through 21322 were repealed effective
January 1, 2010.
