Alward v. Alward CA3

California Court of Appeal Jun 26, 2013 No. C069645Unpublished

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Holding. The court held that the trust remained revocable by the surviving trustor after the death of the first trustor and that the appellant failed to establish the elements necessary to shift the burden of proof regarding undue influence.

Issues

Whether a trust agreement became irrevocable upon the death of one of two trustors.
Whether the trial court erred in placing the burden of proof on the challenger to show undue influence.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The logical inference is that the trust is revocable and subject to amendment until such time.”

“The parent-child relationship may, but does not necessarily result in a confidential relationship.”

“The unbroken rule in this state is that courts must refuse to set aside the solemnly executed will of a deceased person upon the ground of undue influence unless there be proof of “a pressure which overpowered the mind”

Filed 6/26/13 Alward v. Alward CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Shasta)

MICHAEL ALWARD, C069645

Plaintiff and Appellant, (Super. Ct. No. 10CVPB0026534) v.

ROBERT ALWARD, as Trustee, etc.,

Defendant and Respondent.

Charles Alward died in 2009, and was survived by his two sons, Michael Alward and Robert Alward.1 Approximately six months before his death, Charles executed a new will and an amendment to his 1986 trust agreement. The effect was to disinherit Michael and to remove him as a successor trustee. Michael brought this proceeding to declare the trust amendment invalid, to remove Robert as trustee, and for an accounting. The trial court entered judgment in favor of Robert, and specifically found that the trust

1 We shall refer to Charles, Michael, and Robert Alward by their first names, not from disrespect, but to avoid confusion.

amendment was valid, the 2009 will was valid, that Charles had the necessary testamentary capacity, and that Robert did not unduly influence Charles. Michael argues: (1) that the 1986 trust was not subject to amendment, and (2) that Robert had the burden of proving he did not exercise undue influence over his father. There is no appellate challenge to the trial court’s finding of testamentary capacity. We shall affirm the judgment of the trial court. FACTUAL AND PROCEDURAL BACKGROUND Charles and his wife, Dorothy, executed a trust agreement in 1986. Charles and Dorothy were the trustors and trustees of the trust. The agreement provided that “[d]uring such time as either Trustor is alive . . . the Trustee shall distribute from this fund to or for the benefit of the Trustors, or either of them, such sums at such times as the Trustor shall direct . . . .” The agreement stated that upon the death of both trustors, “[t]he balance of the trust estate remaining after any payments of expenses and taxes . . . shall be distributed to the Trustors’ descendants who survive both Trustors, by right of representation.” As indicated, Charles and Dorothy had two sons who survived them – Robert and Michael. Two provisions of the trust agreement are crucial to this case. The first was Article I, paragraph B, of the trust titled “Amendment or Revocation,” which stated:

Alward v. Alward CA3

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MICHAEL ALWARD, C069645

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