1

Filed 2/24/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

MARK ROTH,

Plaintiff and Appellant,

v.

PHILIP M. JELLEY, as Trustee, 

etc., et al.,

Defendants and Respondents.

 A155742

 (Contra Costa County

 Super. Ct. No. MSP1700555)

Petitioner Mark Roth (Mark) petitioned the probate court to be 

recognized as the beneficiary of a trust created by his grandfather pursuant 

to the default distribution provision of his grandfather’ will. The probate 

court rejected the petition on the ground that an order made in the probate of 

the grandfather’s estate in 1991 (which we refer to as the “1991 Decree”)

eliminated Mark’s interest in the trust and was binding on him, even though 

he received no notice of the court proceeding that resulted in the 1991 Decree. 

This appeal presents the question whether Mark had a property interest in 

the testamentary trust created by his grandfather such that he had a due 

process right to notice and an opportunity to be heard before the probate 

court could enter the 1991 Decree that eliminated his interest in the trust. 

Mark’s grandfather, McKie Roth Sr. (McKie Sr.) created a trust in his 

will for the benefit of his wife Yvonne Roth (Yvonne) during her life and 

granted her a testamentary power of appointment over the remainder. The 
2

will provided a default distribution scheme in case Yvonne did not exercise 

her appointment power, under which McKie Sr.’s three adult children from a 

prior marriage and the Yvonne’s one adult son from a prior marriage would 

each take a one-quarter share of the remainder of the trust, with the proviso 

that, if an adult child did not survive Yvonne, then that child’s surviving 

issue would take that child’s share per stirpes. Thus, under the will, the 

issue of each of the four adult children had a contingent remainder interest in 

the trust, subject to divestment by Yvonne’s exercise of her appointment

power. 

When McKie Sr. died in 1988, his three adult children raised claims 

against their father McKie Sr.’s estate unrelated to the trust; they eventually 

settled their claims with McKie Sr.’s estate, Yvonne (his surviving wife), and 

the estate executor. One of the terms of the settlement was that the McKie 

Sr.’s three adult children disclaimed any interest in the trust. 

In 1991, the probate court issued a decree of final distribution of the 

McKie Sr.’s estate—the 1991 Decree—which included language changing the 

default distribution of the trust upon Yvonne’s death, ostensibly based on the 

terms of the settlement. The 1991 Decree specified that the remainder of the 

trust was to be distributed solely to Yvonne’s son or his surviving issue in 

case of default (i.e., failure of Yvonne to exercise her testamentary power of 

appointment). But McKie Sr.’s grandchildren (specifically, Mark and the 

other then-living issue of McKie Sr.’s three adult children) were not given 

prior notice of the 1991 decree, even though the decree eliminated their 

contingent interests in the remainder of the trust. Yvonne died in 2016 

without having exercised her testamentary power of appointment. 

Mark’s father McKie Roth Jr. (McKie Jr.) predeceased Yvonne. Mark

petitioned the probate court to be recognized as a beneficiary of the trust
3

pursuant to the default distribution provision of McKie Sr.’s will. He 

asserted the 1991 Decree was void because he never received notice of the 

proceeding that culminated in the 1991 decree. 

At the parties’ agreement, the probate court decided the following 

dispositive issue in a bifurcated proceeding: was the 1991 Decree binding on 

the parties? The court determined the 1991 Decree was binding even though 

Mark received no prior notice because, in the court’s view, Mark had no 

cognizable property interest in the trust. 

We conclude, however, that Mark did have a property interest in the 

trust in 1991 and that the 1991 Decree adversely affected his interest. Since

it is not contested that Mark’s existence and address were reasonably 

ascertainable at the time, due process required that Mark be given notice of 

the proceeding that resulted in the 1991 Decree and an opportunity to object. 

Because Mark was not given such notice, the 1991 Decree is void. 

Accordingly, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

McKie Sr. and his wife Marion Roth had three children, McKie Jr.

(Mark’s father), Diane Roth Lauer (Diane), and Joanne Roth Gibbons

(Joanne). Marion Roth died in 1966. 

After Marion died, McKie Sr. married Yvonne, who had one son from a 

prior marriage, respondent James Barron (James). 

McKie Sr. died in 1988. 

The MWR Will and the FYR Trust

McKie Sr. left a will and codicil (MWR Will), which created two trusts, 

the “First Yvonne Roth Trust” (FYR Trust) and the “Second Yvonne Roth 

Trust” (SYR Trust) with respondent Philip M. Jelley, an attorney, named as

trustee. In both trusts, the trustee was to pay the net income to Yvonne, and 
4

portions of the principal could be distributed to Yvonne as necessary for her 

maintenance, support, and comfort and as needed in an emergency. This 

appeal involves the FYR Trust only.

The FYR Trust was described in the fourth paragraph of the MWR 

Will. Subparagraph (c) of the fourth paragraph specified that the trust would

terminate upon Yvonne’s death, and Yvonne was granted a testamentary 

power of appointment over the balance of the trust. Subparagraph (d)

provided a default scheme of distribution of the balance of the trust at its 

termination if Yvonne did not exercise her testamentary power of 

appointment.

The relevant language reads, “Any portion of the principal and accrued 

and undistributed income of this trust not validly and effectively appointed 

by my said wife pursuant to subparagraph (c), shall, upon the death of my 

said wife, be distributed in equal portions to McKie W. Roth, Jr., Diane Roth 

Lauer, Joanne Roth Gibbons and James Barron, provided however if such 

persons should not be then living, but leave issue surviving them, then such 

issue shall take per stirpes, the portion that such individual would have 

taken if then living . . . .” 

Probate of McKie Sr.’s Estate

In 1988, Jelley filed a petition for probate of the MWR Will and to be 

appointed executor of McKie Sr.’s estate. Notice of the probate petition was 

served by mail to Yvonne, McKie Jr., Diane, Joanne, James, William Henry 

Barron (James’s son), and James C. Soper (the person named as alternate 

executor in the MWR Will). These persons’ names, their relationships to 

McKie Sr., and their addresses were listed in the MWR Will. 

