Balistreri v. Balistreri CA1/3

Filed 6/14/24 Balistreri v. Balistreri CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIRST APPELLATE DISTRICT DIVISION THREE

MARY A. NIVALA BALISTRERI, as Trustee, etc., Plaintiff and Appellant, A162222

v. (San Francisco City & County SAL J. BALISTRERI, Super. Ct. No. PTR-20-303610) Defendant and Respondent.

OPINION ON TRANSFER1 Mary A. Nivala Balistreri filed a petition in probate court alleging that, the day before her husband, Sal C. Balistreri (decedent), died, the two amended their revocable trust. The probate court subsequently deemed the alleged amendment “null and void” and denied her petition to construe the trust and confirm the validity of the amendment. The court concluded the claimed amendment was invalid under section 15402 because the trust

1 We resolve this case by memorandum opinion. (Cal. Stds. Jud. Admin., § 8.1.) Undesignated statutory references are to the Probate Code. We use family members’ first names for convenience, intending no disrespect, and we recite only those facts necessary to resolve the issues on appeal.

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mandated that any amendment “shall be made by written instrument signed, with signature acknowledged by a notary public,” and the amendment was not so acknowledged. We affirmed. (Balistreri v. Balistreri (2022) 75 Cal.App.5th 511, review granted May 11, 2022, S273909.) The California Supreme Court granted review, then transferred the matter to us to vacate our decision and reconsider the cause in light of Haggerty v. Thornton (2024) 15 Cal.5th 729 (Haggerty). We vacate our decision and, having reviewed Haggerty, reverse and remand. Mary and the decedent were married and had a daughter, Julia. The decedent also had children from prior marriages, including Sal and Christina. In September 2017, Mary and the decedent created the Balistreri Family Trust (Trust). They named themselves trustors and trustees, and they placed community property located on 23rd Street in San Francisco (the property) in the Trust. Section 7.2.1 of the Trust provides that upon the decedent’s death, the property “shall be distributed equally among” Julia, Sal, and Christina. In turn, section 5.2.4 provides that “[a]ny amendment, revocation, or termination . . . shall be made by written instrument signed, with signature acknowledged by a notary public, by the trustor(s) making the revocation, amendment, or termination, and delivered to the trustee.” Mary alleged that in February 2020, the decedent executed an amendment in his capacity as trustor. As relevant here, the amendment sought to strike section 7.2.1 and stated the property “shall remain in the trust.” She and the decedent signed the amendment and “[a]ccepted and adopted” it as cotrustees. The amendment is not notarized. The decedent died the next day. Mary thereafter petitioned to construe the Trust and for an order confirming the validity of the amendment. She acknowledged the Trust imposed a notary requirement but argued the amendment was effective