Filed 7/2/26 Dilonell v. Ammons CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
FRIDA DILONELL, as Trustee, B330813; B334468
etc., (Los Angeles County Super.
Ct. No. 18STPB05025)
Plaintiff, Cross-defendant
and Respondent,
v.
JOHN SAMUEL AMMONS,
Defendant, Cross-
complainant, and
Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Gus T. May, Judge. Affirmed.
Decker Law, James Decker and Griffin Schindler for
Defendant, Cross-complainant and Appellant.
Oldman, Apanius, Gordon & Rosenblatt, Mary-Felicia
Apanius, Marshal A. Oldman and Susan B. Rosenblat for
Plaintiff, Cross-defendant and Respondent.
______________________________
Alice Jackson died in February 2018 when she was almost
77 years old. Frida Dilonell, a late-in-life acquaintance of
Jackson’s, filed a petition to determine ownership of property
included in a handwritten September 2017 declaration of trust
bearing Jackson’s signature, which named Dilonell as the
primary beneficiary of nearly all of Jackson’s assets. In response,
John Samuel Ammons filed a petition to set aside the trust,
arguing Jackson lacked testamentary capacity to execute it and
had signed a subsequent typed trust that left her assets to
Ammons.
Following a bench trial, the probate court found the
September 2017 trust was valid and that Jackson had
testamentary capacity to execute it. The court also found
Jackson did not create a superseding typed trust. On appeal,
Ammons challenges the court’s findings and contends judicial
estoppel bars Dilonell from asserting Jackson’s mental
competency in this action because she took a contrary position in
a related action. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Petitions, the 2015 Will, and the September 2017 Trust
On May 2, 2018 Ammons filed a petition to probate the will
of Alice Jackson in a related action. A copy of the handwritten
will, dated August 22, 2015, named Ammons as executor of
2
Jackson’s estate and left all of her “real and personal property” to
Ammons, Jorge Bennett, and Nery Murcia in equal shares. The
2015 will listed Jackson’s assets, including real property on
Walnut Street in Inglewood (the Walnut property), five bank
accounts, music royalties, and the contents of six storage units.
On May 29, 2018 Dilonell, as the successor trustee of the
Alice M. Jackson Living Trust, initiated this action by filing a
petition to determine trust ownership of property pursuant to
Probate Code section 17200, subdivision (b),1 and Estate of
Heggstad (1993) 16 Cal.App.4th 943 (Heggstad).2 Dilonell
attached to her petition a copy of a fillable form for a declaration
of revocable trust dated September 25, 2017 (September 2017
trust) that had been filled out by hand and bears the signature of
“Alice M. Jackson.” The trust named Jackson as trustee and
declared that her interest in the assets listed in the attached
schedule A was held in the trust. Schedule A listed nearly all of
the assets in the 2015 will, including the Walnut property,
checking accounts held in Chase Bank and U.S. Bank, the music
royalties, and the six storage units. The trust further named
Dilonell as the primary beneficiary of “my estate, [the] Walnut
[property], [and] 1/2 interest in music royalties.” The petition
1 Further statutory references are to the Probate Code.
2 A “Heggstad petition” may be filed to confirm that specified
property belongs to a trust and is not part of a decedent’s probate
estate. (See Heggstad, supra, 16 Cal.App.4th at p. 950 [“a
written declaration of trust by the owner of real property, in
which he names himself trustee, is sufficient to create a trust in
that property, and . . . the law does not require a separate deed
transferring the property to the trust”].)
3
requested an order determining the assets listed in the schedule
A were assets of the trust.
On August 6, 2018 Ammons filed a petition to set aside the
September 2017 trust, attaching the 2015 will. He argued the
trust was an invalid forgery; it was obtained through fraud,
duress, or undue influence; there was insufficient evidence of
Jackson’s intent to transfer her assets to the trust; and Jackson
lacked testamentary capacity.
B. The Evidence at Trial3
The probate court conducted a 10-day bench trial in March
and April 2023. Both Ammons and Dilonell called witnesses who
testified regarding the circumstances surrounding the creation of
the September 2017 trust and Jackson’s conduct and mental
faculties around that time.
1. Ammons’s relationship with Jackson and Jackson’s
first stroke
Ammons testified he met Jackson around 1991 (when he
was 30 years old and she was about 50 years old), and he worked
for her in Los Angeles for some time. At some point, Ammons left
Los Angeles, but he reestablished his relationship with Jackson
in 2012 after returning and becoming her neighbor (when
Jackson was about 71 years old). Jackson provided and cared for
3 We rely on the amended settled statement for the trial
testimony and evidence admitted at trial on seven of the 10 trial
dates. The probate court approved the settled statement
proposed by Ammons, after considering Dilonell’s requested
changes. There is a reporter’s transcript for March 8 and 10 and
April 11, 2023.
