Filed 4/3/20

CERTIFIED FOR PARTIAL PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

ANNEMARIE DONKIN et al.,

Plaintiffs and Respondents.

v.

RODNEY E. DONKIN, JR., et al. 

as Trustees, etc.,

Defendants and Appellants,

 B293127

 (Los Angeles County

 Super. Ct. No. BP109463)

APPEAL from an order of the Superior Court of 

Los Angeles County, David J. Cowan, Judge. Affirmed.

Rodney E. Donkin, Jr., in pro. per., for Defendant and 

Appellant Rodney E. Donkin, Jr., as Trustee, etc. 

Vicki R. Donkin, in pro. per., for Defendant and Appellant 

Vicki R. Donkin, as Trustee, etc.

Mark H. Boykin for Plaintiffs and Respondents Annemarie 

Donkin and Lisa B. Kim.

 

 Pursuant to California Rules of Court, rules 8.1100 and 

8.1110, this opinion is certified for publication with the exception 

of the Factual and Procedural Summary post, and the Discussion 

post, parts A. and B.
2

Appellants Rodney E. Donkin, Jr., and Vicki Rose Donkin

(Trustees), as successor trustees of a family trust established 

by Rodney Donkin, Sr., and Mary Donkin (Trustors), appeal 

from an order in which the trial court rejected Trustees’ proposed

interpretation of the trust, reflected in their petition for 

instructions. Specifically, the court concluded the trust was not a 

continuing discretionary spendthrift trust and instead obligated

Trustees to distribute a portion of the trust estate to respondents 

Annemarie Donkin and Lisa B. Kim (Beneficiaries) “as soon as 

is practicable” after both Trustors died. The trial court further 

concluded that Beneficiaries’ efforts seeking such distribution via 

a petition for surcharge and to account were not barred by the 

statute of limitations in Probate Code1 section 16061.8, because 

these efforts did not constitute an action “contest[ing]” the trust. 

(§ 16061.8.)

We agree with the trial court on both points. We further 

reject Beneficiaries’ contention that, because the Trustees 

represent themselves in their dispute with Beneficiaries 

regarding the interpretation of the trust, the Trustees engaged 

in the unauthorized practice of law. Accordingly, we affirm.

 

1 Unless otherwise indicated, all further statutory 

references are to the Probate Code. 
3

FACTUAL AND PROCEDURAL SUMMARY

A. The Donkin Family Trust 

In August 1988, Rodney E. Donkin (Rodney, Sr.)

2

and Mary E. Donkin (Mary), a married couple, executed a 

revocable trust as part of their estate plan, which they then 

amended in 2002 (the trust document).

3 According to the trust 

document, the primary beneficiaries of the trust after the death

of both Trustors were their children: Rodney E. Donkin, Jr.

(Rodney, Jr.); Lisa B. Kim (Lisa); and Annemarie N. Donkin 

(Annemarie). “Rodney Jr. and his wife Vicki R. Donkin 

were named as ‘[f]irst’ co-successor trustees, while Lisa and 

Annemarie . . . were relegated to the position of ‘[s]econd’

co-successor trustees.”4 (Donkin II, supra, B266036, at p. 4.)

The trust document provides that, upon the death of 

the first Trustor (the predeceasing spouse or decedent), “the 

Trustee shall divide the Trust Estate into two . . . separate 

shares”: (1) the “Survivor’s Trust” (Trust A), consisting of the 

surviving spouse’s interest in Trustors’ community property and 

 

2 To avoid confusion, we use first names to identify the 

various members of the Donkin family. No disrespect is intended 

thereby.

3 The effect of the 2002 amendment is not at issue on 

appeal. 

4 In our March 2017 unpublished opinion, Donkin v. 

Donkin (Mar. 29, 2017, B266036) (Donkin II), we summarized 

many of the key underlying facts of the dispute between the 

parties. We republish portions of that summary in our recitation 

of the relevant factual background.
4

the surviving spouse’s separate property, and (2) the “Decedent’s 

Marital Share,” consisting of the predeceasing spouse’s interest

in the community property and the predeceasing spouse’s 

separate property. (Underlining omitted.)

Upon the death of the surviving spouse, the trust document 

requires the trustee to further divide the decedent’s marital 

share into decedent’s Trust B and decedent’s Trust C. The 

trustee is to include in Trust B only assets in an amount up to 

the maximum marital deduction from federal estate tax,

5 and to 

allocate the remainder of the marital share to Trust C.

 

5 In Donkin v. Donkin (2013) 58 Cal.4th 412, 416 

(Donkin I), the California Supreme Court explained the marital 

deduction and its role in estate planning as follows: “Federal 

law allows the property of a deceased spouse to be passed to the 

surviving spouse without payment of federal estate tax through 

the allowance of a ‘marital deduction.’ (Int.Rev.Code, § 2056.) 

The value of the estate of the surviving spouse is increased by 

such a passage of assets and it may be enlarged to the point 

where it will exceed the federal unified tax credit allowable 

to the estate when the surviving spouse dies. (Id., § 2010 . . . .) 