Mark, who was over the age of 21 when McKie Sr. died, was not named 

on the proof of service of the notice of the probate petition. 
5

Notice of the probate petition was also given by publication. 

Settlement Agreement

Prior to his death, McKie Sr. served as trustee of the Marion Roth 

Trust, whose beneficiaries were McKie Sr., McKie Jr., Diane, and Joanne. 

When McKie Sr. died, McKie Jr. became the successor trustee. In July 1988, 

McKie Jr. filed a creditor’s claim against McKie Sr.’s estate. By 1990, there 

were various claims and objections pending in the probate of McKie Sr.’s 

estate and the separate probate of the Marion Roth Trust and two lawsuits 

alleging legal malpractice against Jelley and his law firm pending in Marin 

County. These claims, objections, and lawsuits were based on allegations of 

misconduct by McKie Sr., his attorney Jelley and Jelley’s law firm (among 

other things) and included objections to the final account and report of 

trustee McKie Sr. in the Marion Roth Trust probate case and objections to 

the first account and report of executor Jelley in the McKie Sr. estate probate 

case. 

In April 1990, the disputants reached a settlement embodied in a 

document titled “Settlement and Release Agreement” (Settlement 

Agreement). The signatories were, on one side, McKie Sr.’s adult children,

McKie Jr., Diane and Joanne (together referred to as “Claimants” in the 

Settlement Agreement) and, on the other side, Jelley, his law firm and 

Yvonne (“Respondents”). Claimants settled and released all pending claims 

related to McKie Jr.’s alleged misconduct in managing Claimants’ mother’s 

trust (the Marion Roth Trust), as well as all other claims known or unknown 

against Respondents in exchange for consideration that included payment of 

$ 2,250,000. The payment was from McKie Sr.’s estate (not from the FYR 

Trust) and was paid in part to Diane as a beneficiary of the Marion Roth 
6

Trust and in larger part to McKie Jr. as the successor trustee of the Marion 

Roth Trust. 

The Settlement Agreement included a term regarding Claimants’

interest in the FYR Trust. Paragraph 2.a.(i) of the agreement provided, 

“Claimants irrevocably disclaim and renounce all other interest in the Estate 

of McKie W. Roth, Sr., and the First Yvonne Roth Trust . . . .” The agreement 

also provided, “All of the terms and provisions contained herein shall inure to 

the benefit of and shall be binding upon Claimants and Respondents and 

their respective legal representatives, successors and assigns.” 

The probate court approved the Settlement Agreement and authorized 

the executor to pay out of McKie Sr.’s estate $2,250,000 according to the 

terms of the Settlement Agreement. There is no record evidence that a copy 

of this order was formally served on Mark, and Mark denies being served 

with the order. 

1991 Decree

In August 1991, Jelley as executor of McKie Sr.’s estate filed his third 

and final account and report and petition for final distribution of the estate

(Final Account and Petition for Distribution). In the Final Account and 

Petition for Distribution, Jelley averred that the bulk of the estate was 

distributable “upon the terms set forth in paragraphs FOURTH [describing 

the FYR Trust] and SIXTH of the [MWR W]ill . . ., as modified by paragraphs

2.a.(i) and 2.a.(iv) of the Settlement and Release Agreement.”1 (Italics 

1 As we have seen, McKie Sr.’s three adult children disclaimed any 

interest in the FYR Trust in paragraph 2.a.(i) of the Settlement Agreement. 

In paragraph 2.a.(iv), they promised (1) not to assert any claims against the 

McKie Sr. estate, (2) not to object to the second account and final report of the 

executor in the McKie Sr. estate, and (3) as to the SYR Trust, not to object to 

any account or other proceeding except as provided elsewhere in the 

agreement (regarding administration of the SYR Trust only). 
7

added.) However, no proposed modified terms of the FYR Trust were 

included in the Final Account and Petition for Distribution. 

Mark was not named on the proof of service for the hearing on the 

Final Account and Petition for Distribution.

In September 1991, the probate court approved an order prepared by 

Jelley’s law firm titled “Order Settling Third and Final Account and Report of 

Executor, Approving Payment of Balance of Statutory Compensation to 

Executor and His Attorneys and For Final Distribution of the Estate.” This 

is the 1991 Decree that Mark claims is void due to lack of notice. 

The 1991 Decree stated the distribution of assets was based on “the 

terms of the decedent’s will, the Settlement and Release Agreement and the 

laws of the State of California.” Subdivision IV of the 1991 Decree described 

the terms of the FYR Trust (to which estate assets were distributed). The 

first three subparagraphs generally tracked the language of the MWR Will. 

Subparagraph (d) of Subdivision IV, however, varied from paragraph 

fourth, subparagraph (d) of the MWR Will, the default distribution provision. 

It stated the following term of the FYR Trust: “(d) Any portion of the 

principal and accrued and undistributed income of this trust not validly and 

effectively appointed by Yvonne Roth pursuant to subparagraph (c), shall, 

upon the death of Yvonne Roth, be distributed to James Barron, or, if James 

Barron shall not be then deceased leaving descendants then living, to the 

then living descendants of James Barron per stirpes . . . .” Thus, under the 

1991 Decree, if Yvonne did not exercise her testamentary power of 

appointment, the remainder of the FYR Trust would be distributed to James 

or, if he predeceased Yvonne, to his issue alone upon Yvonne’s death. 

There is no record evidence that a copy of the 1991 Decree was formally 

served on Mark, and Mark denies being served with the decree. 
8

Declination of Exercise of Power of Appointment

On August 12, 2005, Yvonne signed a document called “Declination of 

Exercise of Power of Appointment” (Yvonne’s declination). It was prepared 

by James Soper, identified as the attorney for Jelley as “Trustee,” and was

captioned for filing in the McKie Sr. estate probate case. Yvonne’s 

declination referred to and quoted from the 1991 Decree as the source of her 

testamentary power of appointment and did not mention the MWR Will. It 

provided, “Yvonne Roth does hereby decline to exercise her power of 

appointment set forth in the [1991] Decree . . . .” 

