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Chapter 2
Peter K. Dementas v. Estate of Jack Tallas, 764 P.2d 628; 95 Utah Adv. Rep. 28 (1988).
Williams v. Crickman, 405 N.E.2d 799 (1980)
Burch v. George, 27 Cal. Rptr. 2d 165 (1994).
In the Matter of the Estate of Julius Weinstock, et al. v. Usdan, 386 N.Y.S.2d 1 (1976).
81 Ill.2d 105, 405 N.E.2d 799, 39 Ill.Dec. 820
Supreme Court of Illinois.
Gertrude R. WILLIAMS, Appellant,
v.
Jerald A. CRICKMAN, Ex’r, et al., Appellees.
No. 52591.
May 30, 1980.
Residuary legatee of a will filed will contest seeking to invalidate one paragraph of the will, allegedly executed
as result of undue influence. The Circuit Court of Piatt County, John P. Shonkwiler, J., dismissed the action with
prejudice. The Appellate Court for the Fourth District, 75 Ill.App.3d 1105, 35 Ill.Dec. 863, 399 N.E.2d 1391,
affirmed, and leave to appeal was granted. The Supreme Court, Kluczynski, J., held that: (1) those portions of
the will alleged to be the product of undue influence could be stricken and the remainder of the will allowed
to stand if those portions of the will could be separated without defeating testator’s intent or destroying the
testamentary scheme, and (2) legatee was an “interested person” under the Probate Act and was therefore eligibleto
contest the validity of the will in that she would benefit from partial invalidation of the will.
Reversed and remanded.
Residuary legatee, who brought will contest alleging undue influence as to one provision of will, was “interested
person” under Probate Act and therefore eligible to contest validity of will in that she would benefit from par-
tial invalidation of the will. S.H.A. ch. 110 1/2, § 8-1; Ill.Rev.Stat.1977, ch. 110 1/2, § 8-3.
Charles G. Roth and Phillip B. Lenzini, Peoria (Kavanagh, Scully, Sudow, White & Frederick, Peoria, of counsel), for
appellant. Rosenberg, Rosenberg, Bickes & Johnson, Chartered, Decatur (Wayne L. Bickes, Decatur, of counsel),
for appellees.
KLUCZYNSKI, Justice:
Plaintiff, Gertrude R. Williams, a residuary legatee under an instrument admitted to probate purporting to be the
last will and testament of Florence M. East, filed a will contest in the circuit court of Piatt County. In the action,
she sought a declaration that one paragraph in the instrument, allegedly executed as a result of the undue influ-
ence of defendant Jerald A. Crickman and decedent’s attorney, Wayne L. Bickes, is null and void. The circuit
court ruled that the sole issue in a will contest is the validity of the instrument as a whole and that it was without
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authority to invalidate one provision only. In addition, the court found that plaintiff, not an heir of decedent,
could take only under the provisions of the instrument and therefore ruled that she was not an interested person
under section 8-1 of the Probate Act of 1975 (Ill.Rev.Stat.1977, ch. 110 1/2, par. 8-1) and dismissed the action
with prejudice. The appellate court, relying upon Snyder v. Steele (1922), 304 Ill. 387, 136 N.E. 649, affirmed the
rulings of the circuit court (75 Ill.App.3d 1105, 35 Ill.Dec. 863, 399 N.E.2d 1391) in an unpublished order issued
pursuant to Supreme Court Rule 23 (73 Ill.2d R. 23). Plaintiff appealed to this court pursuant to Supreme Court
Rule 315 (73 Ill.2d R. 315), and we granted leave to appeal.
Florence M. East, a resident of Piatt County, died on May 17, 1978. On June 1, 1978, defendant Crickman filed a
petition for probate of a will and the issuance of letters testamentary in the circuit court of Piatt County. Crickman
alleged in his petition that Florence M. East had died testate and that he had been nominated, in a will dated March
14, 1968, as executor of decedent’s estate. On July 13, 1978, the court entered an order admitting the instrument to
probate and issued letters testamentary to Crickman. Plaintiff, a residuary legatee under the instrument, filed a will
contest in the circuit court of Piatt County on October 12, 1978. Plaintiff alleged in her complaint that Crickman
had influenced decedent’s actions as her farm manager and financial advisor for many years prior to the execu-
tion of this instrument. The complaint further charged that Crickman had employed Wayne L. Bickes, the attorney
who drafted decedent’s will, as his own attorney for many years prior to the execution of this instrument and that
decedent, as a result of her age, health, and business competence, was unable to resist the combined efforts of
Crickman and Bickes to influence her to create an option in favor of defendant Crickman to purchase certain
farmland. In addition, the complaint charged that both Crickman and Bickes stood in a fiduciary and confidential
relationship to decedent and that they had breached their duties in influencing decedent to create the option to
purchase at an unconscionably low price. The complaint further charged that the acts of undue influence of
Crickman and Bickes affected only that provision in the will which created the option in favor of Crickman.
The instrument which purports to be the last will and testament of decedent contains bequests to various rela-
tives, friends and charitable institutions. The residuary clause of the instrument contains 22 separate provisions
for distribution of the residue of decedent’s estate. The portion of the instrument which plaintiff seeks to inval-
idate creates in favor of defendant Crickman an option to purchase 320 acres of farmland alleged by plaintiff to
have a value of $1,280,000. The terms of the trust allow defendant Crickman to purchase 320 acres of farmland
for a total purchase price of $200,000, to be paid in installments of $8,000 per year, for a period of 26 years, at
an interest rate of 3% per annum. The instrument also provides that, if defendant Crickman fails to exercise the
option within six months of the death of Miss East or forfeits his interest under the terms of the trust, the prop-
erty is to be sold and the proceeds distributed among the residuary legatees.
