Filed 9/27/21; see dissenting opinion

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

IAN C. DAE,

Plaintiff and Appellant,

v.

ROBERT TRAVER, as Trustee, etc.,

Defendant and Respondent.

B305834

(Los Angeles County

Super. Ct. No.

18STPB06832)

APPEAL from an order of the Superior Court of 

Los Angeles County. Brenda J. Penny, Judge. Affirmed.

Murtaugh Treglia Stern & Deily, John P. Deily and Devin 

Murtaugh for Plaintiff and Appellant.

Jeffer Mangels Butler and Mitchell, Susan Allison and Neil 

C. Erickson for Defendant and Respondent.

_________________________________
2

Ian C. Dae (Dae) appeals from an order denying his motion 

to strike a probate court petition under the anti-SLAPP statute. 

(Code Civ. Proc., § 425.16.)1 Respondent Robert Traver (Robert) 

filed the petition in his capacity as trustee of a family trust.2 

Robert’s petition alleged that Dae violated a “no contest” clause 

in the trust by filing a previous petition challenging Robert’s

actions as trustee.

The parties agree that Robert’s petition (the No Contest 

Petition) arose from protected petitioning activity under Code of 

Civil Procedure section 425.16, subdivision (e)(1). Thus, under 

subdivision (b)(1) of that statute, to defeat Dae’s motion Robert

was required to show a probability that he would prevail on his 

No Contest Petition.

The trial court found that Robert made such a showing. 

We agree.

Dae’s petition broadly challenged Robert’s conduct in 

setting up a financial structure that Robert claimed was designed 

to avoid estate taxes. If Robert’s claim is true, Dae’s petition

would implicate the no contest provision by seeking to “impair” 

provisions in the trust giving Robert the authority to manage 

trust assets.

Dae also challenged his own removal as a beneficiary. 

Whether that more specific challenge amounts to a “contest” for 

purposes of the trust’s no contest clause depends upon the 

1 “ ‘ “SLAPP” is an acronym for “strategic lawsuit against 

public participation.” ’ ” (Monster Energy Co. v. Schechter (2019) 

7 Cal.5th 781, 785, fn. 1.)

2 Other than Dae, we use first names because some family 

members have the same surname. No disrespect is intended.
3

trustors’ intent. Robert provided sufficient evidence of the 

trustors’ intent to allow a change of beneficiary to make a prima 

facie showing of probability of prevailing on Robert’s contention 

that Dae’s claims are a “contest.” Our conclusion is limited to the 

context in which it arises—an anti-SLAPP motion. We express 

no opinion on how the probate court should ultimately rule on 

Robert’s petition.

BACKGROUND3

1. The Family Trust

Erin and Jean Walsh (the Trustors), a married couple,

established a family trust in 1994 (Family Trust). Jean had three 

children from a prior marriage—Joan, William, and Robert. Erin 

had no children.

Joan had one child—Dae. William had no children. Robert 

has three children.

The Family Trust provided that, when one of the Trustors 

died, the assets of the Family Trust would be divided into a 

Survivor’s Trust, a Residuary Trust, and a generation skipping 

trust for the grandchildren. The Survivor’s Trust was to be 

funded with the community property interest of the surviving 

trustor and was revocable during the surviving trustor’s lifetime.

Aside from some specific bequests and the funding of the 

generation skipping trust (which is not at issue here), the 

remainder of the deceased trustor’s community property interest 

was to fund the Residuary Trust. The Residuary Trust was 

irrevocable.

3 We summarize the facts in the light most favorable to 

Robert, the party opposing the anti-SLAPP motion. (Murray v. 

Tran (2020) 55 Cal.App.5th 10, 16.)
4

The Family Trust designated the surviving trustor and 

Robert as the trustees of the Residuary Trust. Those trustees 

were given the “same powers and duties” as the original Trustors 

of the Family Trust, which included the authority to “grant, sell, 

assign, convey, exchange, convert, manage, . . . invest, reinvest, 

loan, or reloan” trust property and to “borrow money for any trust 

purpose upon such terms and conditions as may be determined 

by the trustees, and to obligate the trust property for the 

repayment of money so borrowed.” The trustees were also 

generally given “all powers that are necessary or convenient to 

make fully effective the purposes of the trust.”

During his or her lifetime, the surviving trustor was 

entitled to the “entire net income” of the Residuary Trust as well 

as those sums from principal that the trustees “may deem 

necessary for the reasonable support, care, and maintenance of 

the surviving trustor.” Upon the death of the surviving trustor, 

the assets of the Residuary Trust were to be divided equally 

among Jean’s three children, if then living. If any child was not 

then alive, that child’s share was to be distributed to the child’s 

issue “by right of representation.” If no issue of that child was 

then living, the child’s share was to be divided between the other 

children’s shares.

2. The No Contest Clause

The Family Trust included a no contest provision (No 

Contest Clause). Among other things, the No Contest Clause 

provided that any beneficiary who attacked “any of the provisions 

of this declaration of trust” or sought to “impair any of the 

provisions of . . . this declaration of trust” would take nothing 

“from either of the trustors’ estates or any trust created by this 

declaration of trust.”
5

3. Subsequent Estate Planning

Erin died in 1995. Under the terms of the Family Trust, 

upon his death the Residuary Trust was funded and became 

irrevocable.

William died in 2006 without any issue. William’s share of 

the Residuary Trust therefore was to be split between Joan’s and 

Robert’s share.

After Erin’s death, Jean and Robert became the trustees of 

the Residuary Trust, which was initially funded with about 

$16 million in assets. Jean and Robert established a complex 

financial structure using the assets of the Residuary Trust that 

Robert claims was for the purpose of avoiding estate taxes and 

Dae claims was designed to disinherit him. Only the broad 

outlines of this structure are necessary to decide the issues on 

appeal, and we therefore summarize it only generally.

In 2011, Jean and Robert set up two trusts, reflecting the 

two remaining children’s interests in the Residuary Trust—the 

2011 Gibb Trust (Gibb was Joan’s last name) and the 2011 

Traver Trust (collectively, the 2011 Trusts). Using a loan from 

the Royal Bank of Canada secured by the Residuary Trust’s

assets, Robert and Jean purchased life insurance on the lives of 

Joan and Robert by paying a premium of $7.5 million for each 

policy. The policies initially provided death benefits of $16.2 

million for Joan and $15.2 million for Robert. The 2011 Gibb 

Trust owned the policy on Joan’s life, and the 2011 Traver Trust 

owned the policy on Robert’s life.

In what Robert calls a “split dollar” arrangement, a series 

of agreements gave the Residuary Trust an interest in the life 

insurance policies in return for the Residuary Trust’s financing of 
6

the premiums for those policies.4 The Residuary Trust’s interest 

(the Receivables) was equal to the greater of: (1) the amount of 

the premiums, or (2) the cash value of the policies at the time of 

the insured’s death.

Jean and Robert later established two other trusts—the 

2014 Gibb Trust and the 2014 Traver Trust (collectively, the 2014 

Trusts). Those two trusts purchased the Receivables from the 

Residuary Trust for the sums of $674,900 (by the 2014 Gibb 

Trust) and $626,400 (by the 2014 Traver Trust). With the 

approval of a “trust protector” for the 2011 trusts, the 2014 Gibb 

Trust and the 2014 Traver Trust also acquired the assets of the 

2011 Gibb Trust and the 2011 Traver Trust, respectively. The 

net effect of these transactions was to provide the 2014 Trusts 

with the bulk of the assets of the Residuary Trust.