A common method of addressing such a situation, having the 

purpose of minimizing the estate taxes owed, is to provide for the 

transfer to the surviving spouse of only as much of the deceased 

spouse’s property as necessary to reduce the deceased spouse’s 

estate tax to zero with use of the applicable federal estate tax 

exemption. The property remaining in the deceased spouse’s 

estate is placed in a bypass trust, which makes those assets 

available for the surviving spouse’s use but does not give the 

surviving spouse rights to the property in the bypass trust 

that would cause any of the undistributed trust property to be 

included in the taxable estate of the surviving spouse upon his 

or her death. [Citations.] Thus, ‘the undistributed assets of the 
5

1. Revocability 

“[T]he surviving spouse’s Trust A remains revocable” after 

the predeceasing spouse dies. By contrast, “[u]pon the death of 

[the predeceasing] spouse . . . [d]ecedent’s Trusts B [and] C . . . 

become irrevocable.” (Underlining omitted.) Other provisions 

in the trust describe Trusts B and C as becoming irrevocable 

“[u]pon creation of such Trust shares [B and C].” Given that the

trust document obligates the trustee to create shares B and C

“[u]pon the death of [the predeceasing] spouse,” however, these 

provisions effectively render Trusts B and C irrevocable upon the 

death of the predeceasing spouse. (Underlining omitted.)

“Upon the death of both [Trustors], the entire Trust 

becomes irrevocable.” (Underlining omitted.)

2. Allocation and distribution upon 

the death of the surviving spouse 

The trust further provides that, “[u]pon the death of 

the Surviving Spouse, the Trustee shall hold, administer and 

distribute the Trust in the following manner.” The provisions 

that immediately follow do several things. First, they allow 

for the distribution of Trustors’ personal property per a separate 

memorandum Trustors may choose to execute. Second, they

give the trustee discretion “[a]t any time prior to the division 

of the trust into shares as hereinbefore provided, or prior 

to distribution if divided,” to provide sums for “care and

maintenance, medical needs, and education of any primary 

beneficiary” and to make “Extraordinary Distribution[s]” 

 

decedent’s estate . . . “bypass” the survivor’s estate.’ ” (Donkin I, 

supra, 58 Cal.4th at p. 416.) 
6

for “worthwhile personal, professional or business goals” of a

beneficiary. (Underlining omitted.) Third, they instruct the 

trustee not to make distributions to any beneficiary deemed by 

a court to be incompetent, and permit the creation of a special 

needs trust under such circumstances. Fourth, they instruct 

the trustee to reduce any beneficiary’s share by the amount of 

any loan or gift made to the beneficiary by the trust. 

At the conclusion of these provisions, the trust document 

identifies the primary beneficiaries and requires that “[w]hen 

the above conditions are satisfied, the debts and obligations of 

the Trust Estate have been paid, and any special bequests have 

been distributed, the Trustee shall allocate and divide [the] Trust 

Estate as then constituted into separate shares so as to provide 

one share for each of the designated Primary Beneficiaries living 

at the death of the Surviving Settlor.” (Italics added.) Finally, 

“the Trustee shall distribute the shares allocated to Primary 

Beneficiaries outright as soon as is practicable.” (Italics added.)

B. Mary’s Efforts to Amend the Trust Document 

In 2002, Rodney, Sr., died.

In 2004, shortly before her own death, Mary executed an

amendment to the trust document (the contested amendment). 

The contested amendment “did two things. First, it substituted 

a new paragraph regarding the allocation of the trust assets 

after her death as the surviving spouse. Instead of directing 

an immediate allocation and division of the assets into separate 

shares for the beneficiaries, the new paragraph grants the 

successor trustees—which would initially be Rodney Jr. and 

Vicki—‘complete discretion’ after the death of Mary to retain 

the assets of the Family Trust intact and to continue to manage 

the property for the equal benefit of the primary beneficiaries. 
7

Among other things, the new paragraph granted the successor 

trustees ‘sole discretion’ over distribution of income and principal 

from the Trust to the beneficiaries.” (Donkin II, supra, B266036, 

at p. 5.) The language in the contested amendment did not 

differentiate between Trusts A, B, and C in any respect.

In 2005, Mary died.

C. Litigation and Resulting Law of the Case

Regarding the Trust Document’s No

Contest Provisions

The trust document contains a no contest clause. The 

contested amendment also includes a no contest clause, phrased 

slightly more broadly than that in the trust document. For 

several years beginning in 2008, Trustees and Beneficiaries

litigated issues involving the no contest clauses and the effect of 

the contested amendment.