The Current Petition

McKie Jr. predeceased Yvonne, leaving Mark as his sole issue. In 

October 2016, Yvonne died without having exercised the power of 

appointment over the remainder of the FYR Trust. McKie Sr.’s other 

children, Diane and Joanne, survived Yvonne. 

Mark Petitions to be Recognized as a Beneficiary of the FYR Trust

In April 2017, Mark filed a petition in the matter of the FYR Trust. 

Mark sought orders directing the trustee to recognize him as a beneficiary of 

the trust and imposing a constructive trust on one-half of any distributions of 

the residue already made, among other things. 

Mark alleged that, as a consequence of the Settlement Agreement, he 

and James are now the only two vested beneficiaries of the residue of the 

FYR Trust pursuant to the default distribution provision of the MWR Will

(Diane and Joanne having disclaimed their interest in the trust). He 

asserted the 1991 Decree was void to the extent it “purports to affect [his] 

interests” in the FYR Trust on grounds of (1) “lack of due process rights to 

notice and opportunity to be heard” and (2) “failure to comply with Cal. 
9

Probate Code §§ 15403, et seq.,” which govern the modification or termination 

of an irrevocable trust such as the FYR Trust. 

Jelley and James Respond to the Petition

Jelley as trustee and James filed separate answers, objections, and 

responses. In his answer, Jelley alleged the FYR Trust was created by the 

1991 Decree and denied Mark was a beneficiary of the trust. Jelley and 

James both asserted as affirmative defenses laches, estoppel, waiver, unjust 

enrichment, and lack of standing. 

The Parties Agree to Bifurcation

At a hearing on April 3, 2018, Mark, Jelley, and James agreed to 

bifurcate the trial of certain issues raised by Mark’s petition. The parties 

framed the first issue to be decided as whether the parties were bound by the

1991 Decree. The parties together filed “Stipulated Facts re Bifurcated Issue 

as to Whether 1991 Decree of Distribution Binds Parties,” which included

documents related to the probate of McKie Sr.’s estate. According to the 

probate court, the parties “agreed to brief the issues and submit them on oral 

argument as a matter of law.” 

The Probate Court Rules Against Mark

The court issued its decision in a written “Order Denying Mark Roth’s 

Petition for Orders Regarding the First Yvonne Roth Trust” on September 27, 

2018. It rejected Jelley and James’s argument that the FYR Trust did not 

exist until it was funded by the 1991 Decree and determined instead that the 

FYR Trust came into existence when McKie Sr. died in 1988. The court 

further recognized that “Mark’s future interest as a contingent remainder 

beneficiary also came into existence when McKie Sr. died” and that “Mark’s 

interest could not be defeated by McKie Jr.’s forfeiture of his intermediate or 

precedent interest,” citing Estate of Lefranc (1952) 38 Cal.2d 289, 297.
10

But, the court found, “McKie Jr. received his interest in the trust” “[b]y 

way of the Settlement Agreement,” and “because McKie Jr. received his 

interest under the trust while he was alive (before he predeceased Yvonne), 

Mark’s contingent remainder interest did not vest.” 

The court next observed, “Because he may have had a property right 

based on his future contingent remainder interest in the trust, Mark should 

have objected at the time of the Court’s approval of the Settlement 

Agreement [in 1990], or before the issuance of the 1991 [Decree].” The court 

went on to consider whether Mark received sufficient notice of the McKie Sr. 

estate probate proceedings “from a due process perspective.” 

First, the court found Mark was not statutorily entitled to personal 

notice of the hearing on the 1991 Decree under Probate Code section 11000.2 

Second, it determined that due process considerations did not entitle Mark to

personal notice of the hearing either. The court believed Mark “had no more 

than a unilateral expectation to a share of the [FYR] Trust” and “[t]hat 

expectation never amounted to a legitimate claim of entitlement to it because 

his interest did not vest for lack of . . . two conditions precedent.”3 It 

2 Probate Code section 11000 provides that notice of a hearing on an 

account of an estate “shall” be given to “[e]ach known heir whose interest in 

the estate would be affected by the account” and “[e]ach known devisee whose 

interest in the estate would be affected by the account.” (Prob. Code, § 11000, 

subd. (a)(2) and (3).) Here, the probate court reasoned, “Mark’s contingent 

remainder interest in the estate, however, was so far removed from McKie Sr. 

that his interest could be affected only by the account, potentially, and did 

not amount to an heir whose interest would be affected by the account, 

certainly, as the Legislature intended.” (Further undesignated statutory 

references are to the Probate Code.) The probate court further found that, as 

a contingent remainder beneficiary, Mark was not statutorily entitled to 

personal notice under sections 1201, 1202, and 1206. 

3 The probate court described the two “condition precedents” or 

contingencies that had to occur for Mark to have an interest in the FYR Trust 
11

concluded, “In these circumstances, although he may have had an abstract 

concern in obtaining an inheritance through McKie Jr., Mark did not have a 

property interest sufficient to require the trustee, other beneficiaries, or the 

Court to notice him of the hearing when the orders were issued approving the 

settlement agreement and distributing the estate’s funds, and more 

importantly, approving McKie Jr.’s actions as to his vested interest in the 

trust and estate at that time.” 

Third, the court rejected Mark’s argument that the 1991 Decree 

modified the FYR Trust by changing the default distribution provision 

specified in the MWR Will. The court reasoned that the signatories to the 

Settlement Agreement “did not modify the terms of the testamentary trust. 

Instead, they bargained for the vesting and release of their interests.” 

In its conclusion, the court denied Mark’s petition for an order directing 

the trustee to recognize him as a beneficiary of the trust and other relief. 

DISCUSSION

A. Standard of Review

We review de novo questions of law submitted on stipulated facts. 