Under the original terms of the 2014 Gibb Trust, Joan was 

the lifetime beneficiary and her issue (i.e., Dae) was the 

remainder beneficiary. However, the terms of the trust gave

Joan a power of appointment to designate the remainder 

4 A “split-dollar” life insurance arrangement has been 

described as “any arrangement between an owner and a 

nonowner of a life insurance contract, where either party pays 

any portion of the premiums (including payment by means of a 

loan secured by the life insurance contract) and at least one of the 

parties is entitled to recover, either conditionally or 

unconditionally, all or any portion of those premiums (and 

recovery is to be made from or secured by proceeds from the life 

insurance contract).” (Estate of Cahill v. Comm’r (2018) 115 

T.C.M. (CCH) 1463 [T.C. Memo 2018-84 at p. *12, 2018 Tax Ct. 

Memo LEXIS 86 at p. **11].) We refer to the financial 

arrangement involving the Residuary Trust assets as the “Split 

Dollar Trust Arrangement.”
7

beneficiaries. On August 5, 2015, Joan exercised that power, 

directing the assets of the 2014 Gibb Trust to various charities 

and to Robert and his children rather than to Dae.

Robert testified that the purpose of the Split Dollar Trust 

Arrangement was to minimize estate taxes and that it 

accomplished that goal. He also testified that he and Jean set up 

the arrangement with the advice and counsel of financial and 

legal advisors.

Joan died on July 12, 2016. Jean died three months later, 

on October 15, 2106.

4. Probate Court Proceedings

In October 2018, Dae filed a verified petition to “settle the 

accounts,” to “confirm trust assets and trust debts,” and to 

“compel redress of a breach of trust and to compel the trustee to 

provide information regarding the trust administration.” Dae 

filed a supplemental verified petition in March 2019. (We refer to 

both petitions collectively as Dae’s Petition.)

Dae’s Petition (described in more detail below) alleged that 

Robert breached his fiduciary duties to the Family Trust by 

engaging in the transactions underlying the Split Dollar Trust 

Arrangement and by using Residuary Trust assets to benefit 

himself and his family while depriving Dae of his interest in the 

trust.

Robert filed responses and objections to Dae’s initial 

petition and to the supplemental petition. On June 10, 2019, 

Robert also filed his own petition “for order and instructions 

regarding [Dae’s] violations of no contest clauses” (No Contest 

Petition). The No Contest Petition sought a declaration that 

Dae’s Petition constituted a “contest” in violation of the Family 
8

Trust’s No Contest Clause, and requested a ruling deeming all of 

Dae’s interest in the Family Trust to be forfeited.

Dae responded to that petition with his anti-SLAPP 

motion, which sought an order striking the entire No Contest 

Petition. The motion alleged that the No Contest Petition sought 

to impose liability on Dae as a result of Dae’s protected 

petitioning activity. The motion also alleged that Robert “cannot 

meet his resulting burden of demonstrating a likelihood of 

success on the merits of his [No Contest] Petition because . . .

Dae’s Petition only challenges certain acts of borrowing and trust 

administration by [Robert], which had the effect of changing the 

beneficiaries of the irrevocable Residuary Trust, enriching 

[Robert] at the expense of . . . Dae.” Robert filed an opposition, 

which included his own declaration.

The probate court denied the motion. The court observed 

that, even under the “minimal merit” standard applicable to antiSLAPP motions, “the arguments and evidence presented by the 

parties calls into question the propriety of the various Residuary 

Trust transactions at issue.” The court noted that Joan’s 

beneficial interest in the Residuary Trust “was contingent on her 

not predeceasing Jean,” and “[o]therwise, Joan’s interest was to 

go to [Dae].” The court also noted that “[t]here does not appear to 

be any provision in the Family Trust allowing Joan to alter 

beneficiaries of the irrevocable Residuary Trust.”

However, the probate court also noted Robert’s testimony 

that “all these transactions were done at ‘arms-length’ under the 

guidance of financial advisers and independent appraisers.” The 

court concluded that, “when this aspect is considered with the 

intention of reducing tax liability and expenses . . . , it is possibly 

conceivable that Robert and Joan’s actions were within their 
9

discretion as trustees as outlined by the Family Trust. In turn, 

[Dae’s] petition challenging these actions would contest their 

powers under the Family Trust.” The court therefore ruled that 

“Robert has shown enough, for purposes of this Motion, to show 

the ‘minimal merit’ required to survive an anti-SLAPP motion.”

DISCUSSION

1. The Anti-SLAPP Procedure

Analysis of an anti-SLAPP motion is a two-step process. In 

the first step, “the moving defendant bears the burden of 

identifying all allegations of protected activity, and the claims for 

relief supported by them.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 

396 (Baral).) At this stage, the defendant must make a 

“threshold showing” that the challenged claims arise from 

protected activity, which is defined in Code of Civil Procedure 

section 425.16, subdivision (e). (Rusheen v. Cohen (2006) 37 

Cal.4th 1048, 1056.)

Second, if the defendant makes such a showing, the 

“burden shifts to the plaintiff to demonstrate that each 

challenged claim based on protected activity is legally sufficient 

and factually substantiated.” (Baral, 1 Cal.5th at p. 396.) 

Without resolving evidentiary conflicts, the court determines 

“whether the plaintiff’s showing, if accepted by the trier of fact, 

would be sufficient to sustain a favorable judgment.” (Ibid.) The 

plaintiff’s showing must be based upon admissible evidence. 

(HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 

204, 212.) Thus, the second step of the anti-SLAPP analysis is a 

“summary-judgment-like procedure at an early stage of the 

litigation.” (Varian Medical Systems, Inc. v. Delfino (2005) 35 

Cal.4th 180, 192.) In this step, a plaintiff “need only establish 

that his or her claim has ‘minimal merit’ [citation] to avoid being 
10

stricken as a SLAPP.” (Soukup v. Law Offices of Herbert Hafif 

(2006) 39 Cal.4th 260, 291, quoting Navellier v. Sletten (2002) 29 

Cal.4th 82, 89.) A plaintiff prevails in the second step by 

demonstrating that “ ‘the complaint is both legally sufficient and 

supported by a sufficient prima facie showing of facts to sustain a 

favorable judgment if the evidence submitted by the plaintiff is 

credited.’ ” (Wilson v. Parker, Covert & Chidester (2002) 28 

Cal.4th 811, 821, quoting Matson v. Dvorak (1995) 40 

Cal.App.4th 539, 548.)

Here, the parties agree that Robert’s No Contest Petition 

arose from Dae’s protected litigation conduct under the first step 

of the anti-SLAPP analysis. Thus, we need consider only

whether Robert provided sufficient evidence to show a likelihood 

of success on his No Contest Petition in the second step of the 

anti-SLAPP procedure. In doing so, we employ a de novo 

standard of review. (Park v. Board of Trustees of California State 

University (2017) 2 Cal.5th 1057, 1067.)

2. The Law Concerning No Contest Provisions

No contest clauses respect the intent of a donor by 

“discouraging litigation by persons whose expectations are 

frustrated by the donative scheme of the instrument.” (Donkin v. 