1. Beneficiaries’ 2010 petition for surcharge 

and to account 

Primarily, Trustees and Beneficiaries litigated whether

Beneficiaries would trigger either no contest clause by filing a

petition seeking an order for surcharges and to account based 

on Trustees’ alleged failure to distribute the assets in Trusts B 

and C upon Mary’s death (the 2010 petition). (See generally 

Donkin II, supra, B266036, at pp. 6-8.) Beneficiaries based the 

2010 petition on their reading of the trust document provisions 

governing the distribution of decedent’s Trusts B and C, and their 

view that Mary lacked authority to alter these terms through the 

contested amendment, because Mary executed it after Trusts B 

and C had become irrevocable. (See Donkin I, supra, 58 Cal.4th 

at pp. 435–436.)
8

2. California Supreme Court decision 

(Donkin I) 

Changes in the Probate Code sections regarding no 

contest clauses6 further complicated this dispute, resulting in a 

2013 California Supreme Court decision. (See Donkin I, supra, 

58 Cal.4th 412.) In the portions of that decision relevant to our

current analysis, the Court held that, under either the new or

the old law regarding the enforceability of no contest provisions, 

“the no contest clauses in the [trust document] are unenforceable 

against” the 2010 petition “challenging the conduct of the 

successor trustees under the asserted authority of the [contested]

[a]mendment” (id. at pp. 415–416), because the 2010 petition 

does not constitute a “contest” as defined in section 21311, 

subdivision (a). (Donkin I, supra, 58 Cal.4th at p. 432; see 

§ 21311, subd. (a) [itemizing the “types of contests” against 

which a no contest clause may be enforced].) Rather, the Court 

explained, the 2010 petition sought an interpretation regarding 

the effect of the contested amendment on the trust document, and 

requested distribution in accordance with Beneficiaries’ preferred 

interpretation, neither of which violates a no-contest clause. 

(Donkin I, supra, at pp. 432–433 & 435-436.) 

 

6 “On January 1, 2010, changes to the Probate Code 

eliminated the safe harbor provisions of section 21320, pursuant 

to which a party could obtain a declaration from the court prior 

to instituting an action that the proposed action would not violate 

the no contest clause of the instrument at issue.” (Donkin II, 

supra, B266036, at p. 6.)
9

3. Trustees’ 2014 petition for instructions 

In further trial court proceedings on remand from the 

Supreme Court, Trustees filed a petition for instructions with 

the trial court (the 2014 petition). The 2014 petition raised 

two issues, only one of which is relevant to the current appeal. 

Namely, it sought instructions regarding “the proper 

interpretation of the allocation paragraph in the Trust as 

amended by the [contested] [a]mendment.” (Donkin II, supra, 

B266036, at p. 10.) This request tracked the Supreme Court’s 

comment that “[i]t is up to the court or arbitrator to rule on 

the merits of the parties’ conflicting interpretation of the trust 

instrument in the future, if the beneficiaries choose to pursue 

their claims [in the 2010 petition].” (Donkin I, supra, 58 Cal.4th 

at p. 438.) The 2014 petition effectively asked the trial court to 

issue such a ruling.

4. The 2017 decision of this court (Donkin II) 

The trial court’s initial decisions regarding the 2014 

petition and 2010 petition resulted in another appeal to this 

court. We reversed in part, because the trial court had refused to 

hear the 2014 petition, based on its incorrect conclusion that the 

petition presented only issues already decided by the Supreme 

Court in Donkin I. (Donkin II, supra, B266036, at p. 22.) We 

remanded for the trial court to hear and decide the 2014 petition.

(Id. at p. 30.) It is the trial court’s decision following such 

remand that is currently before us for review. 
10

D. Trial Court’s June 2018 Order

In minute orders dated October 27, 2017 and January 17, 

2018, the court provided a detailed and thoughtful discussion 

of the September 2014 petition and, relatedly, certain issues 

involved in the 2010 petition.

Specifically, the trial court concluded that, following the 

death of Rodney, Sr., in 2002, the decedent’s Trust B became 

irrevocable, meaning that Mary lacked authority after that 

point to “alter the terms of the Trust as they pertain to Trust B.”

As such, Trusts B and C were to be distributed on the terms set 

forth in the trust document, not the contested amendment.

The court further concluded that the trust document 

provisions, when read together, required the “Trustees . . .

to have distributed to Beneficiaries their share of what 

Trustees should have allocated to Trust B upon Mary passing.”

In reaching this conclusion, the court rejected Trustees’ 

arguments that trust document provisions granting the

Trustees discretion with respect to “Support and Education” 

and “Extraordinary Distribution” rendered the entire trust a 

“continuing conditional discretionary, spendthrift trust that 

did not require the assets to be distributed immediately upon 

Mary’s death.” (Underlining omitted.) “That Trustees have 

certain discretionary powers and have general powers do not 

in and of themselves give them discretion to disregard specific 

provisions of the Trust. Discretion does not include just doing 

whatever Trustees wanted.”

The court based its analysis on its interpretation of 

the trust’s allocation, distribution and revocability provisions, 

considering them in the context of the larger trust document. 

The court rejected Trustees’ argument that it should consider 
11

extrinsic evidence of Mary’s intent in executing the contested 

amendment, explaining that, given the inability of the contested 

amendment to govern Trusts B and C, the only intent potentially 

relevant to interpreting provisions governing Trusts B and C 

was the intent of Mary and/or Rodney, Sr., in drafting the trust 

document.

