Filed 3/16/22 Gregge v. Hugill CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

EDWARD B. GREGGE,

Plaintiff and Appellant,

v.

MICHAEL HUGILL, as Trustee, etc., 

Defendant and Respondent.

 H045113

 (Santa Clara County

 Super. Ct. No. 1-12-PR-170606)

William Hugill died in November 2011. He was 94 years old and survived by four 

children and seven grandchildren. In 2012, one of his grandchildren, appellant Edward 

Bennett Gregge (Bennett), filed a petition under Probate Code section 17200 to determine 

the validity of a 2008 amendment to William’s trust.1 The petition was denied after a sixday court trial. Sitting in probate, the trial court found appellant failed to establish that 

William lacked testamentary capacity or was unduly influenced by respondent Michael 

Hugill (William’s son and appellant’s uncle) at the time the amendment was executed.

Bennett argues on appeal that the trial court applied the wrong mental capacity 

standard and made erroneous factual findings. As we will explain, the trial court 

correctly applied the testamentary capacity standard, and the evidence does not compel a 

finding in Bennett’s favor that William lacked capacity to execute the amendment. 

Bennett has failed to demonstrate reversible error, and we will affirm the judgment. 

1 Because this case involves several family members, many sharing the same 

surname, we will use first names to avoid confusion, intending no familiarity or 

disrespect. 
2

I. BACKGROUND

William Hugill and his wife Janice executed an inter vivos trust in 1990, with 

William serving as trustee. Pursuant to the terms of that trust, two separate trusts were 

established when Janice died in 1996—the decedent’s irrevocable trust and the survivor’s 

amendable and revocable trust, both of which would terminate upon the death of the 

survivor. After disbursement of certain personal property, 30 percent of the remainder of 

the survivor’s trust would be distributed in equal shares to William’s four children, 

Patrick, Michael, Marjorie, and Holly. The other 70 percent would be set aside in a 

grandchildren’s trust for college educations, with the remainder of that subtrust to be 

divided among William’s children (30 percent) and grandchildren (70 percent) after the 

youngest grandchild turned 26. Michael was named as a successor trustee to Marjorie.

In 1997, William amended the survivor’s trust, designating a fixed sum to fund the 

grandchildren’s trust. He reallocated the estate residue among his four children, reducing 

Michael’s share to five percent. (Thirty-five percent was to be disbursed to Holly who 

was disabled; and Patrick and Marjorie each would receive 30 percent.) 

In 2000, William amended the survivor’s trust to eliminate Michael’s five percent 

residual share (Patrick’s share was increased by that percentage). In 2001, William 

removed Michael as successor trustee and removed Michael’s children, Kathleen and 

Cameron, as beneficiaries of the grandchildren’s trust. William restored the 

grandchildren’s status one year later, but again removed Cameron as a grandchildren’s 

trust beneficiary in 2005. He also divided the grandchildren’s trust into equal shares for 

his six other grandchildren, to be distributed—half to the grandchild and half to the 

grandchild’s parent who is William’s child—when each grandchild turned 26, except that

Kathleen’s share would be distributed equally to Patrick, Marjorie, and Holly.

William executed a final amendment to the survivor’s trust on June 5, 2008, two 

weeks after he underwent surgery to remove two subdural hematomas. The 2008 

amendment, at issue here, restored Michael as a trust beneficiary on equal footing with 
3

his siblings, and it restored Cameron as a grandchildren’s trust beneficiary on equal 

footing with his sister and cousins. Michael was designated as the first successor trustee, 

and he assumed that role in late 2009 when William resigned the position. William died 

in November 2011. According to a May 2012 accounting filed in the Santa Clara County 

Superior Court, the trust estate approximated $4.9 million.

Shortly after the accounting was filed, Holly’s son Bennett filed a petition under 

Probate Code section 17200 to determine the validity of the June 5, 2008 amendment. 

Bennett alleged that William lacked testamentary capacity and was unduly influenced by 

Michael at the time he executed the amendment, and that Michael unduly benefited from 

the disposition of the trust estate and from his appointment as successor trustee. The 

petition also alleged that Michael had deprived William of proper medical care in 2009 

and 2010. The petition sought a determination that the 2008 amendment was void due to 

lack of testamentary capacity and undue influence. 