Donkin (2013) 58 Cal.4th 412, 422 (Donkin).) However, that 

interest is in tension with the policy of “avoiding forfeitures and 

promoting full access of the courts to all relevant information 

concerning the validity and effect of a will, trust, or other 

instrument.” (Ibid.)

The common law of California traditionally balanced these 

interests by enforcing no contest clauses so long as they were 

“ ‘not prohibited by some law or opposed to public policy.’ ” 

(Donkin, supra, 58 Cal.4th at p. 422, quoting In re Estate of 
11

Kitchen (1923) 192 Cal. 384, 388.) No contest clauses were also 

strictly construed. (Kitchen, at pp. 389–390.)

The Legislature began codifying the law concerning no 

contest clauses in 1989. (Donkin, supra, 58 Cal.4th at p. 422.) 

The general rule was that, unless a statute provided otherwise, 

“a no contest clause is enforceable against a beneficiary who 

brings a contest within the terms of the no contest clause.” 

(Former Prob. Code, § 21303, added by Stats. 1989, ch. 544, § 19, 

p. 1825, and repealed by Stats. 1990, ch. 79, § 13, p. 463, 

operative July 1, 1991.)5 However, the Legislature also 

explained that the statutes governing no contest provisions were

“not intended as a complete codification of the law governing 

enforcement of a no contest clause” and that the “common law 

governs enforcement of a no contest clause to the extent this part 

does not apply.” (Former § 21301.)

The statutory scheme thereafter became increasingly 

complex as the Legislature added amendments identifying 

particular types of actions “against which a no contest clause was 

not enforceable.” (Donkin, supra, 58 Cal.4th at p. 423.) In 2008 

the Legislature simplified the statutory scheme (effective in 

2010) “by more narrowly defining the types of challenges that 

could be subject to a no contest clause.” (Key v. Tyler (2019) 34 

Cal.App.5th 505, 516 (Key).) “Under current law, a no contest 

clause is enforceable against a ‘direct contest that is brought 

5 Subsequent undesignated statutory references are to the 

Probate Code. Because this case involves the application of prior 

law, we hereafter identify statutory provisions that have since 

been repealed or amended by referring to them simply as 

“former” statutes without including detailed information about 

their effective dates.
12

without probable cause.’ ” (Id. at p. 517, quoting § 21311, 

subd. (a)(1).)

The Residuary Trust became irrevocable in 1995 when Erin 

died. Thus, the parties agree that the no contest law prior to 

2010 applies here. (See § 21315.)

3. Robert Met His Burden to Show that His No 

Contest Petition Has “Minimal Merit”

A. Dae’s Petition broadly challenged the 

trustees’ conduct

Dae argues that his Petition does not challenge the terms of 

the Family Trust. He agrees that Robert, “as trustee, had broad 

powers to enter into transactions concerning the [Family] Trust’s 

assets.” Dae claims that his Petition “merely challenges the 

manner in which [Robert] has used those powers to take [Dae’s]

inheritance for himself.”

Dae’s filings in the probate court suggest otherwise. 

Rather than simply targeting the specific act that decreased his 

inheritance—i.e., Joan’s exercise of her power of appointment to 

exclude Dae as a beneficiary of the 2014 Gibb Trust—Dae’s 

Petition took aim at the trustee’s entire Split Dollar Trust 

Arrangement.

Dae’s Petition specifically challenged his removal as a 

beneficiary of the trusts that Jean established for the life 

insurance proceeds (which Dae’s Petition called the “irrevocable 

life insurance trust or trusts” or “ ‘ILITS’ ”). Dae alleged that he 

“could have easily been made a proportionate beneficiary under 

the ILITS but was intentionally not made so by [Robert] and 

[Robert’s family] and others designing the ILITS that put 

[Robert] in a breach of his fiduciary duties owed under the 

Residuary Trust to [Dae] as a beneficiary.”
13

However, Dae’s Petition also went further in alleging that 

the trustees’ decision to purchase the insurance policies on the 

lives of Joan and Robert in the first place was outside their

authority. Dae’s Petition characterized Jean’s interest in the 

Residuary Trust as a “life estate of the income and a limited right 

to invade principal,” which was treated for tax purposes as 

“Qualified Terminal Interest Property.” Dae’s Petition then 

discussed the facts concerning the $15 million loan from the 

Royal Bank to pay the premiums on the insurance policies for 

Joan and Robert and asked, “Why would the Residuary Trust 

spend $15,000,000 in carrying out its purpose as a Qualified 

Terminal Interest Property (hereinafter the ‘QTIP’) Trust?” 

Dae’s Petition answered this question by alleging that “all the 

payments made by the Residuary Trust related to the 

$15,000,000 borrowing from Royal Bank were really related to 

the personal activity of Jean Walsh and not for carrying out the 

purpose of the QTIP.”

Dae’s Petition also challenged the trustee’s authority to 

transfer the Receivables from the Residuary Trust to the 2014 

Gibb Trust and the 2014 Traver Trust. Dae’s Petition alleged 

that the Residuary Trust received inadequate consideration for 

that transfer and claimed that the transaction “was just a 

shifting of what is really a loss by Jean . . . and her Survivor’s 

Trust to the Residuary Trust.” Dae claimed that the “payment of 

interest costs and all of the other related costs” associated with 

the Royal Bank loan should be “payable to the Residuary Trust”

from the Survivor’s Trust.

It is undisputed that the Split Dollar Trust Arrangement, 

including the purchase of insurance on Joan’s life through the 

loan from the Royal Bank, resulted in a payment of $16.2 million 
14

to the 2014 Gibb Trust after Joan’s death. Thus, in return for a 

policy payment of $7.5 million, the 2014 Gibb Trust received 

more than twice that amount free of federal estate tax. Had Joan 

not excluded Dae as a beneficiary of the 2014 Gibb Trust, Dae 

would have received the substantial benefit of this arrangement.

By attacking the trustees’ decision to establish the Split 

Dollar Trust Arrangement, Dae’s Petition appears to challenge

their authority to manage the principal of the Residuary Trust 

for the benefit of the trust beneficiaries. As mentioned, the 

Family Trust gave the trustees the authority to invest, loan, 

convey, and hypothecate trust property. Thus, Dae’s Petition 

arguably sought to “impair” trust provisions which expressly 

granted powers that the trustees exercised in setting up the Split 

Dollar Trust Arrangement.

A challenge to investment decisions that a trust expressly 

empowers a trustee to make can amount to a contest. In Hearst 

v. Ganzi (2006) 145 Cal.App.4th 1195 (Hearst), income 

beneficiaries of a trust sought a ruling that their proposed 

petition would not violate the trust’s no contest clause.6 The 

petition alleged that the trustees breached their fiduciary duties 

by decisions that reduced the dividends the income beneficiaries

received. The probate court concluded that the proposed petition 

6 The beneficiaries made their request under a former 

statute establishing a “safe harbor” proceeding to obtain a ruling 

declaring whether a particular petition would violate an 

instrument’s no contest clause before that petition was actually 

filed. (Hearst, supra, 145 Cal.App.4th at p. 1202; see former 

section 21320; Funsten v. Wells Fargo Bank, N.A. (2016) 2 

Cal.App.5th 959, 974 [safe harbor procedure no longer available 

after statutory revisions in 2010].)
15

would violate the trust’s no contest clause, and the Court of 

Appeal affirmed. (Id. at pp. 1199–1200.)