The determination of whether plaintiff is an interested person under section 8-1 of our probate act and there-
fore eligible to contest the validity of this testamentary instrument turns on the question of whether the relief
sought, a declaration of the partial invalidity of the instrument, can be granted. Plaintiff does not desire invali-
dation of the entire will; as a residuary legatee who is not an heir of decedent, plaintiff would gain only by
invalidation of a portion of the will. The narrow issue thus presented by this appeal is whether our courts have
the power to declare a testamentary instrument partially invalid under the provisions of our probate act where
only part of the instrument is alleged to be the product of undue influence.
Defendant Crickman, in seeking to sustain the judgments of the circuit and appellate courts, relies principally
upon the decision of this court in Snyder v. Steele (1922), 304 Ill. 387, 136 N.E. 649.He argues that our decision
in Snyder stands for the proposition that section 8-3 of the Probate Act of 1975 (Ill.Rev.Stat.1977, ch. 110 1/2,
par. 8-3) limits the issue in a will contest charging undue influence to the validity of the testamentary instrument
in its entirety. Crickman asserts that the only issue presented by this appeal is whether Snyder should be over-
ruled. In response to this question, Crickman contends that the construction of our probate act in Snyder, and
the subsequent reenactment of substantially similar provisions by the legislature, presents us with a question left
properly to legislative determination. In support of this position, Crickman relies upon the well-settled principle
of statutory construction that the reenactment of a statute which has been judicially construed is an adoption of
the construction by the legislature, since the legislature is presumed to know the construction given and, by
reenactment, is assumed to have intended the new statute to have the same effect.
Plaintiff argues, relying principally upon the decision of this court in Wolf v. Bollinger (1872), 62 Ill. 368,that the
power to determine whether the instrument produced is the will of the testator includes the power to pass upon
the validity of part of the instrument as well as the whole. Plaintiff contends that our decision in Wolf, a case
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which construed language substantially similar to the language contained in section 8-3 of the Probate Act of
1975 (Ill.Rev.Stat.1977, ch. 110 1/2, par. 8-3) is determinative of whether our courts have the power to declare
part of a testamentary instrument invalid. In support of this position, plaintiff points to the decisions of this court
in which specific provisions of a will were declared invalid and the remaining portions were allowed to stand.
See Beal v. Higgins (1921), 299 Ill. 229, 132 N.E. 542(invalidation of a dispository provision under the rule against
perpetuities); Wood v. Wood (1914), 263 Ill. 285, 104 N.E. 1108(invalidation of a fraudulently inserted provision
designating an individual as heir); Wombacher v. Barthelme (1902), 194 Ill. 425, 62 N.E. 800 (invalidation of a
provision naming the executor because of improper insertion); Lawrence v. Smith (1896), 163 Ill. 149, 45
N.E. 259 (invalidation of a dispository provision under the rule against perpetuities).
We agree with defendant that “ ‘the legislature is presumed to know the construction the statute has been given,
and by re-enactment, is assumed to have intended for the new statute to have the same effect.’ ” (Stryker v. State
Farm Mutual Automobile Insurance Co. (1978), 74 Ill.2d 507, 513, 24 Ill.Dec. 832, 834, 386 N.E.2d 36, 38, quot-
ing People ex rel. County of Kane v. Crawford (1971), 48 Ill.2d 227, 230, 269 N.E.2d 300, 302.) We also agree
that considerations of stare decisis weigh heavily in the area of statutory construction, especially where the leg-
islature is free to change court interpretations of its legislation. In determining whether a case is binding,
however, this court has the power and the duty under the doctrine of stare decisis to reexamine pertinent legal
concepts. (Bradley v. Fox (1955), 7 Ill.2d 106, 111, 129 N.E.2d 699.)We agree with plaintiff that where the court
has itself adopted conflicting interpretations of the same statute, the duty of the court in such a case is to clarify
and resolve its previous decisions, *112 and we should not assume that the legislature has approved an inter-
pretation which is obviously conflicting.
In the case relied upon by Crickman, Snyder v. Steele, defendant Steele, an attorney, had drafted an instrument
in which he was named executor of the estate and a legatee. Plaintiff, an heir of decedent, sought to have the
will declared null and void due to the exertion of undue influence by defendant. In the first appeal in the cause,
Snyder v. Steele (1919), 287 Ill. 159, 122 N.E. 520, the court set aside a verdict of the jury which sustained the
validity of the will. The court held that a fiduciary relationship existed between defendant and the testator, that
a presumption of undue influence existed, and that there was no evidence to rebut this presumption. In addi-
tion, the court held that the evidence did not show that the will was attested in the manner prescribed by statute,
and the cause was remanded for a new trial.
Subsequent to this appeal, defendant Steele resigned as executor of the estate and renounced his legacy under the
instrument. On remand, the probate court allowed Steele to testify, and the jury returned a verdict sustaining
the validity of the will. On appeal, this court held in Snyder v. Steele (1922), 304 Ill. 387, 390-93, 136 N.E. 649,that
section 7 of the evidence act (Smith’s Ill.Rev.Stat.1921, ch. 51, par. 7) did not permit a witness, otherwise incompe-
tent to testify by virtue of his interests adverse to decedent, to become competent to testify by release of his inter-
est under the will if the release were made for the purpose of testifying.