The petition was denied after a six-day court trial. In a 22-page statement of 

decision, the court found Bennett failed to establish that William lacked testamentary 

capacity or was unduly influenced by Michael at the time he executed the 2008 

amendment. According to the statement of decision, after Michael and his wife (whom 

William disliked) separated in 2005, Michael and William reconciled, and in 2007 

William told Marjorie he was going to amend the survivor’s trust to restore Michael as a 

beneficiary of the trust residue. In March 2008, William told Michael he was going to 

amend the survivor’s trust “to make everything equal again.” He asked Michael to serve 

as executor of his estate, and said he would have his attorney make the necessary 

changes.

In mid-May 2008, William fell at home in Rancho Mirage and suffered a subdural 

hematoma. He admitted himself to a nearby hospital on May 19. Michael and Holly 

arrived at the hospital on May 21, at which time William asked Michael to call his estate 

planning attorney in Los Angeles to amend the survivor’s trust “to make everything 
4

equal.” Michael placed the call, explained the situation, and put William on the phone. 

The attorney, who was in the midst of a trial, found William unintelligible and suggested 

that Michael contact a local attorney to handle the matter. 

Michael met with a local attorney on May 22. Michael explained that William 

wanted to change his trust to make everything equal again and wanted Michael to serve 

as his executor. The local attorney later spoke with William’s Los Angeles attorney. He 

also visited the hospital, where William, who was scheduled for surgery the next day,

confirmed to him that he wanted to amend the survivor’s trust to distribute the residue 

equally to all his children and distribute the grandchildren’s subtrust equally to his 

grandchildren. William also confirmed that Michael was to be in charge, and Holly was 

to keep a house she and William owned as joint tenants. The attorney confirmed that 

William responded clearly on each point. The attorney concluded that William had 

testamentary capacity and was free from undue influence, and he drafted the estate 

planning documents. He returned to the hospital that evening. After speaking to a nurse

who reported that William was “ ‘not awake, alert and orientated,’ ” and with Michael’s 

agreement, the documents were not presented to William for signature. A social worker 

also advised Michael that documents should not be executed at William’s bedside under 

the circumstances. The social worker described Michael as very agreeable, amicable, and 

not pushy. 

William underwent surgery on May 23, and medical records showed two blood 

clots were successfully removed. Hospital records show William on May 25 awake and 

alert, with “ ‘some expressive aphasia, i.e., inability to speak fluently.’ ” He was 

discharged from the hospital to an acute rehabilitation facility on June 2. 

Physician notes from June 3 showed William “ ‘awake and alert,’ ” with 

“ ‘significant expressive aphasia’ associated with the blood clot.” On June 4 William 

asked Michael about the paperwork to amend his estate plan. Michael told William the 

documents were ready to be signed and notarized, and William said “ ‘Let’s get this thing 
5

done.’ ” On June 5, William signed the 2008 trust amendment and a codicil to his 2000 

will in the presence of a notary, two friends, and Michael. The next day he signed an

amended codicil which included a clause mistakenly omitted from the initial codicil 

nominating Michael in first position to serve as William’s executor. William was 

discharged from the rehabilitation facility later that month.

In August 2008, William flew to Paris where he met a friend. Together, they 

travelled for several weeks in Ireland and France. William dined with Michael and 

Michael’s son Cameron upon his return to Los Angeles. William spent Thanksgiving in 

2008 with Michael, Marjorie, and Holly. In December 2009 William resigned as trustee 

and Michael assumed the position. In the almost three years between executing the 2008 

amendment and his death, William neither amended the trust nor expressed a desire to do 

so.

The trial court found that that Bennett failed to meet his burden to prove lack of 

testamentary capacity at the time William executed the 2008 amendment. Quoting 

Marriage of Greenway (2013) 217 Cal.App.4th 628, 639–642, the trial court recognized 

that the testamentary capacity standard under Probate Code section 6100.5 “is 

exceptionally low,” and that “even hallucinations and delusions do not demonstrate lack 

of capacity if they are not related to the testamentary act.” The trial court found that 

Bennett failed to raise a presumption or prove that William was unduly influenced by 

Michael. It also found Bennett failed to prove that William was the victim of elder abuse. 