The trust instrument in Hearst provided the trustees with 

the authority to hold assets regardless of the income they 

produced and to decide what was income and what was the 

principal of the trust. (Hearst, supra, 145 Cal.App.4th at pp. 

1201–1202.) The trustees were also given explicit authority to 

treat income and remainder beneficiaries differently. (Id. at 

p. 1214.) The Court of Appeal held that the income beneficiaries’ 

attempt to increase their dividends would contest the provisions 

of the trust by interfering with the trustee’s business decisions

and their discretion to decide what was income and what was 

principal. (Id. at pp. 1210–1212.)

Dae’s Petition similarly seeks to limit the discretion of the 

Family Trust’s trustees by challenging their use of trust assets to 

purchase life insurance and to fund other trusts with the 

proceeds. It is undisputed that the Split Dollar Trust 

Arrangement avoided estate taxes, which was within the scope of 

the trustee’s authority.

Dae cannot avoid the consequences of his broad challenge 

to the trustee’s discretion by belatedly narrowing his focus only to 

the specific conduct that directly resulted in his loss of a

beneficiary interest. The purpose of no contest clauses is to 

discourage litigation that challenges the intent of the donor. 

(Donkin, supra, 58 Cal.4th at p. 422.) A pleading that initiates

such litigation can violate a no contest clause even if its 

allegations are later withdrawn.

For example, in Schwartz v. Schwartz (2008) 167 

Cal.App.4th 733, the court held that a petition seeking a 

particular distribution from an inter vivos trust violated a no 
16

contest clause even though the petitioner withdrew the petition 

several months later. The court reasoned that the petitioner 

“used the mechanisms of the court” to challenge the decedent’s 

intent, compelling the respondent to respond and the court to 

hold hearings. (Id. at p. 745.) The court concluded that 

permitting the petitioner to “escape the consequences” of his 

petition by withdrawing the contest would defeat the purpose of 

the no contest clause. (Ibid.)7

Here, Dae’s Petition initiated litigation, causing Robert to 

file responses and to file his separate No Contest Petition. The 

No Contest Petition in turn spawned proceedings on Dae’s antiSLAPP motion. Dae may not now escape the consequences of his 

original allegations by recasting his Petition as a narrow 

challenge only to the particular actions that removed him as a 

beneficiary of the 2014 Gibb Trust.

B. Robert provided sufficient evidence 

showing that Dae’s challenge to his own 

disinheritance was a contest

Based upon the current record, it is also possible that Dae’s 

specific challenge to his removal as a beneficiary of the 2014 Gibb 

7 Under current law a “ ‘Contest’ ” is triggered by “a 

pleading filed with the court by a beneficiary.” (§ 21310, subd. 

(a).) In discussing the proposed 2008 changes to the no contest 

statutes, the California Law Revision Commission explained that 

a contest was defined this way because “[m]any of the harms that 

can result from litigation occur early in a contest (e.g., 

reputational harm to the transferor or beneficiaries, acrimony 

between beneficiaries, and pressure to settle with a dissatisfied 

beneficiary).” (Recommendation: Revision of No Contest Clause 

Statute (Jan. 2008) 37 Cal. Law Revision Com. Rep. (2007) 

p. 391.)
17

Trust would subvert the Trustors’ intent. One of the two original 

Trustors of the Family Trust—Jean—established the 2014 Gibb 

Trust, which included the provision giving Jean’s daughter Joan

the power to appoint the persons who would receive the assets of 

that trust upon Joan’s death. It is that provision that permitted 

Joan to exclude Dae from the remainder beneficiaries who would 

inherit those assets. Thus, Jean was a key participant in the 

conduct that allegedly led to Dae’s disinheritance.

In his declaration, Robert testified that, following Erin’s 

death, “Jean occasionally expressed to me a desire to engage in 

additional estate planning activities in order to further the 

purposes of the Family Trust to pass as much of her estate to her 

children as possible and minimize estate taxes.” Robert also 

testified that, “[a]s Erin had no children, the goal of the Family 

Trust was to ensure that the Walsh Estate would pass efficiently 

to Jean’s children with minimal estate tax impact.”

The provisions of the Family Trust also suggest that the 

primary goal of that trust was to leave as much money as 

possible to Jean’s children. The Family Trust designated the 

surviving trustor (i.e., Jean) as an income beneficiary of the 

Residuary Trust, with the Residuary Trust property to be 

distributed to Jean’s three children in equal shares upon the 

surviving trustor’s death. Only if one or more of those children 

predeceased the surviving trustor was the property of the 

Residuary Trust to be distributed to the deceased child’s issue “by 

right of representation.”

Thus, under the original terms of the Family Trust, if Joan 

had outlived Jean (instead of dying three months earlier, as 

actually happened), Joan would have inherited her portion of the 

Residuary Trust property and would have been free to do with 
18

that property what she wanted—including giving it away or 

bequeathing it to persons other than Dae. It is highly conceivable 

that, in executing the Family Trust, Erin and Jean expected that 

Jean’s children would outlive them and therefore would be free to 

dispose of their Residuary Trust property as they wished once 

they inherited it. The provision for inheritance by right of 

representation in the event a child predeceased the surviving 

Trustor could simply have reflected an intent to maintain equal 

treatment of all of Jean’s children and their families rather than 

specifically to provide a benefit to the Trustor’s grandchildren

from the Residuary Trust.8 If the Trustors had intended to 

ensure a benefit to the grandchildren from that trust, they could 

have included provisions in the trust instrument guaranteeing

the grandchildren’s inheritance regardless of when the 

grandchildren’s parents died.9

8 As mentioned, the grandchildren already were 

guaranteed some inheritance through the generation skipping 

trust.

9 Of course, as the trial court pointed out, under the 

express terms of the trust instrument Dae’s interest became fixed 

once his mother Joan died before Jean. The Trustors could have 

included a provision permitting Joan (and Jean’s other children)

to designate the beneficiaries of their portion of the Residuary 

Trust property in the event that they predeceased the surviving 

Trustor, but they did not do so. We do not purport to reach any 

ultimate resolution of these issues concerning the Trustors’ 

intent, which may depend upon extrinsic evidence. On this 

appeal from an anti-SLAPP motion, we decide only that Robert

has made the minimal showing necessary to support his claim 

that Dae’s Petition amounted to a contest.
19

This evidence supports a reasonable inference that the 

Trustors expected, and intended, the property of the Residuary 

Trust to pass to Jean’s children to use and distribute as they 

chose. If that inference is credited (as we must do in ruling on an 

anti-SLAPP motion), Jean’s conduct in establishing a trust giving 

Joan the power to appoint beneficiaries, and Jean’s and Robert’s 

conduct in permitting the transfer of the Residuary Trust’s assets

into that trust, may have been fully in accord with the Trustors’ 

original intent. Accordingly, Dae’s Petition challenging that 

conduct could amount to a contest.

We emphasize that we do not now decide that Dae’s 

Petition amounted to a “contest” for purposes of the No Contest 

Clause. Whether there has been a contest within the meaning of 

a particular no contest clause depends upon the individual 

circumstances of the case and the language of the particular 

instrument. (Burch v. George (1994) 7 Cal.4th 246, 254–255.) 

“ ‘[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 instrument in question. (Id. at p. 255, 

quoting Estate of Kazian (1976) 59 Cal.App.3d 797, 802.) 