4
Ammons by arranging food delivery for him, booking his
appointments, ensuring he took his medication, and sometimes
paying his rent.
In May 2015 Jackson suffered her first stroke. Ammons
testified he found Jackson on the ground and helped her, and
Jackson was “grateful for [him] saving her life.” Ammons
testified Jackson told him multiple times she had provided for
him in her will, including on February 24, 2018, the day she died.
At trial, Ammons called four witnesses who attested to
Ammons and Jackson’s close relationship, including Murcia (who
was named in the 2015 will). The witnesses met Jackson at some
point between 2011 and 2015 and visited her periodically.
Ammons was present at all but one of these visits. Two of the
witnesses heard Jackson say that she would make Ammons a
“wealthy man,” and one witness heard her say she was leaving
Ammons a portion of her estate.
2. Jackson’s second stroke and admission to a
convalescent facility
In September 2015 Jackson was admitted to a convalescent
facility after she suffered a second stroke. Dr. Robert Tracy,
Jackson’s primary physician at the facility who saw her monthly
from the time of her admission to her death, testified the stroke
“did not leave [Jackson] with cognitive deficits; she was fully
competent at all times right up to her death.” Dr. Tracy further
testified that if Jackson had any cognitive impairments or
difficulties, he would have sent her to a nearby sister facility that
handled patients with those issues, but he never considered doing
so.
5
3. The attempted sale of the Walnut property and
Dilonell’s relationship with Jackson
Jackson co-owned the Walnut property with Suzanne
Chandler, and in May 2016 they decided to list the property for
sale. Dilonell submitted an offer for the property, then later
accepted a counter-offer for the listing price. The property went
into escrow, but escrow did not close because Dilonell refused to
pay an additional $100,000 that Chandler demanded for the sale.
Dilonell testified that in mid-to-late 2016, at Jackson’s
request, the two met at the convalescent facility. Jackson asked
Dilonell not to withdraw her offer because the property might not
otherwise sell, and instead Dilonell should “pursue . . . Chandler”
to enforce the sales agreement. Jackson appeared “very sharp” at
the meeting. Following the meeting, Dilonell and Jackson
became close friends. Dilonell visited Jackson a few times a
week. Jackson shared stories of her life and discussed a variety
of issues, including her estrangement from her daughter and
sister.
According to Dilonell, Jackson told her she had stopped
receiving rent proceeds from the Walnut property, and Chandler
had unilaterally fired the Walnut property’s manager and
represented to the tenants that Chandler was the sole owner of
the property. Jackson asked Dilonell if she knew a real estate
attorney, and Dilonell recommended Peter Gordon & Associates
(the Gordon firm).
4. The Walnut property action
Andrew Schoettle, an attorney at the Gordon firm, testified
the firm began representing Jackson in June 2017. Schoettle
drafted and sent to Jackson a civil complaint to file against
6
Chandler and the Walnut property’s new property management
company (the Walnut property complaint), along with a
verification for Jackson to sign.
The complaint alleged a cause of action for quiet title with
respect to Jackson’s portion of the Walnut property and
12 related causes of action. In a cause of action for financial elder
abuse, the complaint alleged Jackson was “elderly and limited in
function, within the meaning of Probate Code § 811, and was
substantially unable (a) to manage [her] financial resources or
(b) to resist fraud or undue influence.” Further, the alleged abuse
occurred “due to the inability of the elderly Jackson to take action
to remedy and recoup her damages and losses.” A cause of action
for intentional infliction of emotional distress alleged Jackson
“suffer[ed] severe emotional distress” and had been “damaged
and harmed . . . mentally.” The complaint included a verification
for the first cause of action for quiet title.
Schoettle testified he and Jackson typically corresponded
by phone or handwritten letter, and that they exchanged
documents by mail, by messenger (including Dilonell), or when he
visited the convalescent facility. Schoettle testified he never had
any questions about Jackson’s capacity from when they met in
2017 until her death, and “she always appeared sharp, smart,
and tough.”
