In the Matter of the Daniel E. Wilcoxen Eighth Restated Revocable Trust Dated November 5, 2024

The Trust was restated multiple times during the Settlor’s lifetime. The Fifth Restated Trust (May 2023) contained a tangible personal property clause which referred only to traditional categories of personal property, such as household goods, artwork, vehicles, collectibles, apparel, jewelry, etc., and did not reference real property. The phrase “real property” appeared for the first time in that clause within the Sixth Restated Trust and in each restatement thereafter, including the operative Eight Restatement.

The Eighth Restatement also introduced Article Fifth, which provides for equal distribution of the residue of the Trust estate among ten named beneficiaries after payment of specific bequests, expenses, and obligations. Of note, Mr. Dudujian was Settlor’s original estate planning attorney. Upon his retirement, Settlor requested the trust document in WordPerfect from him, which was provided. Settlor thereafter signed the Sixth Restatement on May 29, 2024, and subsequently prepared the Seventh and Eighth Restatements himself.

Article Third, paragraph 12, gives cash bequests totaling $7.325 million; however the entire issue arises from the final unlettered paragraph, which instructs: Except as otherwise provided herein upon the death of the Trustor, the Trustee shall distribute all tangible personal property including, but not limited to, real property, household furnishings, appliances and fixtures, works of art, motor vehicles, pictures, collectibles, personal wearing apparel and jewelry, books, sporting goods, and hobby paraphernalia to be divided equally between SHIRLEY WILCOXEN if she survives me, her sisters and brother.

All firearms and guns are left to DOUGLAS HILL. Trustor's gold Rolex watch is left to DREW M. WIDDERS. (emphasis added) Settlor’s pour-over Will, executed on the same date as the Eight Restatement, expresses his intent that “all my property, both personal and real” be transferred to the Trust. One could interpret this to reflect Settlor’s understanding that personal property and real property were distinct categories requiring separate reference. Schedule A to the Eighth Restatement separately enumerates the Trust’s real property holdings as a distinct category of Trust assets, alongside bank accounts, vehicles, and other personal property, which reflects Settlor’s consistent treatment of real property as a category separate from tangible personal property.

An Assignment of Personal Property was signed by Settlor on the same date he signed the Eighth Restatement, which transfers tangible personal property, including jewelry, clothing, household furnishings, works of art, boats, automobiles, sporting goods, electronic equipment, and musical instruments; however, it is silent as to any real property.

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The Eighth Restatement provides specific transfers of real property, including 9692 Endsleigh Court and 69-555 Waikoloa Beach Drive, Unit 1302. A specific devise of 3388 Apollo Circle to Florentine Abbott was also included in the Eighth Restatement. Article Fifth in the Eighth Restatement provides a residuary distribution scheme for ten beneficiaries. Many beneficiaries have argued the proper interpretation of Article Third, paragraph 12 does not include the distribution of trust real property and is limited to the distribution of tangible personal property.

There are two interpretations regarding the effect of the phrase “real property in the final unlettered paragraph of Article Third, paragraph 12: 1. The phrase “real property” in the tangible personal property distribution clause is given its plain meaning, and all Trust real property (other than specifically bequeathed parcels) passes to Shirley A. Wilcoxen and her siblings (“Interpretation One”); and 2. The reference to “real property” in the tangible personal property distribution clause is construed not to govern the distribution of trust real property, and the clause is limited to the distribution of tangible personal property, with all real property not otherwise specifically bequeathed remaining part of the general trust estate available to satisfy the cash bequests under Article Third, paragraph 12(a)-(x) and any remaining balance passing through the Article Fifth residuary scheme (“Interpretation Two”).

The Declaration of Trust Protector provides upon review of the Eighth Amendment, Article Third, paragraph 12 erroneously states that tangible personal property includes “real property.” Trust Protector instructs the inclusion of “real property” within the clause for tangible personal property is not part of the definition of personal property. Additionally, with the addition of Article Fifth, it creates a circular reference to the distribution of property and both provisions cannot exist. Based upon the ordinary usage and standard estate planning practice, tangible personal property does not include real property.

Having known Settlor for over 40 years, the residuary definition provided in Article Fifth controls over inconsistencies in the closing paragraph of Paragraph 12 of Article Third. The Trust makes separate transfers of real property, which demonstrates real property was intended to be handled outside of the personal effects clause. Petitioner makes the following requests: 1. The Court determine the proper construction of the final unlettered paragraph of Article Third, paragraph 12 of the Daniel E.

Wilcoxen Eighth Restated Revocable Trust, including whether the phrase “real property” in Article Third, paragraph 12 of the Daniel E. Wilcoxen Eighth Restated Revocable Trust directs distribution of Trust real

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property to Shirley A. Wilcoxen and her siblings, or whether the clause is construed as limited to the distribution of tangible personal property; 2. The Court instructs Petitioner, as Successor Trustee, concerning administration and distribution of the Trust consistent with that construction; 3. If the Court determines the issue cannot be resolved through construction of the instrument and admissible extrinsic evidence alone, the Court determine the validity or effect of the disputed language and grant such further relief as may be appropriate under Probate Code §§ 17200(b)(3), 17200(b)(13), and if necessary § 15409.

Respondent requests the Court adopt “Interpretation One” and distribute the trust assets according to the plain language of the Trust instrument. Respondent argues that Settlor intentionally revised the final sub-section of Article Three paragraph 12 to include “real property.” Respondent is under the belief that Settlor was in the process of preparing a Ninth Restatement to the Trust prior to his death, which would have left greater gifts to the siblings of Shirley Wilcoxen, and reduced or eliminated certain gifts to other individuals named in the Eighth Restatement.