Extrinsic evidence may exist that bears upon the proper 

interpretation of the trusts here, including evidence of the 

Trustors’ intent. (See Burch, at p. 254 [the interpretation of trust 

language is a question of law “unless interpretation turns on the 

credibility of extrinsic evidence or a conflict therein”].) On this 

appeal, we decide only that Robert has provided sufficient 

evidence that there was a contest to defeat Dae’s anti-SLAPP 

motion. We leave for the trial court to consider the merits of 

Robert’s no contest claim at a hearing on a fully developed record 

following discovery.
20

C. The evidence is sufficient for Robert to 

proceed on a claim that Dae’s Petition was 

frivolous

Citing Estate of Ferber (1998) 66 Cal.App.4th 244 (Ferber), 

Dae argues that to establish that the breach of fiduciary duty 

claims in Dae’s Petition triggered the No Contest Clause, Robert

will need to prove that those claims were frivolous.10 Dae further 

argues that this burden must be taken into consideration in 

determining whether Robert has demonstrated the minimal 

merit necessary to proceed on his No Contest Petition.

In Ferber, the court considered a no contest provision in a 

will that purported to disinherit any beneficiary who “objects in 

any manner to any action taken or proposed to be taken” by the 

executor or “unsuccessfully requests the removal of any person 

acting as an executor.” (Ferber, supra, 66 Cal.App.4th at p. 248.) 

A beneficiary sought a ruling under the safe harbor provision of 

the prior law that objections to an accounting and a petition to 

remove the executor would not violate the no contest clause. (Id. 

at pp. 248–249.) The court held that those claims would violate 

the no contest clause, but that the clause was unenforceable to 

the extent it purported to punish the beneficiary’s nonfrivolous 

breach of fiduciary claims. (Id. at pp. 250, 255.) The court 

concluded that this standard struck an appropriate balance 

between the competing public policies of permitting beneficiaries 

10 Ferber was decided prior to legislative changes to the no 

contest statutes in 2001, and prior to the Legislature’s major 

revisions to the no contest law in 2010 discussed above. The 

parties agree that Ferber was decided under the law that is 

applicable to this case.
21

to challenge fiduciary malfeasance and discouraging litigation 

that challenges a testator’s intent. (Id. at pp. 254–255.)

Robert argues that the frivolousness standard the court 

adopted in Ferber does not apply to the claims that Dae asserts. 

Robert argues that Ferber is distinguishable because the court in 

that case considered the enforceability of a no contest clause that 

was overbroad in purporting to prohibit any claim challenging 

fiduciary conduct. Robert points out that, in this case, Dae has 

never claimed that the No Contest Clause is unenforceable.

This ground for distinguishing Ferber is unpersuasive. The 

policy considerations that the court considered in Ferber reach 

more broadly than Robert suggests. The competing policies of 

discouraging litigation challenging a testator’s intent and 

permitting beneficiaries to remedy fiduciary misconduct are at 

play whenever a no contest provision is interpreted to punish a 

particular fiduciary duty claim. Under the court’s reasoning in 

Ferber, a no contest clause is overbroad whenever it imposes a 

forfeiture for bringing a claim that should be permitted as a 

matter of public policy. If the No Contest Clause in this case is 

interpreted to penalize a fiduciary duty claim that public policy 

would permit Dae to raise, it would be overbroad under the 

court’s reasoning in Ferber.

There are other persuasive reasons to follow Ferber here. 

First, subsequent cases have adopted Ferber’s reasoning. (See 

Fazzi v. Klein (2010) 190 Cal.App.4th 1280, 1289 (Fazzi) 

[following Ferber in concluding that a no contest clause could not 

apply to a nonfrivolous action to remove a trustee for cause]; 

Tunstall v. Wells (2006) 144 Cal.App.4th 554, 561 [citing Ferber 

for the proposition that “ ‘[b]eneficiaries must be free to raise 

public policy issues so the court may address them’ ”], quoting 
22

Ferber, supra, 66 Cal.App.4th at p. 252; Hearst, supra, 145 

Cal.App.4th at p. 1213 [citing Ferber at p. 253 for the proposition 

that “[n]o contest clauses that purport to insulate executors 

completely from vigilant beneficiaries violate the public policy 

behind court supervision”].)

Second, subsequent legislative actions validated Ferber’s 

concern for protecting fiduciary duty claims from the threat of 

forfeiture. Following the decision in Ferber, “the Legislature 

went one step further and banned the enforcement of a no contest 

clause against any action to remove a fiduciary.” (Fazzi, supra, 

190 Cal.App.4th at p. 1289, fn. 5.) It did so by adopting former 

section 21305. Former section 21305, subdivision (b), among 

other changes, declared that a pleading “ ‘(6) . . . challenging the 

exercise of fiduciary power’ ” does not violate a no contest clause 

“ ‘as a matter of public policy.’ ” (Ibid.; former § 21305, subd. (b).) 

That statute applied only to instruments that became irrevocable 

on or after January 1, 2001, and therefore does not directly apply 

here. (Ibid.; former § 21305, subd. (d); Hermanson v. Hermanson 

(2003) 108 Cal.App.4th 441, 445.) However, the legislative 

change was based on a public policy to permit claims of fiduciary 

misconduct that challenge a trustee’s failure to carry out the 

terms of a trust. (See Donkin, supra, 58 Cal.4th at pp. 436–438.)

In making that change, the Legislature concluded that this public 

policy was significant enough to establish broad protection for

fiduciary duty claims despite a no contest clause.

Finally, Dae’s Petition is based on the theory that Robert

engaged in self-dealing. It challenges Robert’s alleged conduct in 

permitting, or arranging, the transfer of Residuary Trust assets 

into the 2014 Gibb Trust for the purpose of allowing Joan to give

Robert’s children a portion of the inheritance that otherwise 
23

would have gone to Dae. If true, this conduct could constitute a 

violation of Robert’s duty “not to use or deal with trust property 

for the trustee’s own profit or for any other purpose unconnected 

with the trust, nor to take part in any transaction in which the 

trustee has an interest adverse to the beneficiary.” (§ 16004, 

subd. (a).) That would be malfeasance of a kind that concerned 

the court in Ferber.

Thus, we agree with Dae that, for Robert to prevail on his 

No Contest Petition, Robert will ultimately need to prove both 

that Dae’s Petition was a contest under the No Contest Clause 

and that at least one of the claims in Dae’s Petition was 

frivolous.11

However, Robert need not prove that claim now. Robert’s 

burden in responding to Dae’s anti-SLAPP motion was not to 

prove all the elements of his claim, but only to show that his No 

Contest Petition has “minimal merit.” This means that Robert

need only provide evidence that, if credited, is sufficient to show 

that one or more of the challenges in Dae’s Petition is frivolous. 

11 The analysis of whether a petition violates a no contest 

clause may differ by claim. (See Fazzi, supra, 190 Cal.App.4th at 

pp. 1288–1289 [separately analyzing claims in a petition seeking 

to remove a trustee and to disqualify a successor trustee].) As 

discussed above, Dae’s Petition contains numerous allegations 

and different claims, including at least the claims that (1) the 

$15 million obligation of the Residuary Trust incurred to 

purchase the life insurance policies was an improper personal 

expense and should be repaid by Robert or the Survivor’s Trust; 

(2) the 2014 Trusts paid inadequate consideration to acquire the 

Receivables from the Residuary Trust; and (3) Robert breached 

his fiduciary duties by orchestrating the funding of the 2014 Gibb 

Trust to benefit his family at Dae’s expense.
24

(Cf. Key, supra, 34 Cal.App.5th at pp. 531–539 [to prevail in the 

second step of an anti-SLAPP motion, proponent of a no contest 

petition was required to provide sufficient evidence showing that 

the respondent contested a trust without probable cause].) 