Notwithstanding the adverse ruling on Steele’s effort to testify, other interested parties sought to sustain the validity
of the will as to other bequests and argued that only those portions of the will tainted by undue influence should
be stricken. The court stated that, under the statute, the sole issue in a will contest is whether or not the instrument
“is the will of the testator, and the question is as to the validity of the will as a whole. Testimony which defeats one
defendant, one devisee or one legatee defeats all, and a judgment against one is necessarily a judgment against all.”
(304 Ill. 387, 394, 136 N.E. 649, 651.)In reaching this conclusion, the court found persuasive prior cases which pre-
cluded a legatee under the will from testifying against another unless they held a joint interest. (McCune
v. Reynolds (1919), 288 Ill. 188, 123 N.E. 317;Campbell v. Campbell (1891) 138 Ill. 612, 28 N.E. 1080;McMillan v.
McDill (1884), 110 Ill. 47.)Under those cases, the testimony of one joint tenant is admissible against all. The court
made no reference to Wolf v. Bollinger (1872), 62 Ill. 368,and cases similar thereto which allow partial invalidation.
Our examination of the opinion in Snyder leads us to conclude that the language of the court which addressed
the issue of partial validity of the instrument under the statute is dicta and in error. A holding of the court in the
first decision in the cause, that the instrument in question had not been attested to in the manner prescribed by
the statute, renders superfluous the discussion of partial validity in the second decision; there was no competent
evidence presented at the second trial of the cause on the question of attestation which would warrant a different
conclusion on that issue. It is true that this dicta is entitled to consideration by the court as persuasive, but it is
not binding authority within the rule of stare decisis. Department of Public Works & Buildings v. Butler Co.
(1958), 13 Ill.2d 537, 545, 150 N.E.2d 124.
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We are not, however, persuaded by the reasoning employed by the court on the question of partial invalidity.
In refusing to recognize the possibility of a partial invalidation, the court stated that “the greater weight of author-
ity,” including Illinois precedents, suggested the view that the will could only be passed upon as a whole. (Snyder
v. Steele (1922), 304 Ill. 387, 394, 136 N.E. 649.) Our review of the decisions of other jurisdictions (see Annot.,
64 A.L.R.3d 261 (1975)) and the decisions of this State which preceded *114 Snyder, beginning with Wolf v.
Bollinger (1872), 62 Ill. 368, reveals that this statement is erroneous. (See Beal v. Higgins (1921), 299 Ill. 229,
132 N.E. 542; Wood v. Wood (1914), 263 Ill. 285, 104 N.E. 1108; Wombacher v. Barthelme (1902), 194 Ill. 425,
62 N.E. 800;Lawrence v. Smith (1896), 163 Ill. 149, 45 N.E. 259.)As one writer said of Snyder’s reference to other
authorities, “No case has been found in any other jurisdiction to warrant such an assertion.” (See Note, Wills
Undue Influence Only Clauses Affected Invalidated, 32 Yale L.J. 294 (1923).) That the reasoning in Snyder was
in accord with dicta in Teter v. Spooner (1917), 279 Ill. 39, 116 N.E. 673, Gum v. Reep (1916), 275 Ill. 503,
114 N.E. 271, and Weston v. Teufel (1904), 213 Ill. 291, 72 N.E. 908,will not serve to support the proposition stated.
(See 1 W. Page, Wills sec. 15.12, at 742 n.9 (3d rev. ed. 1960).) Further, the court’s reliance upon a rule of
evidence which allows a joint tenant to testify against other joint tenants so as to defeat their interests under a
will was not proper.
Section 8-3 of the Probate Act of 1975 provides in relevant part:
“An issue shall be made whether or not the instrument produced is the will of the testator.” (Ill.Rev.Stat.1977,
ch. 110 1/2, par. 8-3.)
Substantially similar language was construed in Wolf v. Bollinger (1872), 62 Ill. 368, 371,wherein this court stated:
“It is said that, under this sixth section, the issue is to be, whether the writing produced and probated is the will
of the testator or not; that the instrument can only be passed upon as a whole, and that the court cannot adjudge
a part to be, and a part not to be, the will of the testator. But this is a distinction which is only verbal; it does
not exist in reason.
The power to try and determine whether the writing produced be the will of the testator or not, includes the
power to adjudge upon the validity of any part of the instrument, as well as the whole.“
Consistent with this construction, cases both before and after Snyder have recognized that part of an instrument
may be declared invalid and the remainder allowed to stand where the invalid portions can be separated from
the instrument as a whole without defeating the intent of the testator. (See Millikin National Bank v. Wilson
(1931), 343 Ill. 55, 64-65, 174 N.E. 857, 861;Easton v. Hall (1926), 323 Ill. 397, 422-23, 154 N.E. 216, 224-25;Beal
v. Higgins (1921), 299 Ill. 229, 233-35,132 N.E.2d 542, 543-44; Wood v. Wood (1914), 263 Ill. 285, 292, 104 N.E. 1108,
1111; Wombacher v. Barthelme (1902), 194 Ill. 425, 429-31, 62 N.E. 800, 802; Lawrence v. Smith (1896), 163 Ill.