II. DISCUSSION

A. MENTAL CAPACITY GENERALLY

Bennett argues the trial court erred by applying the Probate Code’s testamentary 

capacity standard to the trust amendment instead of the code’s sliding scale mental 

capacity standard described in Lintz v. Lintz (2014) 222 Cal.App.4th 1346 (Lintz). We 

review de novo this predominantly legal question. (Holmes v. Jones (2000) 

83 Cal.App.4th 882, 888 [a trial court’s interpretation of statutes and legal conclusions 
6

are reviewed de novo]; International Alliance of Theatrical Stage Employees, etc. v. 

Laughon (2004) 118 Cal.App.4th 1380, 1387 [statutory interpretation and application 

subject to independent review].)

The general rules for assessing mental capacity begin with Probate Code 

section 810, which establishes a rebuttable presumption “that all persons have the 

capacity to make decisions and to be responsible for their acts or decisions.” (Prob. 

Code, § 810, subd. (a). Unspecified statutory references are to this code.) The statute 

recognizes that persons with mental or physical disorders “may still be capable of 

contracting, conveying, marrying, making medical decisions, executing wills or trusts, 

and performing other actions.” (Id., subd. (b).) Under section 811, a person lacks 

capacity to decide or act when there is a deficit in at least one identified mental function 

and “a correlation [exists] between the deficit or deficits and the decision or acts in 

question.” (§ 811, subd. (a).) A mental function deficit bears on capacity if it 

“significantly impairs the person’s ability to understand and appreciate the consequences 

of his or her actions with regard to the type of act or decision in question.” (Id., 

subd. (b).) Section 812, which excepts itself from testamentary capacity determinations, 

states that “a person lacks the capacity to make a decision unless the person has the 

ability to communicate ... the decision,” and to the extent relevant, to understand and 

appreciate: the “rights, duties, and responsibilities created by, or affected by the 

decision”; the “probable consequences for the decisionmaker and, where appropriate, the 

persons affected by the decision”; and the “significant risks, benefits, and reasonable 

alternatives involved in the decision.” (§ 812, subds. (a)–(c).)

In contrast to the sliding scale rubric described above, Probate Code 

section 6100.5 “contemplates a significantly lower mental capacity standard for the 

making of a will.” (Lintz, supra, 222 Cal.App.4th at p. 1351.) A person is competent to 

make a will when he or she understands “the nature of the testamentary act;” understands 

and recollects “the nature and situation of [his or her] property”; and remembers and 
7

understands his or her “relations to living descendants, spouse, and parents, and those 

whose interests are affected by the will.” (§ 6100.5, subd. (a)(1)(A)–(C).) The statute 

provides that a person suffering from a mental health disorder “with symptoms including 

delusions or hallucinations” lacks capacity to make a will if the delusions or 

hallucinations result in the individual devising property in a way that the individual 

would not have done except for the existence of the delusions or hallucinations. (Id., 

subd. (a)(2).) 

The court in Anderson v. Hunt (2011) 196 Cal.App.4th 722 (Anderson) concluded

that section 6100.5 informs a trustor’s capacity to execute an amendment that, “in its 

content and complexity, closely resembles a will or codicil.” (Anderson, at p. 731.) 

Section 6100.5 bears on whether, under section 811, subdivision (b), “a person’s mental 

deficits are sufficient to allow a court to conclude that the person lacks the ability ‘to 

understand and appreciate the consequences of his or her actions with regard to the type 

of act or decision in question.’ ” (Anderson, at p. 731.) Section 6100.5 is thus “made 

applicable through section 811 to trusts or trust amendments that are analogous to wills or 

codicils.” (Anderson, at p. 731.) The original trust document in Anderson was complex. 

But the amendments, which added, dropped, and reallocated the trust residue among 

several beneficiaries, were not. (Ibid.) The appellate court concluded that the 

amendments were indistinguishable from a will or codicil in that they were simple and 

testamentary in nature. (Ibid.) The decedent’s capacity to execute the amendments 

therefore should have been evaluated under the lower testamentary capacity standard set 

forth in Probate Code section 6100.5. (Anderson, at p. 731.) 