Robert has made such a showing.

As discussed above, Robert provided evidence that, with 

expert advice and counsel, he and Jean established the Split 

Dollar Trust Arrangement for the purpose of minimizing estate 

taxes to increase the assets available to beneficiaries. If this is 

true, Dae’s broad challenge to the Split Dollar Trust 

Arrangement would clearly implicate the No Contest Clause by 

“impair[ing]” the administration of the Trust. That would be 

sufficient for Robert to succeed on his No Contest Petition, 

causing forfeiture of Dae’s beneficial interest. Robert has 

therefore shown a probability of success on his No Contest 

Petition sufficient to meet the “minimal merit” test.12

12 At this stage of the proceedings, we also cannot foreclose 

the possibility that Robert might ultimately prove Dae’s more 

specific challenge to his own removal as a beneficiary is frivolous. 

As discussed above, that challenge is predicated on Robert’s

conduct in permitting the establishment and funding of the 2014 

Gibb Trust that enabled Joan to direct the disposition of her 

share of the Residuary Trust before Joan had actually received 

that share. Whether that conduct was consistent with the terms 

of the Family Trust depends upon the Trustors’ intent with 

respect to Jean’s children and grandchildren, which in turn may 

depend upon extrinsic evidence. While the current record does 

not show that Dae’s challenge to his own disinheritance was 

frivolous, evidence might develop that would make the continued 

pursuit of that theory unreasonable.
25

DISPOSITION

The trial court’s order is affirmed. Respondent Robert 

Traver is entitled to his costs on appeal.

CERTIFIED FOR PUBLICATION.

LUI, P. J.

I concur:

CHAVEZ, J.
Dae v. Traver, B305834

ASHMANN-GERST, J., Dissenting.

I conclude that the trial court should have granted the antiSLAPP motion1 filed by Ian C. Dae (Dae) to strike the no contest 

petition filed by Robert Traver (Robert)2 in his capacity as trustee 

of the Erin J. Walsh and Jean L. Walsh Family Trust (Family 

Trust) because he failed to demonstrate a probability of 

prevailing on his claims.

The majority, in contrast, concludes that Robert submitted 

sufficient evidence to suggest that Dae filed a contest because: 

(1) it is conceivable that he never had an irrevocable remainder 

interest in the Residuary Trust; (2) the cotrustees had the power 

to purchase the life insurance policies and transfer the 

receivables to the 2014 Gibb Trust and the 2014 Traver Trust as 

part of their estate planning; and (3) by contesting his de facto 

disinheritance from the Residuary Trust and the cotrustees’

estate planning decisions, Dae is contesting the terms of the 

1 The anti-SLAPP statute provides that “[a] cause of action 

against a person arising from any act of that person in 

furtherance of the person’s right of petition . . . shall be subject to 

a special motion to strike, unless the court determines that the 

plaintiff has established that there is a probability that the 

plaintiff will prevail on the claim.” (Code Civ. Proc., § 425.16, 

subd. (b).) “SLAPP” is an acronym for “strategic lawsuit against 

public participation.” (Monster Energy Co. v. Schechter (2019) 7 

Cal.5th 781, 785, fn. 1.)

2 Because multiple people connected to the Family Trust 

share various last names, we refer to some by their first names. 

No disrespect is intended.
2

Family Trust and the powers of the cotrustees. Also, the majority 

concludes that the evidence suggests that Dae’s claims are 

frivolous. 

For the reasons discussed below, I disagree.

I. Dae had an Irrevocable Remainder Interest in the 

Residuary Trust.

Whether Dae had an irrevocable remainder interest in the 

Residuary Trust requires interpretation of its terms.

Interpretation of a trust presents a question of law unless it 

turns on the competence or credibility of extrinsic evidence, or on 

a conflict in that evidence. (Ike v. Doolittle (1998) 61 Cal.App.4th 

51, 73 (Ike).) The intent of the trustor controls. (Ibid.) “[I]t is 

proper for the trial court in the first instance and the appellate 

court on de novo review to consider the circumstances under 

which the document was made so that the court may be placed in 

the position of the testator or trustor whose language it is 

interpreting, in order to determine whether the terms of the 

document are clear and definite, or ambiguous in some respect.” 

(Ibid.) “An ambiguity in a written instrument exists when, in 

light of the circumstances surrounding the execution of the 

instrument, ‘“the written language is fairly susceptible of two or 

more constructions.” [Citations.]’ [Citation.]” (Id. at p. 74.) 

“Where a trust instrument contains some expression of the 

trustor’s intention, but as a result of a drafting error that 

expression is made ambiguous, a trial court may admit and 

consider extrinsic evidence . . . to resolve the ambiguity and give 

effect to the trustor’s intention as expressed in the trust 

instrument. [Citation.]” (Ibid.)

The Family Trust specified: “After the death of one of the 

trustors, The Grandchildrens’ Trusts[] and The Residuary Trust
3

in each case shall be irrevocable and the surviving trustor shall 

not have the right to make additions to said trusts, or the right to 

change, alter, modify, or revoke said trusts in any manner 

whatsoever.” The Residuary Trust established that “[d]uring the 

lifetime of the surviving trustor, the trustees shall pay to, or for 

the benefit of, the surviving trustor, the entire net income of The 

Residuary Trust.” It also provided that “[u]pon the death of the 

surviving trustor, the trust property shall be divided into three 

equal shares which shall be distributed as follows: [¶] . . . [¶] 

[3] One share shall be distributed to Joan Traver Dae [(Joan)] if 

she [is] then [] living. If [Joan] is not then living, said share shall 

be distributed to her issue by right of representation.”

The trust terms are unambiguous. As Joan’s son, Dae had 

an irrevocable remainder interest in her share of the Residuary 

Trust if she predeceased Jean L. Walsh (Jean). It is impossible to 

read the trust as allowing Joan to decide that her share should be 

distributed to some other person or persons.

The majority suggests that the trust terms are ambiguous 

and could be construed as permitting Jean’s children to disinherit 

their issue when viewed through the lens of the following 

extrinsic evidence: “One of the two original Trustors of the 

Family Trust—Jean—established the 2014 Gibb Trust, which 

included the provision giving Jean’s daughter Joan the power to 

appoint the persons who would receive the assets of that trust 

upon Joan’s death.” (Maj. Opn., at p. 17.) Robert declared that 

“[a]s Erin [J. Walsh (Erin)] had no children, the goal of the 

Family Trust was to ensure that the Walsh Estate would pass 

efficiently to Jean’s children[.]” (Ibid.) “The Family Trust 

designated the surviving trustor (i.e., Jean) as an income 

beneficiary of the Residuary Trust, with the Residuary Trust 
4

property to be distributed to Jean’s three children in equal shares 

upon the surviving trustor’s death. Only if one or more of those 

children predeceased the surviving trustor was the property of 

the Residuary Trust to be distributed to the deceased child’s issue 

‘by right of representation.’” (Ibid.) “[U]nder the original terms 

of the Family Trust, if Joan had outlived Jean (instead of dying 

three months earlier, as actually happened), Joan would have 

inherited her portion of the Residuary Trust property and would 

have been free to do with that property what she wanted—

including giving it away or bequeathing it to persons other than 

Dae.” (Maj. Opn., at pp. 17–18.) 