(Employers Mutual Casualty Co. v. Philadelphia Indemnity Ins. Co. (2008) 

169 Cal.App.4th 340, 347.) We independently review due process claims 

“because ‘the ultimate determination of procedural fairness amounts to a 

question of law.’ ” (In re Jonathan V. (2018) 19 Cal.App.5th 236, 241.) 

as (1) “Yvonne had to leave property in trust for distribution to McKie Jr.” 

and (2) “McKie Jr. had to outlive Yvonne before receiving his interest in the 

trust,” but “[n]either of these contingencies occurred.” 
12

B. Mark Was Entitled to Notice of the Proceeding that Resulted in the 1991 

Decree as a Matter of Due Process Because the Decree Affected His 

Property Interest in the FYR Trust

Mark contends due process required that he be mailed notice of the 

proposed change to the default distribution provision and an opportunity to 

be heard before the probate court could issue the 1991 Decree because that 

decree affected his property interest in the FYR Trust. Respondents argue

Mark had no due process right to notice because he had no property right in 

the FYR Trust or, alternatively, because his property right was so remote, 

mailed notice was not required. We agree with Mark.

1. Due Process Requires Reasonable Notice of Any Proceeding 

Adversely Affecting a Property Interest

In 1950, the United States Supreme Court in Mullane v. Central 

Hanover Bank & Trust Co. (1950) 339 U.S. 306, 314 (Mullane) “recognized 

that prior to an action which will affect an interest in life, liberty, or property 

protected by the Due Process Clause of the Fourteenth Amendment, a State 

must provide ‘notice reasonably calculated, under all circumstances, to 

apprise interested parties of the pendency of the action and afford them an 

opportunity to present their objections.’ . . . [T]he Court held that published 

notice of an action to settle the accounts of a common trust fund was not 

sufficient to inform beneficiaries of the trust whose names and addresses 

were known. The Court explained that notice by publication was not 

reasonably calculated to provide actual notice of the pending proceeding and 

was therefore inadequate to inform those who could be notified by more 

effective means such as personal service or mailed notice.” (Mennonite Bd. of 

Missions v. Adams (1983) 462 U.S. 791, 795 (Mennonite).) 

In Mennonite, the United States Supreme Court succinctly stated the 

rule, “Notice by mail or other means as certain to ensure actual notice is a 
13

minimum constitutional precondition to a proceeding which will adversely 

affect the liberty or property interests of any party . . . if [that party’s] name 

and address are reasonably ascertainable.” (Mennonite, supra, 462 U.S. at p.

800.) 

In California, courts have applied Mullane in probate matters since at 

least 1968. In Estate of Reed (1968) 259 Cal.App.2d 14, a decedent’s will 

created a trust under which his children Paul and Bessie each received half of 

the income of the trust, the trust was to end upon the death of Bessie, and 

Paul was given the power of appointment over both his half of the income and 

the corpus of the trust at its termination. (Id. at p. 15.) Paul died before 

Bessie, and his will left the remainder of his estate to three named charities. 

After Paul died, the trustee filed a sixteenth account of the trust, which

included a request that the probate court find Paul’s will was ineffective as 

an exercise of the appointment power over the trust. The trustee, however, 

did not give notice of the sixteenth account of the trust to any of the three 

charities named in Paul’s will even though the trustee knew about these 

residuary charity beneficiaries. Following the trustee’s request, the probate

court in 1954 made an order finding Paul failed to exercise his power of 

appointment. In 1967, after Bessie died and the trust terminated, the three 

named charities moved to vacate the 1954 order, and the probate court 

granted the motion. (Id. at pp. 16–19.) 

The Court of Appeal affirmed, observing that Mullane “on the facts 

before us, clearly holds that the statutory notice cannot be equated with due 

process.” (Estate of Reed, supra, 259 Cal.App.2d at p. 20.) The court

explained, “Mullane discusses at some length the in rem character of some 

judgments but holds that a proceeding to determine the rights of 

beneficiaries under a trust is not embraced within the in rem classification 
14

and that when the rights of beneficiaries to a trust are inevitably affected, they 

are entitled to notice and are indispensable parties. The mere statement of 

this principle as a general proposition, is to accept it.” (Id at p. 21, italics 

added.) “At the very least, the beneficiaries [i.e., the three charities] in the 

present case were entitled to notice ‘reasonably calculated’ to reach them. . . .

The statutory notice which was given was in effect no notice to respondents.”

(Id. at p. 22, fn. omitted.) The court concluded, “the failure of the trustee to 

join the respondents and/or give more adequate notice to enable them to 

defend their interests in the trust resulted in a void order.” (Ibid., italics 

added.)

In 1975, an appellate court citing Mullane stated, “The United States 

Supreme Court has now made it clear that blind labeling of probate 

proceedings as ‘in rem’ does not satisfy constitutional requirements of due 

process. Those requirements mandate that ‘notice reasonably calculated, 

under all the circumstances, to apprise interested parties of the pendency of 

the action and afford them an opportunity to present their objections. . . .’ is 

necessary to meet constitutional standards.” (Estate of Lacy (1975) 54 

Cal.App.3d 172, 187.)4

4 The United States Supreme Court itself applied Mullane/Mennonite

due process principles in the probate context in Tulsa Professional Collection 

Services, Inc. v. Pope (1988) 485 U.S. 478. In that case, the court recognized 

that an unsecured creditor’s claim against an estate was an intangible 

property interest protected by the Fourteenth Amendment and that statutory 

notice of the debtor’s probate by publication alone did not necessarily comply 

with due process. As to known or reasonably ascertainable creditors, actual

notice of the debtor’s probate proceeding was required for a state nonclaims 

statute to satisfy due process. (Id. at pp. 480–481, 485–490.) 
15

2. Mark Had a Property Interest in the FYR Trust

As we have seen, the MWR Will created the FYR Trust, granted 

Yvonne a testamentary power of appointment over the remainder of the 

trust, and provided a default distribution if Yvonne did not exercise her 

testamentary power of appointment. In case of default, the MWR Will

provided that the remainder “shall, upon the death of my said wife, be 

distributed in equal portions to McKie W. Roth, Jr., Diane Roth Lauer, 

Joanne Roth Gibbons and James Barron, provided however if such persons 

should not be then living, but leave issue surviving them, then such issue 

shall take per stirpes, the portion that such individual would have taken if 

then living . . . .” 