Adopting the reasoning in Anderson, the court in Lintz recognized that the 

capacity to make an after-death transfer by trust is evaluated by the complexity as 

opposed to the nature of the testamentary act. (Lintz, supra, 222 Cal.App.4th at 

pp. 1351–1352.) The trusts and trust amendments in Lintz “addressed community 

property concerns, provided for income distribution during the life of the surviving 
8

spouse, and provided for the creation of multiple trusts, one contemplating estate tax 

consequences, upon the death of the surviving spouse.” (Id. at p. 1353.) The slidingscale contractual standard set forth in Probate Code sections 810 through 812 applied to 

those instruments because they were “unquestionably more complex than a will or a 

codicil.” (Lintz, at pp. 1352–1353.) 

William’s 2008 trust amendment was not complex. Similar to the amendments in 

Anderson, it merely reallocated the percentage of the grandchildren’s subtrust and the 

trust residue so that William’s children and grandchildren, respectively, took equal shares 

of his estate. The trial court was thus correct in applying the lower testamentary capacity 

standard to the 2008 trust amendment.

Bennett argues that the amendment was complex (and William lacked capacity to 

execute it under the standard applied in Lintz) because the amendment did not revoke the 

third amendment to the restated survivor’s trust executed in 2005, and thus did not 

actually result in Michael sharing equally in William’s estate. The 2005 amendment 

provided that upon the termination of each grandchild’s share of the grandchildren’s 

subtrust (i.e., when the grandchild turned 26), half of the grandchild’s then-remaining 

share would be distributed to that child’s parent, except that half of the then-remaining 

share for Michael’s daughter Kathleen would be distributed not to Michael but equally 

among William’s other children. The fact that the 2008 amendment did not acknowledge 

the third amendment to the restated trust and thus presumably did not alter the provision 

in the third amendment related to the distribution of Kathleen’s share of the 

grandchildren’s subtrust does not show that the 2008 amendment was complex or unfair 

or otherwise compel an incapacity finding. 

B. TESTAMENTARY CAPACITY UNDER PROBATE CODE SECTION 6100.5

Bennett argues William lacked testamentary capacity to execute the trust 

amendment under Probate Code section 6100.5. He argues that on May 22 and June 5, 

William did not remember facts such as Michael’s name, that Patrick was his oldest son, 
9

or that Holly was disabled. Bennett argues that he presented “ample evidence” that 

William lacked testamentary capacity, and the statement of decision is “erroneous and 

contrary to overwhelming, undisputed evidence.”

Significantly for our review, where “ ‘the issue on appeal turns on the failure of 

proof at trial, the question for a reviewing court becomes whether the evidence compels a 

finding in favor of the appellant as a matter of law. [Citations.] Specifically, the 

question becomes whether the appellant’s evidence was (1) “uncontradicted and 

unimpeached” and (2) “of such a character and weight as to leave no room for a judicial 

determination that it was insufficient to support a finding.” ’ ” (Juen v. Alain Pinel 

Realtors, Inc. (2019) 32 Cal.App.5th 972, 978–979.) In reviewing a judgment based on a 

statement of decision following a bench trial, “ ‘any conflict in the evidence or 

reasonable inferences to be drawn from the facts will be resolved in support of the 

determination of the trial court decision.’ ” (In re Estate of Young (2008) 

160 Cal.App.4th 62, 75–76.) The reviewing court may not reweigh the evidence and is 

bound by the trial court’s credibility determinations. (Id. at p. 76.) Here, the trial court 

“resolve[d] all credibility issues in favor of its findings and determinations,” and where 

different inferences could be drawn from the evidence, it found “most credible those 

inferences which support [its] determination.”

Bennett has failed to show reversable error under our standard of review. He cites 

to his experts’ testimony and medical records, which include notes from doctors, nurses, 

physical therapists, occupational therapists, and speech therapists. But the trial court 

found that Bennett’s experts were unhelpful. The court found that the evidence did not 

show that “William’s alleged cognitive impairments were so debilitating that he could not 

remember his issue, recollect his property, and understand that he wanted to treat his 

children and grandchildren equally.” Nor did the evidence show “any cognitive 

impairment suffered by William caused him to devise his estate equally to all of his 
10

children and grandchildren, instead of disinheriting his son Michael and his grandson 

Cameron.” 

We briefly discuss the medical records and the opinion of Michael’s expert

Dr. Mueller, a medical doctor trained in psychiatry and neurology, to explain that the 

evidence Bennett relies on was not uncontradicted and unimpeached. Nor was the 

evidence of such a character and weight to compel a finding in Bennett’s favor. 