The majority concludes that the “provisions of the Family 

Trust . . . suggest that the primary goal of that trust was to leave 

as much money as possible to Jean’s children.” (Maj. Opn., at 

p. 17.) It also concludes that “[t]he provision for inheritance by 

right of representation in the event a child predeceased the 

surviving Trustor could simply have reflected an intent to 

maintain equal treatment of all of Jean’s children and their 

families rather than specifically to provide a benefit to the 

Trustor’s grandchildren from the Residuary Trust. If the 

Trustors had intended to ensure a benefit to the grandchildren 

from that trust, they could have included provisions in the trust 

instrument guaranteeing the grandchildren’s inheritance 

regardless of when the grandchildren’s parents died.” (Maj. Opn., 

at p. 18, fns. omitted.) Per the majority, “This evidence supports 

a reasonable inference that the Trustors expected, and intended, 

the property of the Residuary Trust to pass to Jean’s children to 

use and distribute as they chose. If that inference is credited 

. . . , Jean’s conduct in establishing a trust giving Joan the power 

to appoint beneficiaries, and Jean’s and Robert’s conduct in 
5

permitting the transfer of the Residuary Trust’s assets into that 

trust, may have been fully in accord with the Trustors’ original 

intent. Accordingly, Dae’s Petition challenging that conduct 

could amount to a contest.” (Maj. Opn., at p. 19.) 

The problem with this analysis is that none of the evidence 

suggests that the phrase “said share shall be distributed to 

[Joan’s] issue by right of representation” contains words used by 

the trustors in a specialized way. For example, there is no 

evidence that the word “shall” was intended to mean may, or that 

the word “issue” was intended to mean any person of Joan’s 

choosing. (Estate of Dye (2001) 92 Cal.App.4th 966, 977 [evidence 

did not create an ambiguity in a will because it failed “to raise a 

semantically plausible alternative candidate of meaning”].) I 

therefore decline to interpret the language “shall be distributed 

to [Joan’s] issue” as meaning “shall be distributed as Joan 

specifies.” 

The majority suggests that we can interpret the Family 

Trust by looking at the primary goal of the trustors and their 

presumption about who would outlive who. I cannot concur. The 

court in Estate of Canfield (1967) 256 Cal.App.2d 647, 654 

explained—in the context of a will—that “[t]he fact that fate, as it 

often does, thereafter proved [a] decedent to have been mistaken 

in [assuming who would outlive who] does not authorize a trial or 

appellate court to rewrite a will under the guise of construing it 

to determine what the testator might have intended if he had 

survived to a later date and had written it in the light of 

subsequent developments.” (Ibid.) This observation applies with 

equal force here. 

Ultimately, the underpinning of the majority’s holding is 

found in its summation. “Robert provided sufficient evidence of 
6

the trustor’s intent to allow a change of beneficiary,” this 

“conclusion is limited to the context in which it arises—an antiSLAPP motion,” and the majority expresses “no opinion on how 

the probate court should ultimately rule on Robert’s petition.” 

(Maj. Opn., at p. 3.) Once this summation is unpacked, several 

significant points are revealed. The majority does not apply the 

rules of document interpretation to conclude that the language of 

the trust is reasonably susceptible to the interpretation that the 

remainder beneficiaries could be changed. Rather, it concludes 

that the evidence of the trustors’ intent offered by Robert was 

enough, by itself, to prove the potential meaning of the trust in 

the anti-SLAPP context. The implications thereby endorsed by 

the majority are: The rules of document interpretation as applied 

to trusts are suspended and/or relaxed for parties who are 

resisting anti-SLAPP motions. Moreover, if a party resisting an 

anti-SLAPP motion has an opinion regarding the meaning of a 

trust, that opinion must be accepted even if it is directly contrary 

to the plain language of the trust.

The language of the anti-SLAPP statute provides no room 

for the majority’s interpretation. In Jay v. Mahaffey (2013) 218 

Cal.App.4th 1522, 1537 (Jay), the defendants argued that when 

the statute states that “the court shall consider the pleadings, 

and supporting and opposing affidavits stating the facts upon 

which the liability or defense is based” (Code Civ. Proc., § 425.16, 

subd. (b)(2)), it means that a court must “consider all evidence 

submitted.” (Jay, supra, 218 Cal.App.4th at p. 1537.) In 

rejecting this argument, the court recognized that “the statute 

neither suggests nor states that normal rules of evidence and 

procedure do not apply to anti-SLAPP motions[.]” (Ibid.) I 

conclude that the normal rules of evidence and procedure were 
7

applicable here, i.e., we must adhere to the rules of document 

interpretation related to trusts when deciding if Robert’s petition 

had minimal merit. Allowing a defendant to survive an antiSLAPP motion if he or she has not shown an ability to prevail on 

a later motion or at trial is directly contrary to the stated purpose 

of the anti-SLAPP statute: to allow special motions to strike 

meritless actions and thereby curb the effect of lawsuits “brought 

primarily to chill the valid exercise of the constitutional rights of 

freedom of speech and petition for the redress of grievances.” 

(Code Civ. Proc., § 425.16, subd. (a).)

To the degree the majority intimates that a court can 

modify the Family Trust, I see it differently.

A trial court has the equitable power to modify an 

irrevocable trust, but only in exceptional circumstances. (Ike, 

supra, 61 Cal.App.4th at pp. 79–82.) The modification must be 

necessary to accomplish the purpose of the trustors as expressed 

in the trust instrument. (Id. at p. 80; Stewart v. Towse (1988) 

203 Cal.App.3d 425, 428.) 

In Adams v. Cook (1940) 15 Cal.2d 352 (Adams), investors 

placed real property into a trust to be sold by a date certain at a 

fixed price. (Id. at pp. 354, 360.) Any lease of the property had to 

be subject to its sale. “It was the intent of the trustors that the 

unit holders or beneficiaries under the trust should secure the 

largest return on their investment.” (Id. at p. 360.) After oil was 

discovered on the property, and after the oil was allegedly being 

drained by numerous wells drilled on adjacent property, the 

beneficiaries asked the probate court to allow the trustee to 

execute an oil lease free of the restrictions as to sale. The trial

court granted the relief, finding that if the trustee could not 

execute an oil lease, the property would become worthless. Our 
8

Supreme Court affirmed. (Id. at p. 363.) It noted that “a court of 

equity has the power to change the method of administering a 

trust estate[] when it is shown that such a change is necessary to 

prevent loss or destruction of the trust property[.]” (Id. at p. 358.) 

It explained that “the rule against courts modifying the terms of 

a contract . . . does not apply to declarations of trust, where the 

primary purpose of the trust would not be accomplished by a 

strict adherence to the terms of the declaration of trust[,] and 

that when it is made to appear in a court of equity . . . that the 

benefits and advantages which the trustors desired to confer 

upon the beneficiaries would not accrue to them by ‘a slavish 

adherence to the terms of the trust,’ the courts may modify the 

terms of the trust to accomplish the real intent and purpose of 

the trustors.” (Id. at p. 361.) 