We agree with the probate court that the FYR Trust came into 

existence at the death of McKie Sr. pursuant to the MWR Will and that 

Mark’s “future interest as contingent remainder beneficiary also came into 

existence when McKie Sr. died.” (See Ludwicki v. Guerin (1961) 57 Cal.2d 

127, 131–132 [if a will “creates an express trust, the legal title of the trustee 

and the equitable title of the beneficiary vest as of the date of death” of the 

testator]; (Estate of Baird (1955) 135 Cal.App.2d 333, 341 [regardless of 

whether their remainder interests were vested or contingent, the interests of 

the remaindermen came into existence on the testator’s death]; Estate of 

Lefranc, supra, 38 Cal.2d at pp. 291, 297 [where income of a testamentary 

trust was to go to the decedent’s niece during her life and, upon the niece’s 

death, contingent remaindermen were to take the balance of a trust, the 

remaindermen held “future interests” that came into existence at the 

decedent’s death]; § 24, subd. (c) [as it relates to a trust, a “beneficiary” 

includes “a person who has any present or future interest, vested or 

contingent”].) 
16

Mark’s property interest in the FYR Trust was contingent, not vested,

because Mark would only take a share of the remainder if certain conditions 

precedent occurred: McKie Jr. had to predecease Yvonne (“not be then living” 

upon Yvonne’s death) and Mark had to survive McKie Jr. (“leave issue 

surviving them”). Further, there had to be some balance left in the trust at 

its termination and Yvonne had to refrain from using her testamentary 

power of appointment. Mark’s interest was future, not present, because he 

could only take a share of the remainder upon Yvonne’s death in the future.

But we reject the probate court’s determination that Mark “had no 

more than a unilateral expectation to a share of the [FYR] Trust.” Mark had 

an actual property interest in the trust as set forth in the MWR Will. Mark’s 

property interest was contingent and subject to divestiture if Yvonne 

exercised her testamentary power of appointment, but it was more than a 

“mere unilateral expectation” as claimed by respondents. First, “[t]he law

has long recognized that a contingent future interest is property [citation] no 

matter how improbable the contingency” (In re Marriage of Brown (1976) 15 

Cal.3d 838, 846, fn. 8), and “a contingent remainder is an estate and not a 

mere expectancy” (Estate of Zuber (1956) 146 Cal.App.2d 584, 591). Second, 

takers in default (i.e., persons specified by a donor of a power of appointment 

to take property in default of the appointment) hold property interests even 

though “their interests are subject to complete divestment” through exercise 

of a power of appointment. (Ammco Ornamental Iron, Inc. v. Wing (1994) 26 

Cal.App.4th 409, 418-419 [“persons in existence, who are specifically 

designated in a trust instrument to take in default of the exercise of a power 

of appointment by the holder of the preceding estate, are beneficiaries of that 

trust and acquire vested remainder interests, although their interests are 

subject to complete divestment”]; see § 672, subd (a) [“if the powerholder of a 
17

discretionary power of appointment fails to appoint the property, releases the 

entire power, or makes an ineffective appointment, in whole or in part, the 

appointive property not effectively appointed passes to the person named by 

the donor as taker in default”].) Thus, Mark’s contingent future interest in 

the remainder of the FYR Trust created by the MWR Will upon McKie Sr.’s 

death was a cognizable property interest, not a mere expectancy, and this 

property interest did not disappear simply because it was subject to complete 

divestment if Yvonne chose to exercise her testamentary power of 

appointment. 

3. The 1991 Decree Adversely Affected Mark’s Property Interest

If a proceeding will “adversely affect” a person’s property interest, due 

process requires that the person be given notice by mail of the proceeding and 

an opportunity to be heard when the person’s name and address are 

reasonably ascertainable. (Mennonite, supra, 462 U.S. at pp. 795, 800.) That 

the 1991 Decree adversely affected Mark’s property interest in the FYR Trust 

seems undeniable. Under the MWR Will, Mark had a contingent future 

remainder interest in the trust, but under the 1991 Decree, he had no 

property interest in the trust. 

Respondents, however, take the position the 1991 Decree did not affect 

Mark’s property interest because Mark lost his interest under the MWR Will

when McKie Jr. signed the Settlement Agreement. Respondents rely on the 

language of the default distribution provision that if the identified adult 

children “should not be then living, but leave issue surviving them, then such 

issue shall take per stirpes, the portion that such individual would have 

taken if then living.” (Italics added.) Respondents argue that, if McKie Jr. 

had been living, he would not have taken anything because he disclaimed his 
18

interest in the FYR Trust in the Settlement Agreement, and urge that Mark 

likewise must take nothing. 

But the Settlement Agreement did not alter the MWR Will. (Estate of 

Muhammad (1971) 16 Cal.App.3d 726, 736 (Muhammad) [an agreement of 

compromise, even when approved by the court, does not modify the will; the 

rights of parties under the agreement are contractual not testamentary].) 

Nor could the Settlement Agreement bind Mark, who was not a party to the 

agreement. (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 

793, 810–811 [a settlement agreement is a contract, and an essential element 

of any contract is consent]; see Ferraro v. Camarlinghi (2008) 161

Cal.App.4th 509, 542 [stipulated judgment based on settlement agreement 

had no preclusive effect on a stranger to the settlement agreement].) 