149, 162-66, 45 N.E. 259, 262-64; Wolf v. Bollinger (1872), 62 Ill. 368, 371.) We agree with plaintiff, for example,
that if the contested provisions were fraudulently inserted by a third party, the court would have the power to
deny probate to that provision alone (Wood v. Wood (1914), 263 Ill. 285, 104 N.E. 1108). We can perceive no
logical reason for treating those provisions of a will alleged to be the product of undue influence in a different
manner. We therefore hold that, in a will contest in which it is alleged that part of a will is a product of undue
influence, those portions of the will alleged to be the product of undue influence may be stricken and the remainder
of the will allowed to stand if those portions of the will can be separated without defeating the testator’s intent
or destroying the testamentary scheme. “The validity of any portion of a will may be passed upon.” (3 W. James,
Illinois Probate Law & Procedure sec. 90.9, at 129 (1951), citing Wolf v. Bollinger (1872), 62 Ill. 368,and Wood
v. Wood (1914), 263 Ill. 285, 104 N.E. 1108. Accord, 1 H. Horner, Probate Practice & Estates sec. 95, at 194
(4th ed. 1976); C. McCulloch & F. McCulloch, Manual of the Law of Will Contests in Illinois sec. 72, at 40 (1929).)
As is stated by Page, the key inquiry in determining whether partial invalidation should be allowed is whether
the undue influence affected only a limited portion of the will and whether the testator would have intended
that the entire will fail because of the invalidation of one provision:
“If a part of the will is caused by undue influence, and such undue influence does not affect the remaining provisions of
the will, the validity of the provisions which are not caused by such undue influence depends, in part, on whether it is
possible to ascertain which portions are caused by the undue influence, and whether such portions, if ascertained, can be
held to be invalid without destroying the intention of the testator. If it is not practicable to ascertain what portions of the
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will were caused by undue influence and what were free from it, or if effect cannot be given to such provisions as are not
caused by undue influence, without defeating the intention of the testator, the entire will is invalid.
Where it can be shown that a part of the will was caused by undue influence, and that the rest of the will was
not caused thereby, and the part of such will caused by undue influence can be separated from the rest, leav-
ing it intelligible and complete in itself, it is held in most states, that only such part of the will as is caused by
undue influence is invalid, and the rest is valid.“ (1 W. Page, Wills sec. 15.12, at 741 (3d rev. ed. (1960), citing,
inter alia, Wombacher v. Barthelme (1902), 194 Ill. 425, 62 N.E. 800.)
On remand, the circuit court should consider these questions as they relate to this case, i. e., whether the alleged
undue influence affected only the provision granting the option to defendant Crickman and, if so, whether inval-
idation of that provision would defeat the entire testamentary scheme as intended by Miss East.
We accordingly hold that plaintiff, who as a residuary legatee would benefit from partial invalidation of this
instrument, is an interested person within the meaning of the Probate Act of 1975. To the extent that Snyder v.
Steele (1922), 304 Ill. 387, 136 N.E. 649, is inconsistent with our decision herein, it is overruled. The rule
expressed in the Snyder case is one which would effectively immunize from judicial scrutiny the unconscionable
overreachings of those in a fiduciary relationship to a testator, and it is a rule which, under equitable principles,
should not be countenanced. Our probate act should not be construed in such a way as to facilitate its use as a
means by which a fiduciary can defraud those who hold him in confidence; “the door to relief should not be
closed and the opportunity to show the wrong should not be denied” (5 A. Scott, Trusts sec. 489.6, at 3488
(3d ed. 1967)). Under the facts here alleged, the circuit court improperly dismissed plaintiff’s will contest; a cause
of action for partial invalidation is stated and is recognized in Illinois.
The judgments of the circuit and appellate courts are reversed, and the cause is remanded to the circuit court of
Piatt County for further proceedings not inconsistent with the views expressed herein.
Judgments reversed; cause remanded.
7 Cal.4th 246, 866 P.2d 92, 27 Cal.Rptr.2d 165
Supreme Court of California,
In Bank.
Marlene BURCH,Petitioner and Appellant,
v.
Randall GEORGE,Objector and Respondent.
No. S025369.
Feb. 7, 1994.
Spouse who was legatee under will and beneficiary under trust instrument brought special proceeding to deter-
mine whether proposed state and federal lawsuits would trigger “no contest” provision in trust instrument, so as
to invalidate dispositions made to her. The Superior Court, Ventura County, No. P-65955, Robert R. Willard, J.,
entered judgment that both actions would trigger “no contest” provision. Appeal was taken. The Court of Appeal
affirmed. The Supreme Court granted review, superseding Court of Appeal’s opinion. The Supreme Court, Baxter, J.,
held that: (1) “no contest” clause was properly enforceable against a surviving spouse who, under terms of a will
or trust instrument, bringing contest against that instrument based on assertion of community property rights to
estate property, and (2) statute authorizing “no contest” provision was not preempted by ERISA.
Affirmed.
Mosk and Kennard, JJ., dissented and filed opinion.
Hirschtick, Chenen, Cohen & Linden, Chenen, Cohen & Linden, Marvin M. Lager and C. Kelly McCourt, Marina
Del Ray, for petitioner and appellant.
Mitchell, Silberberg & Knupp, Allan P. Cutrow, Kathleen L. McAchran, Los Angeles, Nordman, Cormany, Hair &
Compton, Glen M. Reiser and Larry L. Hines, Oxnard, for objector and respondent.
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BAXTER, Justice.
Marlene Burch (Marlene) became the fifth wife of Frank Burch (Frank) in December 1985. In 1988, Frank exe-
cuted his integrated estate plan, which consisted of a will and an inter vivos trust. The beneficiaries of the trust
included Marlene, Frank’s elderly mother, his children from a prior marriage, and other relatives. Prior to his
death in March 1989, Frank transferred substantial assets to the trust.