Having determined that the trust obligated the Trustees 

to allocate and distribute the assets in Trusts B and C to 

Beneficiaries upon Mary’s death, the court continued the 2010 

petition for surcharge “for further hearing to determine whether 

Trustees are liable or not, and if so, in what amount, for the 

alleged surcharge in view of the [court’s] decision . . . and in 

connection with accountings for the relevant time periods.” 

Such continuance was necessary, the court explained, because 

it needed to determine what “amounts or assets . . . should have 

been distributed on Rodney’s death and what was not,” and, in 

turn, “what should have been distributed when Mary died.” 

Finally, the court rejected Trustees’ argument that the

2010 petition is barred by the statute of limitations set forth

in section 16061.8. The court explained that this section applies 

only to “contests,” and that the California Supreme Court had 

already concluded that respondents’ 2010 petition did not 

constitute a “contest.” (Donkin I, supra, 58 Cal.4th at p. 432.)

The court issued a June 25, 2018 order, which incorporated 

by reference its October 2017 and January 2018 orders and the 

reasoning provided therein. Trustees timely appealed. 
12

DISCUSSION

A. Trustees’ Arguments and Standard of Review

We can discern two primary arguments from Trustees’ 

briefing on appeal. First, Trustees contend the trial court 

erred in concluding that the statute of limitations for “action[s]

contest[ing] [a] trust” was inapplicable to Beneficiaries’ claims. 

(§ 16061.8.) According to Trustees, because Beneficiaries seek

distribution of Trusts B and C in a manner inconsistent with 

Mary’s contested amendment, Beneficiaries are “contest[ing]”

a trust document (the contested amendment), regardless of 

whether the contested amendment actually amended the terms 

governing distribution of Trusts B and C or not.

Second, Trustees argue that, even if the contested

amendment did not amend the terms of the trust document 

regarding Trusts B and C, Trustees were not required to 

distribute the assets in these trusts upon Mary’s death, and 

may instead continue to manage them as part of a continuing 

discretionary spendthrift trust. They argue the trial court 

erred in rejecting this interpretation of the trust document and 

permitting Beneficiaries to proceed with their 2010 petition.

These arguments challenge the trial court’s interpretation 

of the Probate Code and the trust document. We review

both types of questions de novo.7 (Brown v. Labow (2007) 

 

7 As a general rule, orders “[c]ompelling the trustee 

to submit an account or report acts as trustee” are not 

appealable. (§ 1304, subd. (a)(1).) There is an exception 

to this rule, however, where, as here, the order requiring a 

trustee to account “expressly or implicitly decides other issues 

that could be the subject of an appealable probate order,” such 
13

157 Cal.App.4th 795, 812 [“[t]he interpretation of a trust 

instrument, like any written document, is a question of law”]; 

People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 

415, 432 [meaning and construction of statutes reviewed 

de novo].)

Based on our independent review of the applicable law 

and the trust document, we conclude that none of Trustees’ 

arguments has merit, and find no error in the trial court’s order. 

B. The Trial Court Correctly Interpreted the Trust 

Document and Correctly Rejected Trustees’ 

Statute of Limitations Argument

1. The trial court correctly concluded that 

the contested amendment had no effect 

on Trusts B and C

A threshold issue in the court’s decision below is whether, 

after Rodney, Sr.’s death, Mary had authority to amend the terms 

of the trust document regarding Trusts B and C, and whether, as 

a result, the contested amendment governs the distribution of the

assets in these trusts. 

Although it is not entirely clear from their briefing, 

Trustees do not appear to be challenging the trial court’s ruling 

in this regard. Instead, Trustees seem to want to ignore the issue 

by arguing that, “whether Mary did or did not have the right to 

 

as the interpretation of a trust. (Esslinger v. Cummins (2006) 

144 Cal.App.4th 517, 522.) The remainder of the trial court’s 

decision addressing appellants’ petition for instructions likewise 

“[d]etermine[s] questions of construction of a trust instrument” 

and is also appealable. (See §§ 17200, subd. (b)(1), 1304, 

subd. (a).)
14

amend the entire Trust is irrelevant. The fact remains that Mary 

did amend the Trust.”

It is axiomatic, however, that an amendment Mary had 

no legal authority to execute can have no legal effect. We agree 

with the trial court that, following Rodney, Sr.’s death, Mary 

lacked the authority to alter the terms of the trust document 

governing Trusts B and C. The plain language of the trust 

document provides Trusts B and C became “irrevocable” at that 

point, meaning Mary “was not at liberty to change that planned 

distribution after [Rodney, Sr.’s] death.” (Aguilar v. Aguilar

(2008) 168 Cal.App.4th 35, 40; see Heaps v. Heaps (2004) 

124 Cal.App.4th 286, 291–292 [attempts to transfer assets 

from irrevocable trust to different trusts constituted conversion]; 

see also § 15403, subd. (a) [requiring consent of beneficiaries to 

amend terms of irrevocable trust].) 

