In re the Olesky Family Trust 

Filed 5/30/06  In re the Olesky Family Trust  CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

            APPEAL from an order of the Superior Court of Los Angeles County, Thomas W. Stoever, Judge.  Affirmed.

            Hoffman, Sabban & Watenmaker and Kenneth S. Wolf for Objectors and Appellants.

            Greenberg Glusker Fields Claman Machtinger & Kinsella, Michael A. Greene and Marc M. Stern for Petitioner and Respondent.

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INTRODUCTION

            Appellants Cynthia Giammarrusco and Northern Trust Bank, trustees of the various trusts created under The Olesky Family Trust― 1983, appeal from an order granting respondent Mark Simon's petition for declaratory relief.  The order determined that the filing of respondent's proposed petition to interpret a clause granting a power of appointment would not violate the no contest clauses contained in either The Olesky Family Trust― 1983 or The Survivor's Trust Under The Olesky Family Trust--1983.  Appellants contend the trial court erred with respect to The Survivor's Trust Under The Olesky Family Trust--1983.  We disagree and affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

            Howard D. Olesky (Howard) and Maxine Olesky (Maxine) created The Olesky Family Trust--1983 (Family Trust) on February 27, 1984.  They restated/amended the Family Trust five times, the fifth amendment being on October 16, 1996.  Howard died four days later, on October 20, 1996.  Maxine amended the Family Trust on January 15, 1997.  Maxine died on November 9, 2003.

            Appellant Cynthia Giammarrusco (Cynthia) is Howard and Maxine's daughter.  Respondent Mark Simon (Mark) is Howard's son.

            The Family Trust provided that upon the death of the first trustor--Howard--the trust was to be divided into three shares: (1) a decedent's trust, containing the maximum amount that could be placed in a trust not qualifying for the marital deduction without requiring payment of federal estate taxes; (2) a marital trust, containing assets qualifying for the marital deduction; and (3) a survivor's trust, containing the survivor's--Maxine--share of the community property and any portion of the decedent's share of the community property not allocated to the decedent's trust or the marital trust.  The decedent's trust and marital trust would be irrevocable, but the survivor would have power of revocation or appointment over the survivor's trust.

            Upon Howard's death, no decedent's trust was created, in that Howard had used his unified credit during his lifetime.  Exempt and Non-Exempt Marital Trusts and The Survivor's Trust Under The Olesky Family Trust--1983 (Survivor's Trust) were created.[1]

            The Family Trust also provided in article 4, paragraph 9,[2] that, notwithstanding any other trust provisions, upon Howard's death, $200,000 would be distributed to Mark.  If Howard were the decedent, this gift would be made from the decedent's trust.  If Howard were the survivor, this gift would be made from the Survivor's Trust.  Article 5, paragraph 2(e),[3] provides that upon the survivor's death, $200,000 would be distributed to Mark; if Howard were the survivor, this would be in addition to the gift provided in article 4, paragraph 9.  Also upon the survivor's death, $100,000 would be distributed to each of Mark's children.  (Art. 5, para. 2(e)(ii).)

            As to the decedent's trust and the marital trusts, the Family Trust provided:  â€