To discourage litigation over the trust and its distribution scheme, Frank inserted a “no contest clause” in the
trust instrument. After Frank’s death, Marlene petitioned the probate court to determine whether she may, without
violating the no contest clause, proceed with plans to litigate her rights as a surviving spouse to certain assets in
the trust estate under California’s community property laws and under the federal Employee Retirement Income
Security Act of 1974 (29 U.S.C. § 1001 et seq.).
We conclude, based on the language of the trust instrument and the circumstances surrounding its execution,
that Marlene’s proposed actions would amount to a contest in violation of the instrument’s no contest clause. We
further conclude that enforcement of the clause against Marlene, in the event she decides to pursue her claims,
is fully consistent with California law and is not preempted by the federal act. As we shall explain, such enforce-
ment will in no way prevent or hinder Marlene from obtaining everything to which she may be entitled under
community property and federal laws, but will simply mean that if Marlene chooses to pursue those benefits she
may not, at the same time, obtain in addition the portion of Frank’s separate property that was conditionally left
to her under his trust.
FACTS
Marlene and Frank married in December 1985. This was Frank’s fifth marriage. Prior to the marriage, Frank was
part owner of a successful car dealership called Pacific Coast Ford (Pacific Coast). During the marriage, Frank
became sole owner of Pacific Coast and a participant in its pension plan.
In July and August of 1988, Frank met with his attorney and instructed him to create an integrated estate plan
consisting of a will and an inter vivos trust known as the Frank Burch Family Trust. Pursuant to the trust instrument
executed by Frank, the trust estate was to be divided into six separate subsidiary trusts upon Frank’s death. Five
of these subsidiary trusts were designated for the benefit of Frank’s blood relatives, including his elderly mother,
his children and a grandchild from a prior marriage. The sixth subsidiary trust was a marital trust in favor of
Marlene. Prior to his death, Frank transferred various assets to the trust, including interests in his Pacific Coast
stock, his Pacific Coast pension plan account, and six life insurance policies purchased by the pension plan.
To discourage litigation over his estate plan, Frank included a no contest clause in the trust instrument.FN1Under
the terms of the clause, any beneficiary who sought to contest or otherwise void, nullify or set aside the trust
instrument or any of its provisions would forfeit all right to take under the instrument.
FN1. Frank also inserted a no contest clause into his will.
Frank died in March 1989. At the time of his death, the assets that allegedly belonged to Frank were valued at more
than $7 million. Outside the trust, Marlene received nearly $800,000 in joint tenancy property and $200,000 in life
insurance benefits. Under the trust, Marlene would be provided with substantial assets, consisting of Frank’s Mercedes
Benz automobile, a 53-foot yacht, a $1 million beach house still under construction, and life insurance proceeds of
$60,000. In addition, Marlene would receive a life estate in the income of the marital trust that would pay $6,000 per
month. The marital trust was to be funded with $1.6 million of the proceeds derived from the sale of the Pacific Coast
stock. Also under the trust, the balance of approximately $4 million, including most of the proceeds from the sale of
the Pacific Coast stock and the entire pension plan death benefit of $169,000, would pass to Frank’s blood relatives.
After Frank’s death, Marlene petitioned the probate court pursuant to former Probate Code section 21305 FN2 to
determine whether she could, without violating the no contest clause, proceed with a proposed state action
against the trust to litigate her community property rights in the trust estate and a proposed federal action against
the administrators of the Pacific Coast pension plan to litigate her rights under the Employee Retirement Income
Security Act of 1974 ( 29 U.S.C. § 1001 et seq.). Relying on the language of the trust instrument, and the uncon-
troverted declarations of Frank’s attorney and one of the trustees of the trust, the probate court ruled, among
other things, that both of the proposed actions would trigger the trust instrument’s no contest clause because
they were “designed to thwart the basic intent of [Frank’s] estate plan.”
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FN2.Under former Probate Code section 21305, subdivision (a), a beneficiary could seek an advance ruling from
the probate court to determine whether “a particular motion, petition or other act by the beneficiary would be
a contest within the terms of a no contest clause.” Former section 21305 is continued in section 21320 of the new
Probate Code without substantive change. (20 Cal.Law Revision Com.Rep. (1990) p. 1994.)
The Court of Appeal affirmed this portion of the judgment.FN3 Additionally, the court rejected Marlene’s argu-
ment that the passive operation of California’s no contest law interferes with her rights under the federal act and
is therefore preempted. We granted review to consider the important issues presented herein.FN4
FN3. Based on a concession by a trustee of the trust, the Court of Appeal reversed that aspect of the probate
court’s judgment that held that the no contest clause would be triggered by a cause of action in Marlene’s pro-
posed state court complaint that sought reimbursement from the trust for house construction costs.
FN4. While this matter was pending here, the parties informed us that the case had been settled. Nonetheless, they
have requested that we decide the issues in this case in the interest of public policy and clarification of the law.
We have inherent power to retain a matter, even though it has been settled and is technically moot, where the
issues are important and of continuing interest. (See, e.g., Abbott Ford, Inc. v. Superior Court (1987) 43 Cal.3d
858, 868-869, fn. 8, 239 Cal.Rptr. 626, 741 P.2d 124, and cases cited therein.) Because the issues at hand meet
both criteria, we have concluded it is appropriate for us to retain and decide the matter.