That Trusts B and C became irrevocable and were not 

subject to amendment following Rodney, Sr.’s death is also 

consistent with the “Donkins’ clear intent to establish an estate 

plan that minimizes estate taxes.”

8 (Donkin I, supra, 58 Cal.4th 

at p. 418, fn. 3.) “ ‘To avoid federal estate tax inclusion in the 

surviving spouse’s estate, the bypass trust [here, Trust B,] must 

be irrevocable and unamendable on and after the first spouse’s 

death.’ ” (Id. at pp. 416–417, quoting 2 Drafting Cal. Revocable 

Trusts (Cont.Ed.Bar 4th ed. 2003), Revocation and Amendment, 

§ 20.6, p. 20–14 (rev. 9/13).) Thus, Mary’s inability to amend 

 

8 In other contexts, the trust document also clarifies this 

desire to reap the benefits of the federal marital deduction 

through the creation of Trusts B and C is paramount and should 

trump other provisions.
15

terms governing Trust B (and, by extension, Trust C) after 

Rodney, Sr.’s death is necessary in order to secure the benefit of 

the federal marital deduction. (See Donkin I, supra, 58 Cal.4th 

at pp. 416–417; McIndoe v. Olivos (2005) 132 Cal.App.4th 483, 

489 [surviving spouse could not amend trust terms regarding 

exempt trust because this would give her “power over the assets 

in the exempt trust, a result the trustors clearly did not intend, 

as evidenced by their use of a marital deduction and exempt 

trust”].) 

Thus, the trial court correctly concluded that Trusts B 

and C should be distributed according to the original terms of 

the trust document, not the terms of the contested amendment. 

This key conclusion guides our analysis of Trustees’ arguments, 

which we discuss below. 

2. The trial court correctly determined the 

Beneficiaries’ claims in the 2010 petition 

are not a “contest” and thus are not 

time-barred

Section 16061.8 imposes time limitations on when an 

individual “may bring an action to contest [a] trust.” (§ 16061.8.) 

Trustees argue that, because the Beneficiaries filed their 2010 

petition after the deadline imposed by section 16061.8, the 

petition is time-barred. We disagree. 

As discussed above, the trust document, not the contested 

amendment, governs Trusts B and C. The 2010 petition 

requesting distribution of Trusts B and C in accordance with 

the terms of the trust document, rather than the contested 

amendment, is thus not an action contesting a trust, but 

an action requesting timely execution of a trust’s provisions. 

To the extent the 2010 petition seeks to enforce a particular 
16

interpretation of these provisions, “[s]uch calls for interpretation 

[also] do not violate no contest clauses.” (See Donkin I, supra, 

58 Cal.4th at pp. 433–434 [“beneficiaries’ claims, although 

sometimes couched in terms suggesting they are arguing 

the validity of the [contested amendment], at bottom seek an 

interpretation of the Family Trust instrument, rather than to 

void any portion of it or to set aside its distributive plan”] (italics 

omitted).) 

Moreover, “ ‘[w]hether there has been a “contest” within 

the meaning of a particular no-contest clause depends upon 

the circumstances of the particular case and the language used.’ ” 

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

§ 21310, subd. (a) [defining “contest” as “a pleading filed with 

the court by a beneficiary that would result in a penalty under 

a no contest clause, if the no contest clause is enforced”].) The 

California Supreme Court held in Donkin I that Beneficiaries’ 

2010 petition did not trigger the no contest clauses in either 

the trust document or contested amendment.

9 Thus, the 2010 

petition “is not a contest of the [trust document] as defined by 

the trust’s language, and . . . section 16061.8 does not apply.” 10

(Yeh v. Tai (2017) 18 Cal.App.5th 953, 967.) 

 

9 While some of Trustees’ arguments are directed at 

Beneficiaries 2017 trial brief, their arguments involve the 

same claims on which the 2010 petition is based, and likewise 

constitute requests for execution and/or interpretation.

10 Trustees briefly argue that, through the contested 

amendment and its no contest clause, Mary “require[d] a 

beneficiary to accept the Trust’s terms, as amended” (boldface 

omitted and italics added), such that, when Beneficiaries called 

into question Mary’s authority to amend all aspects of the trust 
17

Trustees’ only argument as to why the Supreme Court’s 

decision in Donkin I is not dispositive of Trustees’ statute 

of limitations argument is that the Supreme Court “believed 

that . . . Beneficiaries were seeking an interpretation of the 

instrument’s terms through an understanding of what they view 

as Mary’s probable intent,” and, therefore, the case stands only 

for the proposition that a request to ascertain Mary’s intent is not 

a “contest.” We disagree. Trustees identify no specific language 

in Donkin I to support their characterization of the Supreme 

Court’s decision in this way. Nor can we find any language in 

the Court’s opinion that supports this characterization. To the 

contrary, although Trustees’ arguments to the Supreme Court 

focused on Mary’s intent, the Supreme Court’s reasoning looked 

both at Mary’s intent and her authority with respect to Trusts B 

and C following Rodney, Sr.’s death. (See, e.g., Donkin I, supra, 

58 Cal.4th at pp. 435–436.)11

 

through the contested amendment, they contested the trust. 