Respondent asserts that Settlor’s pour-over Will and Schedule A to the Eighth Restatement reflects his understanding that personal property and real property are distinct categories of assets and he nevertheless chose to insert the phrase “real property” into the contested paragraph. As an experienced attorney for over forty years, he specifically inserted the term “real property” into the contested paragraph on his own volition. Respondent contends that Petitioner has not presented any clear and convincing evidence to support the proposed reformation of the Trust pursuant to Interpretation Two.

Trust Protector is authorized to “correct ambiguities, including scrivener errors, that might otherwise require court construction or reformation”; however, Respondent asserts he does not have authority to amend the plain and unambiguous language of the Trust instrument. Moreover, Trust Protector’s declaration does not contain any clear and convincing evidence to support reformation. Respondent argues there is no evidence to support modification of the Eighth Restatement pursuant to Probate Code § 15409.

Additionally, Respondent asserts that as this dispute is not a “contest” or “attack” on the Trust or its provisions but is rather a question of trust interpretation, Trustee should be prohibited from using Trust assets to litigate this matter. In the event the Court decides not to adopt “Interpretation One,” Respondent requests an evidentiary hearing. Respondent requests the following relief: 1. Interpreting the Trust according to its plain language;

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2. Confirming the validity and effect of the contested paragraph as written under Probate Code § 17200(b)(3); 3. Instructing the Trustee to distribute the Trust assets according to “Interpretation One” of the contested paragraph; 4. Denying Petitioner’s requests for relief under Probate Code §§ 17200(b)(13) and 15409; and 5. Awarding Respondent reasonable attorneys’ fees and costs in this matter. Beneficiary Taylor provides that as a friend who worked closely with Settlor for over twenty years, Settlor often spoke about his plans for his estate after his death.

Based upon these discussions, Beneficiary Taylor believes the proper construction is Interpretation Two. Settlor discussed his gifts with her and chose them deliberately based on his feelings at the time. As Settlor closely followed his finances, he would not have designed a plan that gave his real estate away through a clause about personal belongings, reduced his own cash gifts, and likely left little or nothing for the residuary that he had just created, which would occur if Interpretation One was followed.

Beneficiary Taylor asserts that the Trust instrument and documents executed the same day are consistent with Settlor’s intent regarding Interpretation Two. As read as a whole, the contested paragraph distributes only Settlor’s tangible personal property, and the words “real property” have no operative effect. Yvonne R. Edelman, daughter of Settlor, is under the belief that Settlor did not intend that most of his estate, which consisted of real property, to pass through a paragraph concerning his personal belongings, to her mother, Shirley Wilcoxen, Patricia Hill, James Wright, and Terea Don.

Beneficiary, Neli Tsoneva (“Beneficiary Tsoneva”), provides that she worked as the legal assistant to Settlor until he suffered a stroke on February 13, 2025. Beneficiary Tsoneva instructs Settlor did not use a computer to prepare his documents but would rather dictate his changes to her or write his changes by hand on a printed document in which she would then prepare the typed version for him. Beneficiary Tsoneva provides the Eighth Restatement bearing Settlor’s handwritten revisions, which he gave to her. (Tsoneva Dec.; Exhibit 1).

In those revisions, Settlor struck through the bequest to Kellen Ray and the entire paragraph distributing tangible personal property, including the reference to “real property”, to Shirley Wilcoxen and her siblings. He only left the gifts of firearms to Douglas Hill, and his gold Rolex watch to Drew Widders. He also changed the amounts of several specific bequests. Beneficiary Tsoneva attests that she incorporated those handwritten revisions into the Eighth Restated Trust’s WordPerfect document and titled it “AMENDMENT 1”. (Tsoneva Dec.; Exhibit 2).

This was completed on or around February 7, 2025, approximately one week before

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Settlor suffered a stroke. Beneficiary Tsoneva states that she titled the document “AMENDMENT 1” pending further direction from whether Settlor wanted it called Amendment 1 or a Ninth Restatement. Settlor did not give her that direction prior to suffering a stroke on February 13, 2025, and did not give her any further changes after February 7, 2025. The Court finds that the Settlor’s intent is consistent with “Interpretation Two.” The Court orders that for the purpose of trust administration, the words “real property” are struck from the final unlettered paragraph of Article Third, paragraph 12 on page 9 of the Eighth Restatement, and the Trustee shall act consistent with this Court’s instruction.

The final unlettered paragraph of Article Third, paragraph 12 shall be read as follows: Except as otherwise provided herein upon the death of the Trustor, the Trustee shall distribute all tangible personal property including, but not limited to, household furnishings, appliances and fixtures, works of art, motor vehicles, pictures, collectibles, personal wearing apparel and jewelry, books, sporting goods, and hobby paraphernalia to be divided equally between SHIRLEY WILCOXEN if she survives me, her sisters and brother.

All firearms and guns are left to DOUGLAS HILL. Trustor's gold Rolex watch is left to DREW M. WIDDERS. TENTATIVE RULING #1: ABSENT OBJECTION THE PETITION FOR INSTRUCTION IS GRANTED DIRECTING THE TRUSTEE TO ACT CONSISTENT WITH THE COURT’S INSTRUCTION TO DISREGARD THE WORDS “REAL PROPERTY” IN THE FINAL UNLETTERED PARAGRAPH OF ARTICLE THIRD, PARAGRAPH 12 ON PAGE 9 OF THE EIGHTH RESTATEMENT. ANY PERSON WHO HAS AN OBJECTION MAY MAKE IT AT ANY TIME, EVEN ORALLY AT THE HEARING (PROBATE CODE § 1043).

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