7
5. A librarian provides Jackson information on living
trusts and a fillable trust form
Chandra Jackson,4 a librarian for the public library,
testified that in early September 2017 she received a call from
Jackson requesting information on living trusts. Chandra
delivered forms and other pages copied from a book on living
trusts to Jackson’s convalescent facility. Chandra first met
Jackson in November 2017, when Chandra visited Jackson’s
facility again to drop off the book on living trusts. The book
contained a blank version of a fillable form matching the one
used to create the September 2017 trust. Jackson told Chandra
that “she was going to get her affairs in order.” Chandra testified
that Jackson appeared “fantastic,” and the two talked for 30
minutes to an hour. Chandra saw Jackson two to four weeks
later. At that time, Jackson “appeared wheelchair-bound” but
“looked well,” and the two talked for 30 to 40 minutes. Chandra
“didn’t notice anything debilitating about [Jackson]. . . . [S]he
didn’t have trouble speaking or anything like that.” Based on
their multiple interactions, Chandra believed Jackson was
“mentally stable.”
6. The September 2017 trust
Schoettle first learned about the September 2017 trust
when Jackson sent it to him along with the Walnut property
complaint (with edits) and a signed verification. Schoettle
confirmed that the exhibit admitted at trial was the trust
4 We refer to Chandra Jackson by her first name to avoid
confusion; she is not related to Alice Jackson.
8
document Jackson sent to him.5 He also confirmed the trust
document bore Jackson’s signature and schedule A of the trust
(the list of assets) was in Jackson’s handwriting. He was familiar
with her handwriting from the letters she had sent him. Jackson
and Schoettle “had at least one conversation with Jackson about
the trust . . . because she had not provided any contact
information for any of the beneficiaries.” At Jackson’s request,
Schoettle added the trust as a plaintiff in the Walnut property
action; the action was filed on behalf of Jackson as an individual
and as the trustee of her living trust. Schoettle filed the action
on September 28.
Dilonell testified that at some point between September
and November 2017, Jackson gave her a sealed manila envelope
with Jackson’s name or initials on it, and Jackson told Dilonell
the envelope contained her “wishes.” Dilonell did not know what
was in the envelope, but she felt uncomfortable and did not open
it. She gave the envelope to the Gordon firm for safekeeping
within a week of receiving it. In early 2018 Dilonell and
Schoettle retrieved two or three boxes of documents from the
convalescent facility and took them to the Gordon firm’s office;
the documents were already boxed up when he arrived to pick
them up.
Handwriting expert James Black testified for Ammons
regarding the signatures on the September 2017 trust. He had
been given numerous exemplars of Jackson’s writings and
signatures. He opined the signatures on pages 5 and 9 of the
5 The original version of the September 2017 trust was not
produced at trial.
9
trust were cut and pasted, as shown by a “‘line fragment”” on the
copy he reviewed. However, the other instances of Jackson’s
name or signature on the document were consistent with her
handwriting and appeared not to be cut and pasted. Black
reviewed only a fourth or fifth generation copy of the trust, and
he admitted the line fragment could have been the result of
numerous reproductions. He also acknowledged that he relied on
a different version of the fillable trust form than the one admitted
at trial in determining that Jackson’s signature was cut and
pasted.
7. The agreement for Dilonell to purchase Jackson’s
portion of the Walnut property
In January or February 2018, Jackson and Dilonell entered
into an agreement for Dilonell to purchase Jackson’s share of the
Walnut property. Jackson asked the Gordon firm to serve as the
escrow company for the sale.
Schoettle testified the Gordon firm was “involved with
documenting” the transaction and received a conflict waiver from
Jackson and Dilonell (the Gordon firm previously represented
Dilonell). The firm prepared escrow instructions, an amendment
to escrow, a promissory note, a long form deed of trust, and a
grant deed for the transaction, which were admitted at trial. The
amendment to escrow was dated January 20, 2018, notarized,
and appeared to be signed by Jackson, Dilonell, and Peter Gordon
of the Gordon firm. Schoettle testified the instructions on the
note setting forth the payment schedule, interest rate, and
credits arose from discussions with Jackson, and that “nothing in
the Note . . . was not instructed by [Jackson].”
10
8. The typed trust document
Ammons testified that approximately two weeks before
Jackson’s death, Jackson told him to hand her “the blue book and
turn to page 6 and take a picture of it because it pertained to
him.” Ammons saw several pages of a typed document (the typed
trust document) but took photographs of only the first and sixth
pages. Both photographs were admitted at trial. The first
photograph showed a page with only the title “Alice M. Jackson
Living Trust.” (Underlining omitted.) The second photograph
captured only one section of page six, titled “Beneficiaries,” which
named Ammons as a primary beneficiary of the Walnut property
or the net proceeds from its pending sale to Dilonell. The section
stated the Walnut property was in escrow for sale “pursuant to
the sale escrow and Amendment.” Ammons testified he did not
see a signature or initials on the document.
Gordon testified that in 2017 or 2018, Jackson gave him a
form document with filled-in blanks that he used to create a
typed trust for her. He did not recall talking to Jackson about
the terms of the trust, but he believed he confirmed its contents
with her in some manner. Gordon could not recall who the
beneficiaries were, but he did not think Ammons was mentioned.
