1

Filed 11/2/22 Frink v. Sims CA3

NOT TO BE PUBLISHED

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

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 This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Shasta)

----

SAMUEL E. FRINK, as Executor, etc.,

Plaintiff and Appellant,

v.

DEBORAH WEAVER SIMS, Individually and as 

Trustee, etc.,

Defendant and Respondent.

C095127

(Super. Ct. No. 29473)

This appeal concerns the validity of a trust created by Barbara Weaver.1 The trust 

provides that, upon Barbara’s death, 37.5 percent of the trust estate is to be distributed to 

her daughter, Barbara Jean Weaver, but not outright. Instead, Barbara Jean’s share is to 

be held in trust, and distributed to her at the rate of $400 per month. 

1

 Because so many of the parties in this case share the same last name, we refer to each 

individual by his or her full name in the first instance, and thereafter by his or her first 

name only. No disrespect is intended.
2

After her mother’s death, Barbara Jean filed a petition to invalidate the trust, 

claiming (1) her mother lacked capacity to execute the trust because she was cognitively 

impaired, and (2) her sister, Deborah Weaver Sims, took advantage of this cognitive 

impairment to unduly influence their mother into disbursing only $400 per month to 

Barbara Jean. The trial court rejected both claims and found Barbara had capacity to 

execute the trust and that it was not procured by Deborah’s undue influence. This appeal 

followed, and we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The following is an abbreviated version of the facts that are relevant to the issues 

raised in this appeal. Additional facts are provided in the discussion sections, post. In 

recounting the facts, we rely heavily on the trial court’s thorough statement of decision, 

which contains numerous factual findings that are not challenged on appeal. The findings 

that are challenged will be discussed in more detail, post. 

A. The Trust

In 2002, Barbara created a trust that provided for the distribution of her trust estate 

after her death. The trust was amended in September 2007 (the first amendment), and 

again in October 2011 (the second amendment). Only the validity of the second 

amendment is at issue here.

As originally executed, the trust named Barbara and her daughter Deborah as 

trustees. Barbara was the sole beneficiary during her lifetime. After her death, Barbara’s 

three living children—Deborah, Barbara Jean, and Richard Weaver—and her grandson 

Daniel Scheidecker would each receive 25 percent of the trust estate. Daniel is Barbara 

Jean’s son, and he was 12 years old at the time the trust was executed. According to 

Deborah, Barbara wanted to leave something to Daniel to make sure he was taken care 

of. Deborah and her brother Richard were financially responsible, had assets, and would 

be able to take care of their children and leave them an inheritance. Barbara Jean, in 

contrast, had issues with drinking, drugs, and gambling, and she was not financially 
3

stable, having previously filed for bankruptcy and lost her home. Barbara felt her other 

grandchildren would be taken care of and Daniel would not.

In 2007, Barbara told Deborah she wanted to make changes to her trust. Because 

Deborah was a cotrustee, Barbara asked her to attend a meeting with attorney Justin Arel 

to discuss those changes. Arel prepared the first amendment to the trust, and it was 

signed by Barbara and Deborah on September 13, 2007. The first amendment changed 

the distribution of trust assets after Barbara’s death, as follows: 25 percent to Richard, 

and 37.5 percent each to Deborah and Barbara Jean. According to Deborah, Barbara 

eliminated the 25 percent distribution to Daniel because she had given Barbara Jean some 

money toward a down payment on a house, and Barbara Jean told her mother she would 

be putting Daniel’s name on the title. Barbara believed there was significant equity in the 

house, and that Daniel now had a potential inheritance upon Barbara’s Jean’s death.

In or around September of 2011, Barbara told Deborah she had made an 

appointment with Arel to discuss more changes to her trust, and she asked Deborah to go 

with her. Barbara did not tell Deborah what specific changes she wanted to make. 

Barbara and Deborah met with Arel on September 20, 2011. Barbara first talked to Arel 

alone, and Deborah was then invited into the meeting.