The phrase “that such individual would have taken if then living” as 

used in the MWR Will, therefore, cannot reasonably be read to incorporate 

later contracts McKie Jr. may have made promising not to enforce his own 

contingent remainder interest. As Mark argues, “because McKie Sr. could 

not possibly know or control what circumstances might occur beyond his will, 

he obviously meant that Mark might take the share that McKie Jr. would 

take by virtue of the terms of the MWR Will if McKie Jr. was living at the time 

of Yvonne’s death.”5 

5 We also note that the MWR Will provided, “Each and every 

beneficiary under this trust is hereby restrained from and is and shall be 

without right, power or authority to sell, transfer, pledge, mortgage, 

hypothecate, alienate, or in any other manner affect or impair his or her 

beneficial or legal right, title, interest, claim or estate in and to the income 

and principal, or income or principal, of this trust during the entire existence 

thereof . . . .” This spendthrift provision further shows it was McKie Sr.’s 

intent that the beneficiaries of the FYR Trust not be allowed to contract away 

their interests in the trust. That the disclaimers by McKie Jr., Diane, and 

Joanne of their own interest in the FYR Trust are nonetheless enforceable by 
19

Here, we disagree with the probate court’s interpretation of what the 

Settlement Agreement accomplished. It believed McKie Jr. bargained for the 

vesting and release of his interest in the FYR Trust. But McKie Jr. could 

only disclaim his own interest in the FYR Trust, which was a contingent 

remainder. His interest could not vest until the condition precedent of 

surviving Yvonne occurred (and this did not occur). Nor did Yvonne have the 

power to “vest” McKie Jr.’s interest in the trust before she died. She had a 

testamentary power of appointment, meaning she could appoint the

remainder in a will. She could not appoint the remainder while she was 

alive, and she could not exercise her power by any instrument other than a 

will. (See § 630, subd. (a) [“if the creating instrument specifies requirements 

as to the manner, time, and conditions of the exercise of a power of 

appointment, the power can be exercised only by complying with those 

requirements”].) Accordingly, Yvonne and McKie Jr. could not agree to “vest” 

McKie Jr.’s contingent interest in the FYR Trust in a manner that would

destroy Mark’s contingent remainder interest.6 Moreover, the Settlement 

Agreement involved claims McKie Jr., Diane, and Joanne made, as 

the trustee against them is a matter of contract, not because the Settlement 

Agreement modified the terms of the MWR Will. (See Estate of Muhammad, 

supra, 16 Cal.App.3d at p. 736 [where the beneficiaries reached a settlement 

agreement regarding the administration of a testamentary trust, “the rights 

of the parties so far as they rest upon the agreement are contractual and not 

testamentary”].) 

6 McKie Jr. and his siblings agreed that the Settlement Agreement 

would be binding on “their respective legal representatives, successors and 

assigns.” To the extent respondents suggest Mark is bound by the 

Settlement Agreement because he is McKie Jr.’s successor, this suggestion is 

unavailing. Mark does not claim a share of the remainder of the FYR Trust 

as the successor or assignee of McKie Jr.’s property right. Mark’s property 

right in the trust arises directly from the MWR Will. 
20

beneficiaries of the Marion Roth Trust, against McKie Sr. for alleged 

misconduct in managing that trust.7 Mark had nothing to do with these 

claims, which were not related to the FYR Trust. 

In short, we reject respondents’ claim that McKie Jr. effectively signed 

away Mark’s property interest in the FYR Trust through the Settlement 

Agreement. It was only the 1991 Decree, and not the earlier Settlement 

Agreement, that affected Mark’s property interest in the FYR Trust by 

eliminating his contingent remainder interest. 

4. Due Process Required Notice to Mark of the Proceeding That 

Resulted in the 1991 Decree

Because the 1991 Decree adversely affected Mark’s property interest in 

the FYR Trust, he was entitled to notice by mail and an opportunity to be 

heard if his name and address were reasonably ascertainable. (Mennonite, 

supra, 462 U.S. at pp. 795, 800.) 

At the time the 1991 Decree was adopted, Mark was McKie Jr.’s adult 

son and McKie Sr.’s grandson, and Jelley had apparently been dealing with 

disputes with McKie Jr. (and his siblings) for some years. It appears Jelley 

only had to ask McKie Jr. for the names and addresses of his existing 

children in order to provide Mark mailed notice.8 Mark has maintained 

below and on appeal that his existence and whereabouts were either known 

7 Recall that McKie Sr.’s children settled claims against McKie Sr. in 

his capacity as trustee of the Marion Roth Trust, and the payment to them 

was made by McKie Sr.’s estate, not the FYR Trust. Although McKie Sr.’s 

children agreed to give up their contingent remainder interests in the FYR 

Trust as part of the settlement, the primary purpose of the Settlement 

Agreement was to settle claims unrelated to the FYR Trust. 

8 Likewise, Jelley should have ascertained the names and addresses of 

any children of Diane and Joanne since such persons were readily identifiable 

contingent remaindermen and the proposed 1991 Decree adversely affected 

their property interests in the FYR Trust by eliminating their interests. 
21

or reasonably ascertainable, and respondents do not contest this point.

Under these circumstances, we conclude due process required that Mark be 

given mailed notice of the probate hearing that resulted in the 1991 Decree 

and an opportunity to object. 

Respondents claim that even if Mark had a property interest in the 

FYR Trust, Mullane does not require actual notice “given the remoteness of 

his interest.” They rely on the Mullane court’s observation, “Nor do we 

consider it unreasonable for the State to dispense with more certain notice to 

those beneficiaries whose interests are either conjectural or future or, 

although they could be discovered upon investigation, do not in due course of 

business come to knowledge of the common trustee.” (Mullane, supra, 339 

U.S. at p. 317, italics added.) They argue this observation shows Mark was 

not entitled to mailed notice. We are not persuaded.

First, Mark’s property interest in the FYR Trust was not conjectural. 

The MWR Will created a contingent future remainder interest in the trust. 

Second, we do not read Mullane to mean due process notice requirements do 

not apply to holders of future property interests. In Mullane, the appellant 

was “appointed special guardian and attorney for all persons known or 

unknown not otherwise appearing who had or might thereafter have any 

interest in the income of the common trust fund.” (Mullane, supra, 339 U.S. 

at p. 310, italics added.) In this context, when the court spoke of interests 

that were “future,” it likely was referring to persons who did not currently 

have a property interest in the common fund but might acquire an interest in 

the future, not to beneficiaries who currently had future property interests in 

the fund. On the other hand, if the court did mean current beneficiaries with 

future interests were not entitled to mailed notice, the court may have 

determined that, because the common fund involved 113 trusts (id. at p. 309), 
22

it was too burdensome to expect the trustee to attempt to identify all current 

holders of future interests in the fund; but even if that was the court’s 

reasoning, it would not apply here since it cannot be said in this case that it 

would have been burdensome for the trustee to ask the three adult children 

of McKie Sr. for the names and addresses of their own children. In any 

event, we do not think the Mullane court intended to exclude reasonably 

ascertainable holders of future property interests from due process 

considerations. 