He arranged for a notary to notarize the trust, believed two
witnesses signed it, and had a “‘vague recollection’” of being there
when Jackson signed the document. He stated the original
document would have been maintained in his files. When shown
the two pages of the typed trust document, Gordon stated, “‘I
have not seen any typed document with Mr. Ammons’ name on
it.’” He acknowledged his recollections were vague because he
had not been involved with the matter for six years, and he had
turned the matter over to Schoettle.
11
Schoettle testified he never saw a typed trust and had no
idea where the purported typed trust document came from.
9. The assignment of rights, Jackson’s death, and
Dilonell’s discovery of the September 2017 trust
On February 23, 2018 Jackson and Dilonell executed an
agreement assigning Jackson’s rights and interest in the Walnut
property action to Dilonell. The Gordon firm prepared the
agreement pursuant to Jackson’s instructions. Jackson died on
February 24.
Approximately two months later, Dilonell visited
Schoettle’s office and went through the boxes of documents (with
Schoettle present) that Schoettle had taken from Jackson’s
facility for safekeeping. Dilonell found an open white cardboard
envelope in one of the boxes, which contained a sealed envelope
similar to the one Jackson had previously given Dilonell. Dilonell
believed the sealed envelope had Jackson’s name or an initial on
it, but she did not recall. Dilonell opened the sealed envelope and
found a signed copy of the September 2017 trust that had been
“filled out,” with a business card with librarian Chandra’s name
attached to it. Dilonell testified she showed the trust document
to Schoettle. The business card had handwriting on the back,
which Dilonell testified was consistent with Jackson’s
handwriting. The note read, “Received from Bill . . . in business
office on . . . 9/15/17 . . . attached to a note and living trust form.
Met [Chandra] on November 15th, 2017 at [the convalescent
facility].” Dilonell testified this was the first time she learned
about the trust.
Ammons testified that after Jackson died he went to the
Gordon firm to obtain a complete version of the typed trust
12
document, and Gordon told him he would receive monthly
payments from the Walnut property and proceeds from its sale.
Schoettle confirmed Ammons visited the firm after Jackson died
claiming a “‘trust fund’” existed, but Schoettle and Gordon told
Ammons they did not know to what document Ammons was
referring. Ammons showed Gordon and Schoettle the
photographs of the purported typed trust, but Schoettle had
never seen the document before.
C. The Probate Court’s Statement of Decision
In a nine-page statement of decision, the probate court
granted Dilonell’s Heggstad petition (except as to one storage
unit), finding the assets listed in schedule A of the
September 2017 trust were the assets of the trust. The court
denied Ammons’s petition to set aside the September 2017 trust.
The court found the trust was “Jackson’s sole, validly executed
trust” based on Chandra’s credible testimony, the completed
fillable trust form, and the note Jackson wrote on the business
card paperclipped to one of the trust copies, which documented
Jackson’s receipt of the fillable trust form 10 days before she
executed the trust (on September 15). Jackson completed the
form in her own handwriting and signed it, intending it to be her
trust. The court did not find persuasive Ammons’s handwriting
expert, who based his testimony on a different version of the
trust form and acknowledged that Jackson handwrote much of
the trust document, including five instances of her name.
The probate court further found the September 2017 trust
“[met] the requirements of Probate Code sections 15200-15206,
with the exception of section 15202’s requirement that there be
trust property.” However, the trust’s schedule “provides a great
13
level of detail regarding the assets Jackson intended to place into
the Trust,” and “Jackson clearly intended that the assets
included in [the] Schedule [] . . . be considered trust assets.” The
court therefore “order[ed] that those assets . . . are Trust assets.”
The probate court found Jackson had testamentary
capacity when she signed the September 2017 trust document.
Every witness who knew Jackson in 2017 and 2018 “was
unequivocal that, through her passing, she was sharp, knew what
she wanted, knew her assets, and was able to identify her
biological family.” Dr. Tracy, who saw Jackson until the day she
died, provided a similar account, which was corroborated by the
details Jackson wrote in the trust document. Further, Jackson
“took notes, wrote detailed letters, and continued to do so during
her entire stay in the convalescent home.”