This argument merely assumes the validity of the contested 

amendment as applied to Trusts B and C. If the contested 

amendment never became part of the trust document’s 

terms governing Trusts B and C, challenging the contested 

amendment in this respect does not contest the trust document. 

11 “The successor trustees’ argument, however, is premised 

on a description of the nature of the beneficiaries’ claim that 

is not accurate. As we understand the beneficiaries’ argument, 

the beneficiaries are not challenging the actions of Mary in 

executing the Trust’s Second Amendment per se, nor do they 

argue that the Trust’s Second Amendment is void. Rather, the 

beneficiaries argue in favor of an interpretation of the Family 

Trust instrument, including the Trust’s Second Amendment, 

different from the one urged by the successor trustees. The 
18

The trial court correctly concluded that the Beneficiaries’

claims, and the 2010 petition specifically, were not subject to 

section 16061.8’s time limitations on “action[s] . . . contest[ing] [a]

trust.” (§ 16061.8.)

3. The trust document required distribution 

of Trusts B and C as soon as is practicable 

after Mary’s death

Trustees argue that, even if the contested amendment 

did not alter the terms applicable to Trusts B and C, the trust 

document creates a “continuing conditional discretionary 

spendthrift Trust that did not terminate and did not require 

immediate distribution upon Mary’s death.” (Boldface omitted.) 

Trustees point to various provisions throughout the trust 

document that create trustee discretion to manage certain 

types of distributions at certain times. Consistent with basic 

canons of trust interpretation, we do not read these provisions

 

beneficiaries’ contentions seek to establish the meaning of the 

instrument’s terms through an understanding of what they 

view as Mary’s probable intent. They argue that because Mary 

possessed only limited authority after the death of Rodney to 

alter the provisions of the Family Trust and could not validly 

amend the trust with respect to his Decedent’s Marital Share, 

the new paragraph substituted by the Trust’s Second Amendment 

regarding the allocation of trust assets after Mary’s death must 

have been intended by her to govern, and should be interpreted 

to govern, only the assets of Survivor’s Trust A. Consistent with 

this interpretation, the beneficiaries argue that the trust’s 

distribution paragraph, left unaltered by the Trust’s Second 

Amendment, required the assets of the Decedent’s Trusts B 

and C to be distributed ‘outright as soon as is practicable’ after 

the death of Mary.” (Donkin I, supra, 58 Cal.4th at pp. 435–436.) 
19

as permitting Trustees discretion to manage Trusts B and C

indefinitely.

In interpreting a trust, courts seek to ascertain the 

trustor’s intent, which requires that “we look first to the 

terms of [the] trust.” (Burch, supra, 7 Cal.4th at pp. 256, 258.) 

“The words of an instrument are to be given their ordinary 

and grammatical meaning unless the intention to use them 

in another sense is clear and their intended meaning can 

be ascertained.” (§ 21122.) Furthermore, “[t]he words of an 

instrument are to receive an interpretation that will give every 

expression some effect, rather than one that will render any of 

the expressions inoperative.” (§ 21120.)

Here, the only way to give effect to all terms of the trust 

document regarding Trusts B and C is to interpret the provisions 

Trustees cite as granting Trustees discretion for a brief period 

following Mary’s death, during which the Trustees may need 

to handle various tasks in preparation for final distribution.

Namely, in the section “Allocation and Distribution of 

Trust Assets” (all capitalization omitted), the trust document 

first requires that “[u]pon the death of the Surviving Spouse, 

the Trustee shall hold, administer and distribute the Trust 

in the following manner.” The sections that immediately 

follow set forth various tasks that may be necessary prior 

to the distribution of the trust assets, such as disposing of 

Rodney, Sr.’s, and Mary’s personal property as required in a 

separate memorandum, should one exist, deducting the amount 

of any loans or gifts from a beneficiary’s share, and establishing, 

if necessary, a special needs trust for any incompetent 

beneficiaries. Among these sections are also the provisions on 

which Trustees rely, which create trustee discretion to distribute 
20

funds for the support and education of the beneficiaries, or 

otherwise as “necessary or advisable” for their benefit, “prior 

to the division of the trust into shares as hereinbefore provided, 

or prior to distribution if divided.” The trust document then

identifies when such division and distribution of assets should

occur: “When the above conditions are satisfied, the debts and 

obligations of the Trust Estate have been paid, and any special 

bequests have been distributed, the Trustee shall allocate 

and divide this Trust Estate as then constituted” and “[a]fter 

allocating and dividing the residual of the Trust Estate into 

shares, the Trustee shall distribute the shares allocated to 

Primary Beneficiaries outright as soon as is practicable.” (Italics 

added.)

The provisions addressing distribution thus speak in 

mandatory terms and plainly do not contemplate Trustees

retaining control over Trusts B and C after Mary’s passing 

for any longer than is necessary to address any applicable 

administrative tasks the trust documents designate as conditions

precedent to division and distribution. This reading of the trust 

document uses the ordinary meaning to the phrase “as soon 

as is practicable,” while also giving effect to all provisions 

discussing the Trustees’ discretion following Mary’s death. 