That holders of future property interests are entitled to notice as a 

matter of due process is demonstrated by the facts of Estate of Reed. There, 

the court recognized that three charity beneficiaries were entitled to notice of 

Paul’s probate proceeding in 1954 even though the charities at that time held 

only future interests in the remainder of the trust (and their interest only 

became present when Bessie died in 1964). (Estate of Reed, supra, 259 

Cal.App.2d at pp. 16–17, 22.) The court recognized, “[W]hen the rights of 

beneficiaries to a trust are inevitably affected, they are entitled to notice and 

are indispensable parties.” (Id at p. 21.) The court did not differentiate 

property interests that were present from property interests that were future. 

Respondent’s claim fails for another reason. They argue Mullane does 

not require mailed notice given the remoteness of Mark’s interest. But “even 

remote interests are entitled to a measure of due process.” (Estate of 

Sigourney (2001) 93 Cal.App.4th 593, 604, citing Mullane, supra, 339 U.S. at 

pp. 317–318.) In Mullane, the court held that published notice of the 

trustee’s petition for settlement of account was sufficient as to “[t]hose 

beneficiaries represented by appellant whose interests or whereabouts could 

not with due diligence be ascertained.” (Mullane, supra, 339 U.S. at p. 317.) 

Here, on the other hand, respondents do not claim Mark was given 
23

constructive notice by publication of the hearing that resulted in the 1991 

Decree. We believe Mark was entitled to mailed notice under the 

circumstances presented, but there can be no doubt he was entitled to some

form of notice, and he was given none. 

Respondents also argue that, in his capacity as executor of McKie Sr.’s 

estate, Jelley followed the statutory requirements for notice of probate 

proceedings and that should be enough to satisfy due process. But Mullane

itself shows that meeting a state’s statutory notice requirements does not 

automatically satisfy federal due process. (Mullane, supra, 339 U.S. at p. 319

[holding “statutory notice to known beneficiaries” was inadequate as a matter 

of due process].) Citing Mullane, Division Four of this court has observed, 

“Notice given according to statutory ritual will not necessarily meet due 

process standards.” (Dohrmann Co. v. Security Savings & Loan Assn. (1970) 

8 Cal.App.3d 655, 664.) 

Estate of Sigourney, supra, 93 Cal.App.4th 593, is instructive on this 

point. In that case, decedent Sigourney left a will that created a charitable 

trust, named the initial two cotrustees, and provided that the successor 

trustee was to be selected by the American Psychoanalytic Association (APA). 

The executor of Sigourney’s estate filed a petition to construe, amend, and 

conform the will and trust in a manner allegedly consistent with Sigourney’s

intent (petition to amend). The petition asked the probate court to amend the 

charitable trust provisions so that the APA would not have ultimate 

authority to select the successor trustees. But the executor gave no noticeto 

the APA of the petition to amend. In 1989, the probate court granted the 

petition and amended the terms of the charitable trust as proposed by the 

executor. (Id. at pp. 596–598.) 
24

Over 10 years later in 1999, one of the original trustees of the 

charitable trust filed a petition for instructions in the matter of Sigourney’s 

estate regarding appointing a successor trustee. At that point, the APA 

objected and argued the 1989 order amending the terms of the charitable 

trust should be declared void because the APA was not given notice of the 

proceeding that resulted in the 1989 order. (Estate of Sigourney, supra, 93 

Cal.App.4th at pp. 597–599.) The probate court granted the petition over the 

objection, finding the APA was not entitled to statutory notice of the earlier 

petition to amend, and the APA could not collaterally attack the 1989 order. 

(Id. at pp. 600–601.) 

On appeal, the trustee of the charitable trust and the APA raised 

various arguments about whether notice of the proceeding that resulted in 

the 1989 order was required under various statutes. The Court of Appeal 

acknowledged, “None of these statutory paths to a notice requirement leads 

to a clear-cut answer. But constitutional due process principles do.” (Estate 

of Sigourney, supra, 93 Cal.App.4th at p. 603.) The court then held the APA 

was entitled to notice of the 1989 proceedings, finding the APA’s “rights and 

powers” related to the selection of a trustee amounted to a property interest 

protected by due process. (Id. at p. 604.) The court reasoned that, in 1989, 

the executor knew or should have known that the APA would have an 

opportunity to exercise its power to select a cotrustee and that, as a result, 

the executor should have given the APA notice of the proposed amendment. 

The court observed that the lack of notice deprived the APA of the 

opportunity to advocate in favor of its interpretation of the will and argue 

against the “redraft” of the will proposed by the executor. (Id. at p. 605.) The 

court concluded with the observation, “We are constrained to add for the trial 

court’s guidance that a trust can be modified if provisions are ambiguous or if 
25

‘slavish adherence” to the terms of the trust would defeat the primary 

purpose of the trust; but neither former Probate Code section 17200 nor the 

common law of trusts permits the creation of a new agreement under the 

guise of a modification or reformation.” (Ibid.) 

In Estate of Sigourney, the court held that where a will gave an 

organization authority to select future trustees of a testamentary charitable 

trust, that organization had a property interest in the selection power created 

by the will, and the executor could not simply eliminate the organization’s 

interest in the charitable trust under the guise of construing the will without 

providing notice to the organization and opportunity to be heard. Similarly, 

in this case, the executor could not eliminate Mark’s contingent remainder 

interest in the FYR Trust without notice to him under the guise of a petition 

for final distribution of McKie Sr.’s estate. 