The probate court found there was no typed trust,
explaining “there was no evidence—aside from [the two
photographs of trust pages presented by Ammons] and Ammons’s
testimony—that Jackson ever created [the typed] version of a
trust.” The court observed that no other pages of a typed trust
were introduced; no witnesses testified that they had seen signed
version of the typed trust document (including Ammons); and
there was no testimony that Jackson ever told Schoettle, to whom
she delivered her handwritten trust, that she executed a new
version of the trust. Further, Ammons “contradicted himself on
multiple occasions while on the stand,” and “[h]is testimony
conflicted with what was stated on numerous documents” and
was “impeached by several other witnesses,” including Schoettle
and Gordon. The court was not persuaded Jackson changed her
mind after executing the September 2017 trust given that she
14
verified the Walnut property complaint in her capacity as trustee
and never indicated to Schoettle that she was revoking the trust.
Finally, the probate court found the Gordon firm did not
create another trust. Although Gordon suggested his office may
have used Jackson’s completed fillable trust form as a template
for a typed trust, his memory had faded over the prior five years,
and he did not recognize the two pages of the typed trust
document that Ammons showed him. In addition, the
September 2017 trust did not mention Ammons, and it was more
likely that Gordon was recalling a notarized amendment to the
sale escrow document that Gordon witnessed Jackson sign.
On August 21, 2023 the court entered a judgment granting
Dilonell’s petition to determine the September 2017 trust’s
ownership of property (except for the storage unit) and denied
Ammons’s petition to set aside the September 2017 trust.
Ammons timely appealed.
DISCUSSION
A. Standard of Review
Typically, “[i]n reviewing a judgment based upon a
statement of decision following a bench trial . . . [w]e apply a
substantial evidence standard of review to the trial court’s
findings of fact.” (Thompson v. Asimos (2016) 6 Cal.App.5th 970,
981; accord, Hamlin v. Jendayi (2024) 105 Cal.App.5th 1064,
1074 [probate appeal].) However, “‘“where the issue on appeal
turns on a failure of proof at trial, the question for a reviewing
court becomes whether the evidence compels a finding in favor of
the appellant as a matter of law.”’” (In re Marriage of Diamond
(2024) 106 Cal.App.5th 550, 566; accord, Estate of Berger (2023)
15
91 Cal.App.5th 1293, 1297, 1307 [applying standard in probate
case to question whether “the facts of this case compel, as a
matter of law, a finding . . . that the drafter of the document at
issue here intended the document at issue to make a revocable
disposition of property that takes effect upon her death”].) Under
the compels a finding standard, the party with the burden of
proof at trial must show on appeal that its evidence was
“(1) ‘“‘uncontradicted and unimpeached’”’ and (2) ‘“‘of such a
character and weight as to leave no room for a judicial
determination that it was insufficient to support a finding.’”’”
(Atkins v. City of Los Angeles (2017) 8 Cal.App.5th 696, 734;
accord, Diamond, at p. 566.)
Ammons challenges the probate court’s finding that
Jackson had testamentary capacity in drafting the
September 2017 trust; that the September 2017 trust was a valid
trust; and that the typed trust document did not constitute a
valid trust. “‘A person challenging the validity of a trust
instrument on the grounds that the trustor lacked capacity to
execute the document . . . carries the heavy burden of proving
such allegations.’” (Eyford v. Nord (2021) 62 Cal.App.5th 112,
122 (Eyford).) Likewise, “[t]he burden of proving the elements
necessary to establish a trust rests upon the party asserting its
existence.” (McKinnon v. McKinnon (1960) 181 Cal.App.2d 97,
104; accord, Cohn v. Cohn (1933) 130 Cal.App. 349, 350, 355.)
Because Ammons bore the burden of proof on these issues at
trial, we review whether Ammons presented evidence that
compels a finding in favor of Ammons as a matter of law.
To the extent Ammons’s appeal presents questions of law,
we review the questions de novo. (Carne v. Worthington (2016)
246 Cal.App.4th 548, 555-556 [applying de novo review to
16
question of whether a separate deed was required to transfer
property into a trust]; Kucker v. Kucker (2011) 192 Cal.App.4th
90, 93 [“‘The [probate] court’s construction of the Probate Code is
subject to our de novo review.’”].)
B. The Evidence Does Not Compel a Finding That Jackson
Lacked Testamentary Capacity
1. Governing law on testamentary capacity
Ammons contends we should apply the mental capacity
standard for making decisions and entering contracts set forth in
sections 810 and 811; Dilonell argues the lower standard in
section 6100.5 for preparing wills applies. Dilonell has the better
argument.