DISCUSSION
This case presents essentially three questions. First, would Marlene’s proposed state and federal complaints trigger
the no contest clause contained in the trust instrument? Second, if the clause would be triggered, does California
law provide a basis for not enforcing the clause against Marlene with respect to the claims based on her com-
munity property rights? Third, if the clause is enforceable against Marlene under California law, then does the
federal Employee Retirement Income Security Act of 1974 (29 U.S.C. § 1001et seq.) otherwise preclude its oper-
ation to the extent pension benefits are at issue? We shall address these questions in order.
A. Would the No Contest Clause Be Triggered?
The interpretation of a will or trust instrument presents a question of law unless interpretation turns on the
credibility of extrinsic evidence or a conflict therein. (Estate of Dodge (1971) 6 Cal.3d 311, 318, 98 Cal.Rptr. 801,
491 P.2d 385; Estate of Russell (1968) 69 Cal.2d 200, 213, 70 Cal.Rptr. 561, 444 P.2d 353; Poag v.Winston (1987)
195 Cal.App.3d 1161, 1173, 241 Cal.Rptr. 330.) FN5 Since the record in the present case discloses no conflict in
the extrinsic evidence, and the parties have identified no issues of credibility, it is our duty to independently con-
strue the trust instrument.
FN5.We note that for interpretative purposes, no distinction is made between inter vivos and testamentary trusts.
(Brock v.Hall (1949) 33 Cal.2d 885, 889, 206 P.2d 360; Wells Fargo Bank v.Huse (1976) 57 Cal.App.3d 927, 932,
129 Cal.Rptr. 522.)
An in terrorem or no contest clause in a will or trust instrument creates a condition upon gifts and dispositions
provided therein. (See Estate of Lindstrom (1987) 191 Cal.App.3d 375, 381, 236 Cal.Rptr. 376.) In essence, a no
contest clause conditions a beneficiary’s right to take the share provided to that beneficiary under such an instru-
ment upon the beneficiary’s agreement to acquiesce to the terms of the instrument. (See Estate of Hite (1909)
155 Cal. 436, 441, 101 P. 443.)
No contest clauses are valid in California and are favored by the public policies of discouraging litigation and
giving effect to the purposes expressed by the testator. (Estate of Hite, supra, 155 Cal. at pp. 439-441, 101 P. 443;
Estate of Black (1984) 160 Cal.App.3d 582, 586-587, 206 Cal.Rptr. 663.) Because a no contest clause results in a
forfeiture, however, a court is required to strictly construe it and may not extend it beyond what was plainly the
testator’s intent. (Estate of Watson (1986) 177 Cal.App.3d 569, 572, 223 Cal.Rptr. 14; Estate of Black, supra, 160
Cal.App.3d at p. 587, 206 Cal.Rptr. 663; Estate of Kazian (1976) 59 Cal.App.3d 797, 802, 130 Cal.Rptr. 908.) FN6
FN6.In 1989, the Legislature enacted a series of statutes that codified much of the law governing enforcement of no
contest clauses. (Stats.1989, ch. 544, § 19, p. 1825.) These statutes were repealed and reenacted the following year.
(Stats.1990, ch. 79, § 14, operative July 1, 1991.) Included in these reenacted statutes is a codification of the principle
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that a no contest clause is generally enforceable against a beneficiary who brings a contest within the terms of the
clause (Prob.Code, § 21303[subject to certain exceptions not applicable in this case] ), and the principle that in deter-
mining the intent of a testator or other transferor, a no contest clause shall be strictly construed (id., § 21304).
“Whether there has been a ‘contest’ within the meaning of a particular no-contest clause depends upon the cir-
cumstances of the particular case and the language used.” (Estate of Watson, supra, 177 Cal.App.3d at p. 572,
223 Cal.Rptr. 14; Estate of Lindstrom, supra, 191 Cal.App.3d at p. 381, 236 Cal.Rptr. 376; Estate of Black, supra,
160 Cal.App.3d at p. 587, 206 Cal.Rptr. 663.) “[T]he answer cannot be sought in a vacuum, but must be gleaned
from a consideration of the purposes that the [testator] sought to attain by the provisions of [his] will.” (Estate of
Kazian, supra, 59 Cal.App.3d at p. 802, 130 Cal.Rptr. 908.)Therefore, even though a no contest clause is strictly
construed to avoid forfeiture, it is the testator’s intentions that control, and a court “must not rewrite the [testa-
tor’s] will in such a way as to immunize legal proceedings plainly intended to frustrate [the testator’s] unequivo-
cally expressed intent from the reach of the no-contest clause.” (Ibid.)
With these principles to guide us, we must determine whether the filing of the proposed state complaint or the
proposed federal complaint would constitute a contest within the meaning of the no contest clause contained in
the Frank Burch Family Trust instrument. These complaints are described in further detail below.
Marlene’s proposed state complaint names as defendants the trustees and beneficiaries of the Frank Burch Family
Trust and its subsidiary trusts. This complaint alleges in relevant part that 100 percent of the stock in Pacific Coast
and 100 percent of the proceeds of various life insurance policies purchased by Pacific Coast’s pension plan were
purportedly transferred into the Frank Burch Family Trust. It further alleges that under California community
property law, Marlene is the owner of one-half of these assets. The complaint seeks the return of her property
through various causes of action including declaratory relief, conversion and partition.
Marlene’s proposed federal complaint names only the Pacific Coast pension plan and its administrators as defendants.
This complaint alleges that, under the Employee Retirement Income Security Act of 1974 (29 U.S.C. § 1001 et seq.)