Deborah testified that Barbara and Arel discussed ways Barbara could provide 

financial help to Barbara Jean after Barbara died. Barbara had recently learned the house 

she helped Barbara Jean purchase had been lost to foreclosure, and she was concerned 

that Barbara Jean’s addictive behaviors—“including gambling, alcohol and/or drugs”—

and poor choices had resulted in financial difficulties again. Barbara was worried 

Barbara Jean would end up homeless and she wanted to provide some support to make 

sure she had a roof over her head, but she was concerned that if she left Barbara Jean a 

lump sum outright, Barbara would lose it all gambling.

Deborah recalled that Barbara also told Arel she wanted to be financially 

independent, she did not want to be a burden to her children, and she understood there 
4

would be a point in her life where she would need to move to an assisted living facility, 

which could be expensive. Barbara and Arel discussed Barbara’s life expectancy (she 

was 84 at the time), which Barbara believed might be close to 100 because many people 

in her family lived that long. Barbara told Arel she was planning on living to 100, and 

she wanted to make sure she was well taken care of. Barbara and Arel discussed how 

much money Barbara would need to live comfortably for the rest of her life, and also 

leave a monthly sum to Barbara Jean after she died. The sum they came up with for 

Barbara Jean was $400 a month.

Deborah also testified her mother told Arel she wanted the $400 a month to go to 

Daniel if there was any money left when Barbara Jean died. Barbara told Arel she had 

recently found out Barbara Jean had lost her house, and Daniel thus would no longer be 

inheriting it. Because Daniel was the only grandchild who would not have an 

inheritance, Barbara told Arel she wanted to provide something for him: “My daughter 

comes first, and I want her taken care of. But should she pass, . . . I want the . . . $400-amonth payment . . . to go to . . . Danny.”

Arel did not have any specific recollection of Barbara, but he had notes of his 

meetings with her, and he testified about his usual practices with clients. Arel’s notes 

state “daughter, Barbara Jean, age 58, neck/feet & back injury, state disability, Costco 

20+ years, 401(k), $ problems, gambling, unable to manage $”; “ongoing issues w[ith] 

daughter Barbara Jean loans &/or gift$, trust for Barbara, security, $400/month, long 

term supplement to Barbara’s retirement & SS [i.e., Social Security].” The notes also 

state Barbara’s trust is to be amended to “Add” a “trust for Barbara Jean Weaver. 

Trustee shall distribute $400/per month from net income & principal.” Arel testified he 

“typically” would not have suggested the $400 per month figure, but he would have 

discussed the feasibility of that figure with Barbara in light of her existing assets and 

what she would need to live comfortably for the rest of her life.
5

Arel prepared the second amendment to the trust, and Barbara and Deborah signed 

it on October 20, 2011. It provides the trust estate is to be distributed as follows: 

25 percent to Richard outright; 37.5 percent to Deborah outright; and 37.5 percent to 

Barbara Jean, but not outright. Instead, Barbara Jean’s share is to be held in a separate 

trust administered for her benefit, and the trustee “shall distribute $400.00 per month 

from net income and principal of the trust estate to the beneficiary. The trustee shall 

accumulate and add to principal any net income not distributed. If the beneficiary dies, 

the trustee shall distribute $400.00 per month from net income and principal of the 

remaining trust estate equally to the issue of BARBARA JEAN WEAVER, if any, in the 

manner provided in California Probate Code section 246, or if the beneficiary leaves no 

issue then among trustors’ heirs.”2 The second amendment also provides, “The trust 

shall terminate on the death of the beneficiary,” and “If the trust property is not 

completely disposed of by the proceeding provisions, the undisposed-of portion shall be 

distributed outright as follows: one half (1/2) to the heirs of the deceased trustor and one 

half (1/2) to the heirs of the surviving trustor.”

3

B. Barbara’s Cognitive Issues

In early 2011, before the second amendment was executed, Deborah began 

noticing her mother was forgetting things. On one occasion, Barbara told Deborah she 

2

 Probate Code section 246 provides: “Where a will, trust, or other instrument calls for 

property to be distributed . . . ‘in the manner provided in Section 246 of the Probate 

Code,’ the property to be distributed shall be divided into as many equal shares as there 

are living children of the designated ancestor, if any, and deceased children who leave 

issue then living. Each living child of the designated ancestor is allocated one share, and 

the share of each deceased child who leaves issue then living is divided in the same 

manner.” (Prob. Code, § 246, subd. (a).)