As the Court of Appeal explained in Doolittle v. Exchange
Bank (2015) 241 Cal.App.4th 529, 545 (Doolittle), “A person
challenging the validity of a trust instrument on the grounds that
the trustor lacked capacity to execute the document or did so
under the undue influence of another carries the heavy burden of
proving such allegations. Section 810, subdivision (a) creates ‘a
rebuttable presumption affecting the burden of proof that all
persons have the capacity to make decisions and to be responsible
for their acts or decisions.’ Under section 811, a determination
that a person lacks the capacity to execute a trust must be
supported by evidence of a deficit in at least one of specified
mental functions that ‘by itself or in combination with one or
more other mental function deficits significantly impairs the
person’s ability to understand and appreciate the consequences of
his or her actions with regard to the type of act or decision in
question.’ (§ 811, subd. (b); see id., subd. (a).)”
17
However, “in determining capacity to execute a trust
amendment that ‘in its content and complexity, closely resembles
a will or codicil,’ the courts have held that the lower mental
capacity standard for the making of a will [under section 6100.5]
should apply.” (Doolittle, supra, 241 Cal.App.4th at p. 545; see
Andersen v. Hunt (2011) 196 Cal.App.4th 722, 731 (Andersen)
[§ 6100.5 applied to evaluation of decedent’s capacity to execute
trust amendments that “in [their] content and complexity, closely
resemble[d] a will or codicil”]; Eyford, supra, 62 Cal.App.5th at
p. 122, fn. 6 [“[w]e . . . see no reason why section 6100.5 should
not apply where, as here, a trust amendment reallocates the trust
estate by disinheriting one set of possible beneficiaries and giving
the entire estate to another beneficiary”]; cf. Lintz v. Lintz (2014)
222 Cal.App.4th 1346, 1352-1353 (Lintz) [contractual standard in
§§ 810 and 811 applied because the trust instruments “were
unquestionably more complex than a will or codicil” in that they
“addressed community property concerns, provided for income
distribution during the life of the surviving spouse, and provided
for the creation of multiple trusts, one contemplating estate tax
consequences, upon the death of the surviving spouse”].)
Under section 6100.5, an individual is competent to make a
will when he or she understands “the nature of the testamentary
act”; “understand[s] and recollect[s] the nature and situation of
[his or her] property”; and “remember[s] and understand[s] [his
or her] relations to living descendants, spouse, and parents, and
those whose interests are affected by the will.” (§ 6100.5,
subd. (a)(1)(A)-(C).) “‘[T]he standard for testamentary capacity
[under section 6100.5] is exceptionally low.’” (Doolittle, supra,
241 Cal.App.4th at p. 545; accord, In re Marriage of Greenway
(2013) 217 Cal.App.4th 628, 641 [“There is a large body of case
18
authority reflecting an extremely low level of mental capacity
needed before making the decision to marry or execute a will.”].)
The probate court impliedly relied on section 6100.5 to
assess Jackson’s capacity, finding Jackson “was sharp, knew
what she wanted, knew her assets, and was able to identify her
biological family,” consistent with the language of section 6100.5,
subdivision (a)(1) and (2). The court properly relied on
section 6100.5 because, like the trust instruments in Andersen
and Eyford, the September 2017 trust closely resembled a will: it
named the assets Jackson sought to devise and specified the
beneficiaries who would receive them without involving
additional complexities like those present in Lintz.
2. Ammons has not met his burden to show Jackson
lacked testamentary capacity as a matter of law
On appeal Ammons relies on three primary pieces of
evidence to show Jackson had diminished capacity in executing
the September 2017 trust: (1) the allegations in the Walnut
property complaint regarding Jackson’s diminished capacity;
(2) Jackson’s failure to inform Ammons of the September 2017
trust; and (3) the “degradation of [Jackson’s] ability to write,” as
shown by the notes she took while at the convalescent facility.
This evidence does not compel a finding that Jackson lacked
testamentary capacity.
As the probate court observed in finding Jackson had
testamentary capacity, witnesses who associated with Jackson in
2017, including Dr. Tracy, Chandra, and Schoettle, attested to
Jackson’s mental acuity, and no other witness (including
Ammons) testified to the contrary. Moreover, Schoettle testified
that Jackson completed the trust document in her own
19
handwriting, which included naming beneficiaries and listing her
assets; she expressed her desire to include the trust in the
Walnut property action; and she discussed with Schoettle some of
the trust’s contents and the potential need for a related
conveyance. And, according to Schoettle, Jackson instructed him
regarding the terms of a relatively complex promissory note
related to the sale of the Walnut property.
Although the Walnut property complaint alleged Jackson
was limited in function within the meaning of section 811 and
substantially unable to manage her financial resources or resist
fraud or undue influence, the probate court could have
reasonably found these allegations did not rebut the significant
showing at trial that Jackson had testamentary capacity.