(hereafter ERISA) and the terms of the pension plan, Marlene is entitled as a surviving spouse to receive 100 percent
of the pension plan death benefits, but that the plan administrators have wrongfully refused to pay any benefits to
her. In the alternative, the complaint alleges that pursuant to community property law, Marlene is entitled to 50 per-
cent of all of the death benefits and to 50 percent of the benefits payable under the life insurance policies purchased
by the pension plan. Finally, the complaint alleges that the administrators breached their fiduciary duties under the
federal act by unlawfully converting the disputed benefits and wrongfully failing to provide certain documentation.
In ascertaining Frank’s intentions, we look first to the terms of his trust instrument. Those pertinent to our inquiry
include: (1) the preliminary recitals, which describe the trust estate; (2) article III, which describes the division
of the trust estate upon the trustor’s death and directs its distribution; and (3) paragraph 12 of article IX, which
contains the no contest clause. These provisions stipulate as follows.
The preliminary recitals provide in relevant part that the trustee “agrees to hold and administer the property listed
on the attached ‘Schedule A’ and any other property added to the Trust Estate according to the terms of the Trust
created by this instrument. Trustor states that the property subject to this Trust is his separate property and that
his interest therein, and in the proceeds and income therefrom, shall remain his separate property. All property now
or hereafter subject to this Trust shall constitute the Trust Estate and shall be held, managed and distributed as
hereinafter provided.”
Article III directs that upon the trustor’s death, the trustee shall, after making certain specified distributions and
payments, divide the residue of the trust estate into six separate trusts. Pursuant to this article, 20 percent of the
trust estate goes to the marital trust and the remaining 80 percent is split among four other trusts designated for
the benefit of Frank’s children, his grandchild, and three children of his deceased sister. Proceeds from certain
specified life insurance policies go to a trust designated for the benefit of Frank’s mother.
Finally, the no contest clause provides in pertinent part: “In the event that any beneficiary under this Trust ··· seeks to
obtain in any proceeding in any court an adjudication that this Trust or any of its provisions ··· is void, or seeks
otherwise to void, nullify or set aside this Trust or any of its provisions, then the right of that person to take any
interestgiven to him or her by this Trust shall be determined as it would have been determined had such person pre-
deceased the execution of this trust instrument without issue.”
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Following the rule of strict construction (Estate of Watson,supra, 177 Cal.App.3d at p. 572, 223 Cal.Rptr. 14),we
must ascertain from these provisions whether Frank unequivocally intended that Marlene would forfeit the dis-
tribution provided for her under the trust instrument in the event that she decides to pursue her interests as a
surviving spouse against the trust estate. If this intention plainly appears, then it must be concluded that Marlene’s
proposed actions would trigger the no contest clause.
It is reasonably clear from the recitals that the trustor intended for any and all property transferred to the trust
to be subject to the distribution scheme set forth at article III of the trust instrument. Significantly, the recitals
specifically state that the trustee is to hold and administer “the property listed on the attached ‘Schedule A’ and
any other property added to the Trust Estate according to the terms of the Trust,” and that “[a]ll property now
or hereafter subject to this Trust shall constitute the Trust Estate and shall be held, managed and distributed
as hereinafter provided.”
It is also reasonably clear from the trust terms that the trustor intended to dispose of the trust estate in whole,
and that he intended to put his surviving spouse to an election between taking the distribution provided for
her under the trust, or alternatively, renouncing that distribution and taking against the trust estate pursuant
to her independent legal rights. This intention appears from the declaration in the recitals that the property
subject to the trust is and is to remain the trustor’s “separate property.” (See Estate of Wolfe (1957) 48 Cal.2d 570,
574-575, 311 P.2d 476;Estate of Vogt (1908) 154 Cal. 508, 512, 98 P. 265;Estate of Roach (1959) 176 Cal.App.2d 547,
552-553, 1 Cal.Rptr. 454.)
As Witkin explains, “if the testator refers to the property bequeathed or devised in general terms without
identifying it as separate or community, it may be inferred that he intended only to dispose of his own inter-
est (his separate property and one-half the community property), and no election is necessary, no matter
how liberal the provision is for the wife. [Citations.]” (12 Witkin, Summary of Cal. Law (9th ed. 1990) Wills
and Probate, § 55, pp. 93-94.) On the other hand, “if the testator declares that all the property is his sepa-
rate property, thus clearly indicating a belief that he is disposing of the entire estate, election is required.
[Citations.] ‘It is of no concern that he was mistaken in his belief that the wife had no community interest
in the property devised. His manifest intention to devise the estate as an entirety, and irrespective of any
right which might be asserted on behalf of the marital community, is the controlling factor.’ [Citation.]”
(12 Witkin, supra, § 55, p. 94.)
In Estate of Wolfe,supra, 48 Cal.2d 570, 311 P.2d 476, we described the operative principle this way: “If the tes-
tator purported to dispose of both his and his spouse’s share of the community property, and it appears that the
intent of the testator will be thwarted by giving literal effect to the will while recognizing the community prop-
erty rights of the surviving spouse, an election should be required. The purpose of the election is to adjust the
distribution of the property under the will to conform to the express or implied intention of the testator.”
(48 Cal.2d at p. 574, 311 P.2d 476.) Furthermore, this principle is not limited to community property rights; it is
also applicable to any other kind of property right. ( Estate of Waters (1972) 24 Cal.App.3d 81, 85, 100 Cal.Rptr. 775
[surviving spouse required to elect between taking under the will or asserting her joint tenancy rights to estate
property].)