3

 Arel testified this was an error. It is a common clause used to disperse the residue of a 

husband and wife trust when one spouse dies. In this case, however, there is only one 

trustor (i.e., Barbara).
6

had left a stove burner on. On another occasion, Barbara thought her mother had 

forgotten whether she had taken her medication and thus may have been taking it more 

frequently than she should have.

Deborah generally accompanied her mother to doctor’s appointments. At a 

regularly scheduled appointment in March 2011, Deborah told Barbara’s physician, Dr. 

Gurpeet Sandhoo, that her mother was having issues with memory. Dr. Sandhoo 

performed a mini-mental state examination (MMSE), and Barbara scored 24 out of 30. 

Dr. Sandhoo testified this test showed Barbara had a “little deficit” in “[s]hort-term 

memory,” “[b]ut cognitively, she did okay.” Dr. Sandhoo recommended that Barbara be 

evaluated at the Memory and Aging Center at University of California San Francisco 

(UCSF).

Barbara was evaluated at UCSF on August 18, 2011, by Dr. Zachary Miller, who 

prepared a detailed report of his evaluation. Dr. Miller’s report noted Barbara was 

experiencing some cognitive decline, and his impression was that Barbara’s “pattern of 

deficits is consistent with a diagnosis of mild dementia, most likely related to the early 

stages of Alzheimer’s disease.”

On Dr. Miller’s recommendation, an MRI of Barbara’s brain was performed on

September 16, 2011, and it showed some atrophy. Dr. Sandhoo testified that atrophy “is 

a sign of aging. Everybody has it as we get older.” She testified it was not uncommon 

for individuals over 80 to have short-term memory deficits. She also testified the type of 

dementia Barbara had was late onset and had a very slow progression, and you would not 

notice any dementia or memory loss if you were talking to her. Finally, she testified 

Barbara remained capable of making rational decisions in 2011.

In late 2011, Barbara moved in with Deborah, and lived with her until June of 

2013, when she moved to a facility called The Vistas. She initially lived in the “assisted 

living” or “regular” section of the facility, where she was allowed to come and go as she 
7

pleased. About six months before she died, she moved to the “memory care” section of 

the facility. She died on February 27, 2017, at the age of 90.

C. Trial Court Proceedings

Barbara Jean first learned about the second amendment to the trust after her 

mother died, and she became convinced Deborah had taken advantage of their mother’s 

declining cognitive abilities and convinced her to amend her trust. Barbara Jean filed a

petition seeking to invalidate the second amendment due to lack of capacity and undue 

influence. Deborah was named as respondent, both individually and in her capacity as 

trustee. The petition also asserted claims against Deborah for breach of trust, unjust 

enrichment, conversion, breach of fiduciary duty, and elder abuse.

The petition was filed on January 12, 2018. Barbara Jean died on April 15, 2018, 

and Samuel E. Frink, who had been appointed the executor of Barbara Jean’s estate, was 

substituted in as petitioner (we refer to him as Petitioner).

A three-day bench trial on the equitable issues raised by the petition was held in 

January 2021. In his trial brief, Petitioner stated, “based upon the discovery in this 

matter, [Petitioner] does not believe the evidence supports the allegation that [Barbara] 

lacked capacity at the time of the execution of the Second Amendment to Trust and, 

accordingly, will not present any evidence or argument at trial on such equitable issue.” 

At the outset of the trial, Petitioner confirmed the only issue before the court was whether 

Barbara was subject to undue influence.

The trial court issued a tentative statement of decision on April 1, 2021, denying 

the petition to invalidate the second amendment. One week later, Petitioner personally 

mailed two letters and two additional documents to the trial court. On April 20, 2021, the 

trial court issued an order noting it had received the documents but would not consider 

them because (1) Petitioner was represented by counsel and had to communicate through 

counsel, (2) the documents were not submitted in a format suitable for filing, and (3) the 

documents contained information and evidence that was not presented at trial. On May 4, 
8

2021, Petitioner’s counsel filed “supplemental objections” to the tentative statement of 

decision that attached the documents, presumably to ensure they were filed.4 In the final 

statement of decision, the trial judge noted these documents “contain[] a significant 

amount of information . . . which was not presented as evidence at the time of trial. As 

such, the Court . . . cannot consider this extraneous information.”