Moreover, there was no testimony at trial regarding the basis for
the allegations in the Walnut property complaint. Further, the
allegation that Jackson was limited in function within the
meaning of § 811 did not preclude Jackson from having
testamentary capacity under section 6100.5 which, as discussed,
requires a significantly lower mental capacity.6
6 In his reply brief, Ammons argues the allegations in the
Walnut property complaint constituted judicial admissions that
the probate court should not have disregarded. However, “we do
not consider arguments raised for the first time in a reply brief
absent good cause,” a showing that Ammons has not made.
(Champir, LLC v. Fairbanks Ranch Assn. (2021) 66 Cal.App.5th
583, 598; accord, Altavion, Inc. v. Konica Minolta Systems
Laboratory, Inc. (2014) 226 Cal.App.4th 26, 63, fn. 27 [argument
made for the first time in reply brief was forfeited].) Even if we
were to consider the argument, “‘[a] judicial admission is effective
(i.e., conclusive) only in the particular case.’” (Minish v.
Hanuman Fellowship (2013) 214 Cal.App.4th 437, 456.)
Although Ammons requests that we make an exception to this
20
With respect to Jackson’s purported degraded handwriting,
Ammons has forfeited this contention by raising it for the first
time on appeal. (See Cook v. University of Southern California
(2024) 102 Cal.App.5th 312, 325 [“‘“Failure to raise specific
challenges in the trial court forfeits the claim on appeal.”’”];
Bitner v. Department of Corrections & Rehabilitation (2023)
87 Cal.App.5th 1048, 1065 [“Having failed to raise or develop this
issue in the trial court, plaintiffs cannot raise the issue for the
first time on appeal.”].) Moreover, even if Ammons had not
forfeited this argument, no witness at trial, including Ammons’s
own handwriting expert, testified regarding changes to Jackson’s
handwriting or how such changes bore on her mental capacity.
C. The September 2017 Trust Was Valid
Ammons contends the September 2017 trust was invalid
because it did not contain trust property, and therefore, it did not
meet section 15202’s trust property requirement. The probate
court did not err in concluding otherwise.
The necessary elements of a valid trust are (1) an intention
to create a trust (§ 15201); (2) trust property (§ 15202); (3) a trust
purpose (§ 15203); and (4) a beneficiary (§ 15205). Section 15200
sets forth the methods for creating a trust, which include “[a]
declaration by the owner of property that the owner holds the
property as trustee.” (Id., subd. (a).)
limitation on judicial admissions in the interest of justice, we
decline to do so here, where ample evidence supported Jackson’s
testamentary capacity.
21
The Court of Appeal in Heggstad, supra, 16 Cal.App.4th at
page 950 clarified that, with respect to creation of a trust under
section 15200, subdivision (a), “a written declaration of trust by
the owner of real property, in which he names himself trustee, is
sufficient to create a trust in that property, and that the law does
not require a separate deed transferring the property to the
trust.” Further, “a transfer of title is not necessary [to create a
valid trust] when the settlor declares himself trustee in his own
property” and declares “that that he holds the property in trust
for another.” (Heggstad, at pp. 947, 950; see Dudek v. Dudek
(2019) 34 Cal.App.5th 154, 169 [applying Heggstad to transfer of
intangible personal property without usual formalities of
transfer]; Kucker v. Kucker, supra, 192 Cal.App.4th at pp. 94-95
[applying Heggstad to shares of stock where settlor’s property
assignment conveyed all of her real and personal property to
herself, because general assignment “show[ed] that the [settlor]
intended to transfer all of her personal property to the Trust”].)
The probate court did not err in finding the
September 2017 trust was valid and ordering that the property
listed in schedule A were assets of the trust. Jackson’s written
declaration of trust named herself as trustee, identified
beneficiaries, and specified that the property in the attached
schedule were assets of the trust. Further, as the court observed,
Jackson completed the trust form in her own handwriting and
provided a detailed list of the assets to be devised in the attached
schedule, which manifested her intent to create the trust.
Accordingly, Jackson created a valid trust despite the fact she did
not execute formal deeds or conveyances transferring the
property in schedule A into the trust.
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D. The Evidence Does Not Compel a Finding That the Typed
Trust Document Was a Valid Trust
As discussed, one of the necessary elements of a valid trust
is the settlor’s manifestation of an intent to create a trust.
(§ 15201.) “‘It is well settled that no particular language or
terminology is necessary to create a trust; nor need the word
“trust” or “trustee” be used; nor need all the conditions of the
trust be expressed in a single paper; nor need a trust in personal
property be in writing.’” (Higgins v. Higgins (2017)
11 Cal.App.5th 648, 661; accord, Godoy v. Linzner (2024)
106 Cal.App.5th 765, 780.) “In general, a settlor may manifest
the intention to create a trust by written or spoken words, or by
conduct.” (Lonely Maiden Productions, LLC v. GoldenTree Asset
Management, LP (2011) 201 Cal.App.4th 368, 379-380, citing
Rest.3d Trusts, § 13, com. b, p. 207.) “In interpreting the settlor’s
words and conduct, the circumstances surrounding the transfer
may be considered unless they are excluded by the parol evidence
rule.” (Lonely Maiden, at p. 380.)