The interpretation Trustees urge, by contrast, would render 

meaningless the requirement that distribution take place “as 

soon as is practicable” and be “outright” to the Beneficiaries. 

Although “extrinsic evidence is admissible to ascertain the 

meaning of the trust and the intent of the trustor” (Safai v. Safai

(2008) 164 Cal.App.4th 233, 244, citing Burch, supra, 7 Cal.4th 

at pp. 256, 258), the only extrinsic evidence relating to intent 

of either Trustor in drafting the trust document is an estate 
21

planning book that shows, if anything, that a primary goal 

of the trust document was minimizing estate taxes through 

use of the marital deduction. That does not speak to Trustees’ 

characterization of Trusts B and C as continuous conditional 

spendthrift trusts. Further, extrinsic evidence regarding Mary’s 

intent in executing the contested amendment, if it speaks at 

all to intent of the original trust document, does so in a manner 

that is also inconsistent with Trustees’ arguments. This is 

because, in the contested amendment, Mary attempted to change 

the terms of the trust document so that the Trustees would retain 

discretion to administer all estate assets for an indefinite period 

following Mary’s death. Had she understood the original terms 

of the trust document as already accomplishing this, such 

amendment would not have been necessary. 

In sum, the trial court correctly interpreted the terms of 

the trust documents as requiring distribution of Trusts B and C 

to Beneficiaries “as soon as is practicable” after Mary’s death, 

as the Beneficiaries argued below. The trust document does not 

permit the Trustees to continue to administer Trusts B and C 

as spendthrift trusts for any longer after Mary’s death than is 

necessary to address the special scenarios discussed above (none 

of which Trustees argue applies), calculate the Beneficiaries’ 

various shares, and prepare the trust assets for distribution to 

the Beneficiaries.

12

 

12 Appellants’ petition raises other arguments regarding 

issues not decided in the order on appeal and already finally 

determined by the Supreme Court’s 2013 decision (for example, 

whether beneficiaries should be disinherited under the no contest 

clause, or whether the old version of the Probate Code section 
22

C. Unauthorized Practice of Law 

Trustees represent themselves. Beneficiaries argue that 

such self-representation constitutes an unauthorized practice of 

law.13 We disagree. 

In Ziegler v. Nickel (1998) 64 Cal.App.4th 545 (Ziegler), 

Division Three of this court concluded that “[a] non-attorney 

trustee who represents [a] trust in court is representing and 

affecting the interests of the beneficiary and is thus engaged in 

the unauthorized practice of law. [Citation.]” (Id. at p. 549.)

Ziegler did not involve probate proceedings, but rather a lawsuit 

between a mobilehome park and a trust—appearing, as a trust 

necessarily does, through its trustee. (See Powers v. Ashton

(1975) 45 Cal.App.3d 783, 787 [a trust can only be a party to 

litigation through a trustee].) In concluding the trustee could 

not represent himself in prosecuting the trust’s lawsuit against 

the mobilehome park, Ziegler explained that “ ‘ a trustee’s 

duties in connection with his or her office do not include the 

right to present argument [while representing himself] in courts 

of the state, because in this capacity such trustee would be 

 

governing no contest clauses should apply). We need not and do 

not address these arguments. 

13 In the section of their brief on “unauthorized practice 

of law” (capitalization omitted), Beneficiaries also argue that, 

because Trustees’ petition seeks an interpretation of the trust 

that would benefit Rodney, Jr., and Vicki personally, there exists 

a conflict of interest and Trustees are violating their fiduciary 

duties to the trust. The trial court’s order expressly states, 

however, that it “is not now ruling on whether Trustees breached 

their fiduciary duties at different times.” This issue is thus not 

properly before us on appeal.
23

representing interests of others and would therefore be engaged 

in the unauthorized practice of law. [Citations.]’ [Citations.] 

[¶] Stated otherwise, ‘[a] trustee must always act solely in the 

beneficiaries’ interest. [Citations.]’ [Citations.] The actions of 

the trustee affect the trust estate and therefore affect the interest 

of the beneficiaries. A non-attorney trustee who represents the 

trust in court is representing and affecting the interests of the 

beneficiary and is thus engaged in the unauthorized practice 

of law.” (Ziegler, supra, 64 Cal.App.4th at pp. 548–549, italics 

omitted.)

Ziegler’s rationale is that the trustee was effectively 

speaking for the interests of the trust beneficiaries in the lawsuit 

against the mobilehome park and, as a nonlawyer, improperly 

representing those beneficiaries. (Ziegler, supra, 64 Cal.App.4th 

at pp. 548–549; cf. Aulisio v. Bancroft (2014) 230 Cal.App.4th 

1516, 1519–1520 [a self-represented trustee does not engage in 

the unauthorized practice of law under Ziegler when he is also 

the sole beneficiary, and thus is not representing the interests of 

another].)