Although the trust instrument contains a separate property declaration that evinces an intention to force an elec-
tion with respect to any asset placed in the trust estate, it is true, as Marlene asserts, that the trust instrument
does not expressly name the Pacific Coast stock, the pension plan benefits or the insurance policies as being
part of the trust estate. FN7 The instrument refers to a list of assets on “Schedule A,” but that schedule was evi-
dently never prepared.
FN7. We note two exceptions in this regard. The trust instrument specifically provides that the subsidiary trust
in favor of Frank’s mother is to be funded with proceeds from the trustor’s life insurance policies issued by
InterAmerican Life Insurance Company and New Jersey Life Insurance Company in the sums of $250,000 and
$50,000, respectively. Therefore, the no contest clause would indisputably be triggered to the extent Marlene
pursues her alleged community interests in the proceeds of these policies.
In this case, the trustor’s intentions are clear, even though the disputed assets were not listed in the trust instru-
ment. First, as the trial court recognized, “[t]here was no requirement under decedent’s trust agreement that any
or all trust property be reflected in a ‘Schedule A,’ since the trust corpus by definition included ‘any other property
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10 ONLINE COMPANION TO ACCOMPANY ELDER LAW
added to the Trust Estate.’ ” Second, Frank apparently arranged to have each of the disputed assets added to the
trust estate before his death, thus reflecting deliberate action to place each of them squarely within the terms
and conditions of the trust.
The extrinsic evidence in this case confirms our interpretation of the trust’s terms.FN8This evidence is uncontro-
verted that Frank transferred the disputed assets to the trust, that he intended that the trust dispose of these assets,
and that any assertion of independent rights to these assets by Marlene would trigger the no contest clause.
FN8. Evidence of the circumstances surrounding the execution of the trust instrument is properly admissible to
ascertain its meaning and intent. (Prob.Code, § 6111.5; see also Estate of Russell,supra, 69 Cal.2d at pp. 206-207,
212, 70 Cal.Rptr. 561, 444 P.2d 353; Estate of Basore (1971) 19 Cal.App.3d 623, 630, 96 Cal.Rptr. 874.) Contrary
to the assertion made by the dissent (dis. opn. of Kennard, J.), post, at p. 185 of 27 Cal.Rptr.2d, p. 112 of 866
P.2d resort to extrinsic evidence is appropriate in construing no contest clauses. As one authority relied upon by
the dissent acknowledges, “if it is relevant to the clause in question, virtually all evidence of the circumstances
surrounding the will’s execution may well be admissible to show the existence of an ambiguity and to help con-
strue it.” (Garb, The In Terrorem Clause:Challenging California Wills (1979) 6 Orange County Bar J. 259, 262.)
A declaration offered by one of the trustees of the trust establishes that Frank transferred to the trust all of the
issued and outstanding shares of stock of Pacific Coast, and that he designated the trust as beneficiary of
the death benefits paid by the pension plan. The declaration also establishes that Frank purchased nine life insur-
ance policies through the pension plan, and designated all but one of them to be paid either to the trust or to
persons other than Marlene.
Another declaration submitted by the attorney who implemented Frank’s estate plan provides some context to
Frank’s execution of that plan. According to the attorney, it was important to Frank that his estate plan provide
for his living blood relatives, namely, his three children and a grandchild from a previous marriage, his mother,
and the three children of his deceased sister. In connection with the estate planning, Frank discussed with this
attorney which assets were to be transferred to the trust, and identified, among other things, the Pacific Coast
stock, various insurance policies and his interest in the pension plan.
The attorney further stated that Frank anticipated Marlene would assert claims against the assets that would con-
stitute the trust estate, even though he considered them his separate property. Therefore, Frank intended “to pro-
vide generously for Marlene with the hope that this would preclude claims by her upon his estate.” In accordance
with Frank’s plans, the trust instrument provided Marlene a distribution that would include an expensive home,
a yacht, a Mercedes Benz automobile and income for life on a 20 percent share of the trust estate remaining after
certain specified distributions were made. The instrument also contemplated that the property and interests left
to Marlene would be free from death taxes.
Finally, the attorney disclosed that Frank was aware he could not deny Marlene the legal right to assert claims
against his trust, or the assets transferred thereto. He added, however, that Frank intended, by the creation of his
elaborate estate plan, in combination with the separate property declaration and the no contest clause, to deny
Marlene the right to assert ownership claims against the property transferred to the trust, while at the same time
retaining the generous benefits which were conditionally provided for her under that same instrument.
In the proceedings below, Marlene submitted no evidence to controvert the declarations of the trustee or the
attorney. Although Marlene makes no present attempt to challenge the admissibility or credibility of their state-
ments,FN9she argues it is unclear whether Frank intended that the trust convey the disputed assets in light of the
following three facts. First, Schedule A was never completed and Frank expressed some uncertainty to the attor-
ney regarding what assets were to be included in the trust. Second, Frank’s will, which was executed on the
same day as the trust instrument, contained a declaration that he intended to dispose of “all property to which
I am entitled by law to dispose of by will.” Third, Frank created and controlled Pacific Coast’s pension plan and
gave her, as an eligible spouse, greater benefits thereunder than required by ERISA. He also never reduced these
benefits although he made other changes to the plan, and the plan was not mentioned in either the trust instru-
ment or the will.
FN9. In her opening brief on the merits, Marlene merely notes, without citation to authority, that the probate
court erred in overruling her objections to the declarations submitted by the trust.
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