“It is only under peculiar circumstances, such as those 

exemplified in [Adams], that a court has the power to modify an 

active trust. [Citations.]” (Moxley v. Title Ins. & Trust Co. (1946) 

27 Cal.2d 457, 468.) One such circumstance is when a drafting 

error defeats the trustor’s intentions. (Bilafer v. Bilafer (2008) 

161 Cal.App.4th 363, 369.)

The case at bar does not present an exceptional or peculiar 

circumstance in which a court is empowered to modify the 

Residuary Trust. There is no expression in the Family Trust that 

Joan could decide to change whether her issue take her share 

under the Residuary Trust if she predeceased the survivor of Erin 

or Jean. There was no drafting error in the Family Trust. A 

modification is not necessary to preserve the value of the trust 

property, as in Adams. In any event, the point is moot because 

Robert did not file a petition asking the probate court to modify 

the Family Trust. 
9

II. Dae did not File a Contest.

Whether there has been a contest within the meaning of a 

no contest clause depends upon the circumstances and the 

language used. A court must consider the purposes that the 

trustor sought to obtain by the provisions of his or her trust. 

(Estate of Strader (2003) 107 Cal.App.4th 996, 1002–1003.) 

Consequently, a contest has been construed to mean an attempt 

to thwart a testator’s intent. (Burch v. George (1994) 7 Cal.4th 

246, 262–263.) 

The intent of trustors—Erin and Jean—can be gleaned 

from the unambiguous terms of the Family Trust. They intended 

for Jean’s issue to receive her share of the Residuary Trust if she 

predeceased the surviving trustor. Dae’s petition is designed to 

enforce that intent, an intent that was thwarted when Jean and 

Robert breached their fiduciary duty to Dae by removing a large 

percentage of the assets from the Residuary Trust and placing 

the right to receive life insurance proceeds upon the death of 

Joan into a trust that failed to preserve Dae’s irrevocable 

remainder interest.3 The Family Trust never authorized the 

3 “Among the duties of the trustee is the duty to administer 

the trust and to manage trust property ‘with the care, skill, 

prudence, and diligence under the circumstances then prevailing 

that a prudent person acting in a like capacity and familiar with 

such matters would use in the conduct of an enterprise of like 

character and with like aims to accomplish the purposes of the 

trust as determined from the trust instrument.’ [Citation.]” 

(Estate of Gump (1991) 1 Cal.App.4th 582, 596 [citing Prob. Code, 

§ 16040, subd. (a)].) “The trustee has a duty to administer the 

trust solely in the interest of the beneficiaries.” (Prob. Code, 

§ 16002, subd. (a).) With respect to Dae, the cotrustees breached 

these duties. As a result, he was improperly cheated out of 

millions of dollars.
10

cotrustees to alter, revoke or modify Dae’s interest. For these 

reasons, I conclude that any challenge to the revocation of his 

interest (and the steps leading up to it) cannot be construed as a 

contest.

The majority suggests that if Dae wanted to avoid a 

contest, he should have focused his petition solely on his 

exclusion from the 2014 Gibb Trust. I part ways with the 

majority on this point. While the majority suggests that each 

decision made by the cotrustees must be viewed in a vacuum

when courts are deciding if there is a contest, I conclude that the 

decisions must be viewed together and judged by the result that 

they achieved.

Schwartz v. Schwartz (2008) 167 Cal.App.4th 733 does not 

compel a contrary conclusion. It merely held that withdrawing a 

petition that amounts to a contest does not save a party from the 

penalty of a no contest clause. (Id. at pp. 744–746.) It does not 

hold that a no contest clause is triggered when a wronged 

beneficiary alleges a deprivation that took multiple steps and an 

interim step was legitimate.

My analysis is bolstered by Robert’s declaration. He 

declared that Jean and he entered the split-dollar arrangements 

to minimize estate taxes based on the advice of financial advisors 

and legal counsel. He did not, however, specify how those 

arrangements minimized taxes, nor did he state whether all or 

only some of the steps leading up to the transfer of the insurance 

receivables into the 2014 Traver Trust and 2014 Gibb Trust were 
11

necessary for the stated goal.4 I can only assume that all the 

steps were necessary, including the creation of the 2014 Traver 

Trust and the 2014 Gibb Trust. In other words, they all had a 

common goal. Those trusts did not preserve Dae’s irrevocable 

remainder interest in Joan’s share of the Residuary Trust 

following Jean’s death. If that is true, then every step the 

cotrustees took must be viewed as interrelated steps in a scheme 

designed to achieve a goal that thwarted the terms of the 

Residuary Trust. While the cotrustees were granted the power to 

“borrow money for any trust purpose,” their decision to borrow 

money to pay for the life insurance policies was not for a trust 

purpose because it ended up serving the interests of Robert’s 

family at the expense of Dae.

My point is reinforced by the power of appointment in the 

2014 Gibb Trust. Joan was not able to give her share away to 

anyone she chose. Her power could be exercised only in favor of 

“[Jean’s] issue, and qualified charitable organizations[.]” In other 

words, the cotrustees created a trust with a power of 

appointment that, if exercised, was highly likely to benefit 

Robert, his children, or both because—other than Dae—they were 

Jean’s only remaining issue.

The trial court thought it was relevant that Jean and he 

received financial and legal advice before entering the split-dollar 

arrangements. But there is no “professional advice defense” to 

4 Robert declared that following Joan’s death, the 2014 Gibb 

Trust received $16.2 million free of federal estate tax. I presume 

this is accurate. The point of noting that Robert did not explain 

whether all or some of the steps taken were necessary for tax 

planning purposes is this: he has rendered the courts unable to 

properly judge the purpose of each of those steps.
12

breach of fiduciary duty. In other words, a fiduciary does not 

have license to breach his or her duty just because a professional 

advised the course of action.

Robert suggests that all the blame for Dae being 

disinherited falls on the shoulders of Joan. This is an attempt at 

misdirection, and it fails. Robert and Jean gave Joan the power 

to disinherit Dae. That was a violation of their fiduciary duties 

that should not be excused.

III. Even if Dae Filed a Contest, it was Not Frivolous.

As announced by the majority, the reasoning of Estate of 

Ferber (1998) 66 Cal.App.4th 244 indicates that a no contest 

clause is overbroad when it imposes a forfeiture for bringing a 

nonfrivolous claim of fiduciary misconduct. In this case, it is 

undeniable that Jean and Robert breached their fiduciary duty to 

Dae by engaging in estate planning that operated to exclude him 

rather than include him. Dae’s petition is not totally and 

completely without merit (Code Civ. Proc., § 128.5, subd. (b)(2)) 

and cannot be labeled as frivolous. After all, millions of dollars 

that should have gone to Dae pursuant to the unambiguous 

terms of the Residuary Trust ended up going to Robert and his 

family.

IV. Conclusion.

Robert failed to provide sufficient evidence demonstrating 

that his no contest petition had minimal merit. I would reverse 

and remand with directions to the trial court to grant Dae’s antiSLAPP motion. He should not have to incur the expense of 

defending against unmeritorious allegations that are seeking to 
13

punish him for exercising his right of petition under our state and 

federal Constitutions.

__________________________, J.

ASHMANN-GERST