Michael’s expert read the depositions of Michael, Holly, Bennett, the Los Angeles and 

local attorneys, the hospital social worker, William’s treating surgeon, the rehabilitation 

facility’s medical director, and Bennett’s two medical experts. He also reviewed 

William’s medical records, and opined that neither the depositions nor the records

showed that William lacked testamentary capacity on June 5. According to the medical 

records, William’s fall led to his hospitalization, when expressive aphasia was observed 

in the emergency room and by the treating neurologist. The neurologist noted that 

William “fell out of bed approximately four days ago with no reported loss of 

consciousness.” He states that William “developed slurred speech and difficulty finding 

words today.” Michael’s expert described aphasia as “a language disturbance, that 

prevents [William] from saying the word that he wishes to say.” Over the course of his 

hospital stay, William showed symptoms of a “mixed aphasia, namely he had problems 

not only with spontaneity and fluency of speech but also with comprehension, and most 

evidently, with word finding difficulty.” 

Day shift nursing notes from June 4 described William as alert and oriented and 

using single words. The June 4 night shift and June 5 day shift nursing notes described 

William as alert and oriented with clear speech. Michael’s expert explained that William 

had a resolving aphasic disorder at that time; the aphasia made it “difficult or impossible 

to assess memory [and] reasoning in any adequate way”; and neither the hospital nor 

rehabilitation facility attempted to administer even a rudimentary cognitive screening 

test.
11

Michael’s expert testified that many occupational and speech therapists “will 

confuse recognition and naming of a person,” and he questioned whether the words 

“recognition” and “memory” were appropriately used in their notes, “when an alternative 

and more parsimonious explanation is ‘man had word-finding difficulty of an aphasic 

nature.’ ” Occupational therapy progress notes from June 5 state that William “exhibited 

difficulty recalling son’s name.” The expert opined that William was having wordfinding difficulty at that time. On May 22, a nurse attending to William asked him 

several questions, including “[W]here are you now?” William responded, “The moon –

no – I live here.”2 The expert opined that William’s reference to “the moon” was a 

“paraphasic distortion of spoken language.” He also explained that even if a person 

actually believes he is on the moon, that belief “doesn’t necessarily prevent him from 

knowing what property he owns or what it’s worth or what he wants to do with it.” 

In Dr. Mueller’s opinion, changing a trust to reinstate a son as a beneficiary so that 

all children and grandchildren are on equal footing is not a complex task; William “had 

the ability to know whether he wanted his son Michael in or out”; William had expressed 

on several occasions that he wanted to divide his estate equally among his children and 

grandchildren with the exception of a house for Holly; and nothing in the medical records 

prevented William from deciding to reinstate Michael.

Bennett argues that the statement of decision misrepresented or fabricated 

evidence. He points to a litany of findings purportedly contradicted by evidence or 

omissions in the record. For example, the finding that in 2007 William told Marjorie he 

would amend the survivor’s trust to restore Michael as a beneficiary was contradicted by 

the fact that William did not instruct his attorney to execute an amendment before he was 

2 The nurse also asked William: [Q.] “Is this a hospital?” [A.] “Oh, yes, I can’t 

say the name.” [Q.] “Why did you come to the hospital?” [A.] “I had some trouble. It 

hurt.” [Q.] “Did your doctor talk to you about surgery?” [A.] “Oh yes.” [Q.] “Do you 

know where on you the surgery will be?” [A.] “Oh, yes. Here – a lot of trouble only 

here” (pointing to his right face). 
12

hospitalized in May 2008; the finding that William asked Michael to call his attorney in 

Los Angeles to amend the estate planning documents contradicts the finding that the 

same attorney found William to be unintelligible; and the finding that the local attorney 

drafted the estate planning documents in accordance with William’s request contradicts 

the finding that Michael instructed that attorney to change the estate plan. Those findings 

are not inherently contradictory, nor do they establish grounds for reversal. 

Bennett argues the statement of decision misrepresented the deposition testimony 

of William’s Los Angeles attorney because it referred to the attorney’s notes from 2006 

that Michael and William had met and were trying to reconcile their differences, without 

mentioning the attorney’s notes from 2001 when William sought to disinherit Michael 

and Michael’s children. Bennett complains that other findings misstated or 

mischaracterized medical records; the local attorney’s deposition; the social worker’s 

deposition; the testimony of William’s friend William Porter; and Michael’s trial 

testimony. 