Finally, respondents suggest that requiring notice in this case will 

cause great uncertainty for practitioners administering estates because they 

will not be able to rely on compliance with statutory notice requirements to 

meet their due process obligations. We do not share their concern. The 

reason Mark is entitled to notice of the proceeding that resulted in the 1991 

Decree is that the executor of McKie Sr.’s estate used this final order of 

distribution as a vehicle to change the terms of the FYR trust in a manner 

that eliminated Mark’s property interest. If a reasonably ascertainable 

person has a property interest in a testamentary trust, it is not unreasonable 

or onerous to require the executor to give notice to that person when the 

executor seeks a court order in the testator’s probate case that would change

the terms of the trust from those specified in the testator’s will in a manner 

that adversely affects the person’s property interest. 
26

C. The 1991 Decree is Void

In Estate of Reed, supra, the interested charities were not given notice 

of the sixteenth accounting which resulted in the 1954 order finding Paul did 

not exercise his power of appointment. The court concluded the failure to 

give notice to the charities and an opportunity to defend their interests 

meant that the 1954 order was void. (Estate of Reed, supra, 259 Cal.App.2d 

at p. 22.) In Estate of Lacy, supra, the court held that if trustees knew of the 

existence of the remaindermen when the trustees petitioned for approval of 

their account but did not give notice of the hearing to the known 

remaindermen, under Mullane and Estate of Reed, the failure of notice 

“would render void the order approving the act.” (Estate of Lacy, supra, 54 

Cal.App.3d at pp. 188, 190–191.) Here, Mark did not receive notice of the 

proceeding at which the court adopted the 1991 Decree and he had no 

opportunity to object to the elimination of his property interest in the FYR 

Trust. Therefore, the 1991 Decree is void. 

Respondents’ attempts to salvage the 1991 Decree are unavailing. 

They argue the 1991 Decree cannot be collaterally attacked, citing Estate of 

Callnon (1969) 70 Cal.2d 150, 157, in which the court stated, “If the decree 

erroneously interprets the intention of the testator it must be attacked by 

appeal and not collaterally. [Citations.] If not corrected by appeal an

‘erroneous decree . . . is as conclusive as a decree that contains no error.’’ ” 

Estate of Callnon, however, did not involve a claim of voidness based on lack 

of notice. “The doctrine of res judicata is inapplicable to void judgments.” 

(Rochin v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228, 

1239.) A void judgment “ ‘may be attacked anywhere, directly or collaterally, 

whenever it presents itself.’ ” (Andrews v. Superior Court of San Joaquin 

County (1946) 29 Cal.2d 208, 214.) In Estate of Reed, for example, the 
27

charities successfully moved to set aside a 1954 probate court order for 

failure of notice more than a decade later in 1967. (259 Cal.App.2d at p. 18.) 

Respondents next argue Mark’s petition fails because he cannot prove 

he would be entitled to a different decree. The simple answer to this is he 

would have been entitled to a different decree that did not eliminate his 

property interest. Had Mark been given notice of the proposed 1991 Decree, 

he could have objected on the ground the Settlement Agreement could not 

affect his contingent future remainder interest in the FYR Trust and he could 

have argued (successfully) that the proposed change to the default 

distribution provision improperly eliminated his property interest.

Throughout their appellate brief, respondents suggest the equities 

favor affirming the probate court’s order denying Mark’s petition because it 

would accomplish Yvonne’s apparent intention to leave the remainder of the 

FYR Trust solely to James. But respondents offer no authority for the 

proposition that such equitable considerations can excuse the taking away of 

Mark’s property interest without notice and an opportunity to be heard.9 

We also agree with Mark’s response to respondents’ claims of equity. 

He asserts, “[T]he equities are clearly not in Respondents’ favor. On the one 

hand is Mark, a person whose grandfather gave him an interest in the FYR 

Trust residue and which interest was taken from him without his knowledge 

and without him having any opportunity to object. There was no evidence 

before the probate court, and there is none before this Court, that Mark knew 

anything about the 1991 Decree of Distribution or its purported effect on his 

interest until he inquired of Respondent Jelley about that interest after 

9 We further note it was testator McKie Sr.’s expressed intent that, if

Yvonne exercised her power of appointment, she do so “by will duly admitted 

to probate and specifically referring to and exercising this power of 

appointment,” and Yvonne did not do that. 
28

Yvonne’s death. . . . On the other hand is Respondent Jelley, whose law firm 

represented Yvonne at least when she filed the Declination of Exercise of 

Power of Appointment, whose law firm represents James now, and who was 

the petitioner for the original probate proceeding, the petitioner for approval 

of the Settlement Agreement in 1990, and the petitioner for the 1991 Decree 

of Distribution. He is the person who did not give Mark notice of the Petition 

for Final Distribution or the 1991 Decree of Distribution and thereby created 

whatever inequity he claims were thereafter visited upon his clients. It is 

Mr. Jelley who, through the auspices of the probate court, wrongfully took the 

interest that McKie Sr. had given Mark and did so without bothering to give 

notice to Mark and an opportunity to be heard. It is hardly unfair to charge 

him and his clients with the consequences and not reward them for

wrongfully taking Mark’s interest and then hiding such action from him for 

the remainder of Yvonne’s life.” 

DISPOSITION

The order denying the petition filed September 27, 2018, is reversed, 

and the matter is remanded for further proceedings consistent with this 

opinion. Respondents’ request for judicial notice is denied.10 

10 The documents respondents ask us to take judicial notice of are not 

relevant to the issues raised in this appeal. (See Hill v. San Jose Family 

Housing Partners, LLC (2011) 198 Cal.App.4th 764, 770 [declining to take 

judicial notice of a document that was “not relevant to our consideration of 

the issues raised on appeal”]; Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 

Cal.4th 1057, 1063 [matters subject to judicial notice must be relevant to 

issues raised on appeal], overruled on another ground in In re Tobacco Cases 

II (2007) 41 Cal.4th 1257, 1276.) 
29

_________________________

Miller, J.

We concur:

_________________________

Kline, P.J.

_________________________

Stewart, J.

A155742, Roth v. Jelley
30

Trial Court: Superior Court of Contra Costa County

Trial Judge: Hon. John H. Sugiyama

Law Offices of James A. Bush, P.C., James A. Bush, for Plaintiff and 

Appellant

Donahue Fitzgerald LLP, Lawrence K. Rockwell, Daniel B. Newbold, Lorin B. 

Bender, for Defendants and Respondents

A155742, Roth v. Jelley