In reaching its conclusion that Ammons did not meet his
burden to show that Jackson created a valid trust by executing
the typed trust document, the probate court relied on the fact
that no witnesses, including Ammons, testified they saw a signed
version of the typed trust document; Jackson never informed
Schoettle that she had executed a new (and superseding) trust;
Ammon’s testimony about the typed trust document was
contradicted by Gordon (who said he never saw a trust document
giving assets to Ammons) and Schoettle (who had never seen a
typed trust); and Jackson requested the September 2017 trust
(not another trust) prosecute the Walnut property action.
23
Ammons argues he met his burden because Gordon
testified he remembered typing a trust for Jackson and
witnessing its signing; Jackson directed Ammons to the typed
trust document; and the typed trust document referenced the
amendment to escrow and other documents executed in 2018
(that is, after the September 2017 trust), showing that the typed
trust superseded the prior trust.
Ammons has not met his burden on appeal to show this
evidence compels a finding in his favor as a matter of law.
Although Gordon recalled typing a trust for Jackson and
witnessing its signing, he conceded his recollection of the signing
and other events relevant to the case was “‘vague.’” Further, in
contrast to the typed trust document, Gordon testified the
document he drafted did not mention Ammons, and Gordon did
not recognize the typed trust document when he viewed it at
trial. And the probate court found that Gordon, in describing a
typed document, was recalling the amendment to escrow that
was notarized, bore Gordon’s signature, and provided terms and
conditions for the sale of the Walnut property. The fact the typed
trust document described other documents executed in 2018 did
not show Jackson’s intent to create a valid and superseding trust.
With respect to Ammons’s testimony that Jackson showed him
the typed trust document, he did not testify that he saw her
signature on the document. This evidence, taken together, does
not compel a finding contrary to the wealth of evidence showing
the operative trust was the September 2017 trust.
E. Ammons’s Judicial Estoppel Argument Lacks Merit
Ammons contends Dilonell is judicially estopped from
asserting Jackson’s mental competence because she adopted the
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Walnut property complaint’s allegations that Jackson was elderly
within the meaning of section 811 and was unable to manage her
financial resources or resist undue influence. However, Ammons
forfeited this contention by not raising it in the probate court.
Ammons presented multiple arguments in his objection to
Dilonell’s Heggstad petition and in his petition to set aside the
September 2017 trust, but he never asserted judicial estoppel.
Ammons does not point to any portion of the record where he
raised the issue, and our own review of the record has not
revealed any. Thus, the issue is forfeited. (See Estate of Martino
(2023) 96 Cal.App.5th 596, 613 [judicial estoppel forfeited in
probate action where objectors did not raise the issue in their
response to the petition, joint trial readiness conference report, or
at trial]; Lee v. West Kern Water Dist. (2016) 5 Cal.App.5th 606,
631 [judicial estoppel argument forfeited where issue not raised
until after verdict].)
Even if Ammons had not forfeited this argument, he has
not established all the elements necessary for judicial estoppel.
Judicial estoppel applies when “‘“‘(1) the same party has taken
two positions; (2) the positions were taken in judicial or quasi-
judicial administrative proceedings; (3) the party was successful
in asserting the first position (i.e., the tribunal adopted the
position or accepted it as true); (4) the two positions are totally
inconsistent; and (5) the first position was not taken as a result of
ignorance, fraud, or mistake.’”’” (People v. Castillo (2010)
49 Cal.4th 145, 155.) Ammons failed to present any evidence on
the third element: that the probate court in the Walnut property
action adopted or found true the allegations regarding Jackson’s
incapacity. To the contrary, the probate court ordered a sale of
the Walnut property and permitted either party to bid on the
25
property, and the parties reached a stipulated settlement “on the
remaining accounting issues.”7 And, as to the fifth element,
Ammons did not present any evidence that the allegations in the
Walnut property complaint were not made by ignorance or
mistake (or any testimony as to the basis for the allegations in
the Walnut property complaint).
DISPOSITION
The judgment is affirmed. Dilonell is to recover her costs
on appeal.
FEUER, J.
We concur:
MARTINEZ, P. J.
STONE, J.
7 We take judicial notice of the opinion in Dilonell v.
Chandler (Mar. 23, 2022, B310695) (nonpub. opn.).
26