We have carefully reviewed the record and see no misrepresented or fabricated 

evidence. Rather, it is Bennett who takes liberties with the record. For example, Bennett 

asserts that Michael’s expert “admitted” that at the time William executed the amendment 

William “did not know what a trust was.” The expert testified that William could not 

have explained what a trust was on May 22 because of his aphasia, not that there was a 

lack of understanding. Bennett attacks the finding that Porter was present when William 

signed the amendment as “a blatant misstatement of Porter’s trial testimony.” But Porter, 

William’s good friend and neighbor, testified that he or his wife visited William every 

day when William was hospitalized; he visited William almost every day when Willian 

was in rehabilitation; and on two consecutive days in June he saw William sign papers 

with a notary and witness present. On cross-examination Porter said the year was 2007, 

but then clarified that he was not sure of the year, but the dates were either June 5 and 6 

or June 6 and 7, “[b]ecause I was at the hospital with [William] those days.” 
13

Bennett points out that the statement of decision incorrectly quoted a June 26 

discharge summary from the rehabilitation facility to describe William’s condition on 

June 2 when he was discharged from the hospital to rehabilitation. The summary stated 

that William “required minimal assistance for memory, supervision with problem 

solving, and he is modified independent for social interaction,” and he “was discharged 

home in stable condition.” The reference appears to be a mistake, not a fabrication as 

Bennett argues, and it does not undermine the trial court’s reasoning or ultimate 

conclusions. The trial court went on to accurately quote from June 3, 4, and 5 medical 

notes to describe William’s condition in the days leading up to his executing the trust 

amendment on June 5. 

The trial court also mistakenly quoted emergency department records from 

February 21, 2009 when describing William’s mental state on May 21, 2008, the date on 

which William signed a hospital form naming Michael as his agent to make health care 

decisions for him. The 2009 emergency department records note: “Normal psychiatric 

evaluation in this elderly male. Normal interpersonal interactions[,] appears functionally 

intact and deals appropriately with others.” Physician notes from May 20, 2008 describe 

William as “alert but occasionally confused with dysphasia.” Patient care notes over the 

course of May 21, 2008 state that William “remains with expressive aphasia; oriented to 

self; some intermittent confusions”; William’s “ability to express self [is] much better”; 

and William is “awake, alert. Answers some questions appropriately but has expressive 

aphasia.” Here again, we acknowledge the trial court’s erroneous factual reference but 

based on the correct records from May 21, 2008, the mistake does not compel a different 

result.

Bennett challenges what he characterizes as a “finding” that William had 

testamentary capacity “because he did not later amend his trust.” (Boldface and 

capitalization omitted.) In its testamentary capacity analysis, the trial court found 

significant that William had modified his trust several times, because those past acts 
14

demonstrated that William was familiar with the process that occurred on June 5, and if 

he had been dissatisfied, he could have again changed the trust. And the trial court did 

not determine that Bennett had failed to meet his burden on that basis alone. The court 

also stressed the absence of insanity to establish incompetency generally, noting 

William’s ability to live independently and travel both before and after the June 5

amendment. It noted the absence of hallucination or delusion at the time William signed 

the amendment, and his correcting a typographical error in the amendment’s spelling of 

his deceased wife’s surname, striking out the second “g” in “Huggill.” The court also 

relied on Porter’s testimony that William was strong willed and stubborn, and intelligible 

and able to talk about golf scores on June 5 and 6. Porter witnessed William sign the 

amendment and saw nothing unusual. 

C. UNDUE INFLUENCE 

The presumption favoring a will may be countered by a presumption of undue 

influence brought to bear on the testator. (Estate of Sarabia (1990) 221 Cal.App.3d 599, 

605.) The presumption of undue influence arises where a confidential relationship exists 

between the testator and the party alleged to have exerted influence, and there is 

“activity” on the part of the beneficiary in the procurement of the will and “undue profit”

to that beneficiary. (Estate of Goetz (1967) 253 Cal.App.2d 107, 115, 117 (Goetz)) The 

trial court found that Bennett failed to establish the second and third elements of the 

undue influence presumption. 