This reasoning is closely connected with the specific facts 

in Ziegler. Namely, in non-probate litigation between a trustee

and a third party (as in Ziegler), the trustee is acting as a 

fiduciary for the benefit of the beneficiaries.

14 But the same 

 

14 Other cases involving conservatorship, including one 

on which Beneficiaries rely for their unauthorized practice 

argument, have made a similar distinction between probate 

litigation and litigation outside the probate context between 

a trust or estate and a third party. (Hansen v. Hansen (2003) 

114 Cal.App.4th 618, 619 [“a conservator, executor, or personal 

representative of a decedent’s estate who is unlicensed to practice 
24

cannot be said when, as here, a trustee is seeking instructions 

regarding how to interpret the trust document or execute his 

or her duties thereunder. A trustee seeks such instructions in 

order to effectuate the intent of the trustor, not to represent the 

interests of the beneficiaries. (See Union Bank & Trust Co. v. 

McColgan (1948) 84 Cal.App.2d 208, 213 (Union Bank) [trustee’s 

broader duty is to “to carry out the terms of the trust according 

to the expressed intent of the trustor”].) Indeed, as is the case 

here, the beneficiaries may disagree with the trustee regarding

the trust interpretation the court should adopt, and/or what 

the trustee’s duties are. Under these circumstances, the trustee 

is adverse to the beneficiaries and thus is not representing

the beneficiaries’ interests. The same is true when a trustee 

disagrees with the need for an accounting or surcharge based

on the trustee’s and beneficiaries’ varying understandings of the 

trust document.

The decision of Division Six in Finkbeiner v. Gavid

(2006) 136 Cal.App.4th 1417 (Finkbeiner) is instructive here.

Finkbeiner concluded that, in probate litigation between a 

trustee and beneficiaries, the trustee was not engaging in the 

unauthorized practice of law by representing herself when filing

a petition to modify and terminate the trust. (Id. at p. 1421.) 

The court distinguished Ziegler on the basis that the trustee in 

 

law cannot represent himself when acting on behalf of the estate 

in matters outside the probate proceedings”]; City of Downey v. 

Johnson (1968) 263 Cal.App.2d 775, 778 [nonlawyer conservator 

and executor could not represent estate in the defense of

a condemnation action that “is not an integral part of the 

proceedings within the jurisdiction of the probate court”].)
25

Finkbeiner “[was] not suing a third party. She filed the petition 

as part of her fiduciary responsibility to the court. [The trustee] 

correctly note[d] that trustees have various statutory duties.

She was appointed by the court for the purpose of selling the 

property. She had a duty to account for trust assets, a right to 

seek her fees and a responsibility to notify the court if she felt 

maintaining an ineffective trust was wasteful to the trust estate. 

By filing her petition to modify and terminate the trust, she was 

simply fulfilling her duties as trustee. (See Prob. Code, § 17200 

et seq.) She was not engaged in the unauthorized practice of 

law.” (Finkbeiner, supra, 136 Cal.App.4th at p. 1421.) 

Like the court in Finkbeiner, we conclude that the 

reasoning in Ziegler does not apply to the matter before us. 

As in Finkbeiner, the instant matter is between trustees and 

trust beneficiaries in the context of probate proceedings, not 

between trustees and a third party in non-probate litigation. 

Of course, unlike in Finkbeiner, neither statute nor fiduciary 

duty required Trustees to file the petition for instructions at 

issue or to oppose Beneficiaries’ petition for surcharge and to 

account. Nevertheless, like a trustee filing a petition pursuant 

to a statutory mandate, Trustees here are seeking judicial 

clarification on how to interpret a trust document and not acting

on behalf of the beneficiaries. Rather, Trustees and Beneficiaries 

are litigating a dispute about what precisely the trust requires. 

Therefore, as in Finkbeiner, Trustees may represent themselves

in this dispute without engaging in the unauthorized practice of 

law.

We note, however, that Trustees have wasted both the 

court’s and Beneficiaries’ resources and time trying to relitigate 

issues already decided by the California Supreme Court in this 
26

case. We are cognizant of the possibility that, had Trustees been

represented by an attorney, this may not have occurred. But

this is a potential hazard of any self-representation, and cannot 

alone justify adopting a broader rule that all trustees seeking 

clarification regarding what a trust requires of them must take 

on the expense of hiring counsel.15 Whether Trustees must be 

represented by counsel in future proceedings will depend on the 

nature of the Trustees’ efforts in those proceedings, considered in 

light of our decision and the case law discussed above.

 

15 Moreover, absent the need to protect the interests of 

the beneficiaries as in Ziegler, requiring counsel for a trustee 

filing a petition for instructions in litigation with the trust 

beneficiaries could place an unjustified burden on small trust 

estates. 
27

DISPOSITION

The trial court’s order is affirmed. Respondents are 

awarded their costs on appeal.

CERTIFIED FOR PARTIAL PUBLICATION.

ROTHSCHILD, P. J.

We concur:

BENDIX, J.

WHITE, J.*

 

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.