Bennett argues that the “activity” element is satisfied as a matter of law by 

Michael contacting, hiring, and instructing the local attorney; collecting the existing 

estate planning documents from William’ s home for the local attorney; being present 

when the local attorney returned to the hospital with the documents for William to 

execute; and facilitating the June 5 signing without an attorney or Holly present and 

without anyone explaining the amendment to William. But the activity needed to satisfy 

the presumption is not any activity but “noxious” activity. (Goetz, supra, 253 Cal.App.2d 
15

at p. 117.) The court in Goetz explained that the element is not satisfied where a 

beneficiary speaks with the testator about testamentary intentions; accompanies the 

testator to a lawyer’s office to instruct on drafting a will or to execute the will; remains in 

the office during the will’s execution; or opts not to take the testator to a psychiatrist to 

pass on the testator’s competency. (Id. at pp. 116–117). The activities Bennett cites are 

similar to those in Goetz and are not noxious under the law. Further, there is no 

requirement that someone explain the documents to William before signing. 

We also agree with the trial court that Michael did not unduly profit from the 

amended trust, where he and his son were merely reinstated as beneficiaries to share 

equally with their respective siblings. (Goetz, supra, 253 Cal.App.2d at pp. 117–118 [the 

natural disposition of property is inconsistent with undue profit].) The record does not 

demonstrate, much less compel, a finding of any “ ‘pressure brought to bear directly on 

the testamentary act, sufficient to overcome the testator’s free will, amounting in effect to 

coercion destroying the testator’s free agency.’ ” (Lintz, supra, 222 Cal.App.4th 1346, 

1354, quoting Rice v. Clark (2002) 28 Cal.4th 89, 96.)

D. DELIVERY REQUIREMENT

Bennett argues that the 2008 amendment is invalid under California law and the 

terms of the trust itself because Michael did not leave a copy of the document with 

William after William signed it. Bennett has forfeited this claim by failing to raise it to 

the trial court. The argument fails even if it had been preserved. The Probate Code 

provides that a revocable trust may be revoked either by complying with the method of 

revocation provided in the trust instrument or by a writing signed by the settlor “and 

delivered to the trustee during the lifetime of the settlor.” (§ 15401, subd. (a)(1)–(2).) 

The Fourth Amendment and Restatement of the Trust executed in February 2000 states 

that the trustor may revoke or amend the trust by a written instrument “signed by the 

Trustor and delivered to the Trustee.” 
16

The amendment is not invalid for lack of delivery to the trustee. Michael testified 

that he did not leave a copy of the trust amendment with William at the hospital upon 

signing. But William had received the trust amendment when he executed the document

as “Trustor and Trustee,” thereby satisfying the delivery requirement. Michael also 

provided William’s Los Angeles attorney with the amendment.

E. ELDER ABUSE CLAIMS

Bennett’s petition alleged that Michael failed to obtain care and medicine for 

William in 2009 and 2010. The trial court found that Bennett did not have standing 

under Welfare and Institutions Code section 15657.3 to bring an elder abuse claim, but 

even if he did, Bennett did not prove elder abuse. Bennett argues the standing ruling is 

contrary to the law of the case from his previous appeal, Gregge v. Hugill (2016)

1 Cal.App.5th 561, where this court held that the trial court had initially abused its 

discretion by dismissing Bennett’s petition based on a nonparty (Michael’s son) 

disclaiming his interest in the trust estate (id. at pp. 569–571), and that Bennett had 

standing as an interested person under Welfare and Institutions Code section 15657.3, 

subdivision (d)(2). But even with standing, he fails to demonstrate error. The trial court 

alternatively found Bennett’s elder abuse allegations meritless. In his reply brief Bennett 

presents his version of events leading up to June 5, 2008 to argue that Michael committed 

elder abuse in orchestrating the drafting and signing of the amendment to the survivor’s 

trust. Overlooking the fact that Bennett alleged elder abuse occurred only in 2009 and 

2010, the trial court rejected Bennett’s version of events, and the record before us does 

not compel an elder abuse finding as a matter of law. 

III. DISPOSITION

The judgment is affirmed. Respondent shall recover his costs on appeal by 

operation of California Rules of Court, rule 8.278(a)(1).
____________________________________

Grover, J.

WE CONCUR:

____________________________

Greenwood, P. J. 

____________________________

Danner, J. 

H045113 - Gregge v. Hugill et al.