The trial court’s final statement of decision is thorough and well-reasoned. It 

concluded that Petitioner failed to establish undue influence. It also noted that although 

Petitioner had stated he was not proceeding on a lack of capacity theory, he nonetheless 

re-asserted that theory in his closing brief. The trial court found Petitioner had waived 

the issue, but nonetheless addressed it “out of an abundance of caution,” and found 

Barbara had capacity. The trial court thus denied the petition to invalidate the second 

amendment to the trust.

The parties thereafter stipulated for entry of judgment in favor of Deborah and 

against Petitioner on all causes of action, prayers and relief sought in the petition because 

the trial court’s findings on capacity and undue influence “would preclude the 

establishment of findings necessary to support any cause of action based on legal issues.” 

Judgment was entered on August 31, 2021, and this appeal followed.

DISCUSSION

Before turning to the merits of this appeal, we note Petitioner is currently 

proceeding in propria persona. A party proceeding in propria persona, however, is 

entitled “to no greater privilege or advantage than that given to one represented by 

counsel.” (Deauville v. Hall (1961) 188 Cal.App.2d 535, 547.) “[I]in electing to 

represent himself ‘he assumes for all purposes connected with his case, and must be 

prepared to be treated as having, the qualifications and responsibilities concomitant with 

4

 The supplemental objection contained no actual objections; the only thing it did was 

attach the four documents Petitioner had previously mailed to the court.
9

the role he has undertaken; he is not entitled either to privileges and indulgences not 

accorded attorneys or to privileges and indulgences not accorded defendants who are 

represented by counsel.’ ” (Ibid.) In order to ensure we consider Petitioner’s appeal on 

the merits, we will liberally construe his opening brief.

5

 (See People v. Mitchell (1962) 

209 Cal.App.2d 312, 315.) However, we cannot excuse a failure of proof at trial or a 

failure of argument on appeal. 

I

Standard of Review

Whether undue influence has been exerted is a question of fact, and we review the 

trial court’s findings thereon under the substantial evidence standard. (In re Marriage of 

Dawley (1976) 17 Cal.3d 342, 354-355; Estate of Gelonese (1974) 36 Cal.App.3d 854, 

863.) The trial court’s findings regarding capacity are also reviewed under the substantial 

evidence standard. (Estate of Clegg (1978) 87 Cal.App.3d 594, 600-601; Estate of Teed

(1952) 112 Cal.App.2d 638, 643-644.) The substantial evidence standard is deferential to 

the trial court’s findings and judgment. “When a trial court’s factual determination is 

attacked on the ground that there is no substantial evidence to sustain it, the power of an 

appellate court begins and ends with the determination as to whether, on the entire 

record, there is substantial evidence, contradicted or uncontradicted, which will support 

the determination, and when two or more inferences can reasonably be deduced from the 

facts, a reviewing court is without power to substitute its deductions for those of the trial 

court. If such substantial evidence be found, it is of no consequence that the trial court 

believing other evidence, or drawing other reasonable inferences, might have reached a 

contrary conclusion.” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.) 

5

 He did not file a reply brief.
10

In determining whether the trial court’s findings are supported by substantial 

evidence, we “look to the entire record of the appeal” and we do not limit our review 

“ ‘to isolated bits of evidence selected by [Petitioner].’ ” (Bowers v. Bernards, supra, 

150 Cal.App.3d at p. 873, italics omitted.) “We view factual matters most favorably to 

[Deborah] and in support of the judgment,” and “we resolve all conflicts in the evidence

in favor of [Deborah].” (Estate of Auen (1994) 30 Cal.App.4th 300, 311.) “The 

testimony of a single witness may constitute substantial evidence as long as it is not 

physically impossible or inherently improbable,” (DeNike v. Mathew Enterprise, Inc.

(2022) 76 Cal.App.5th 371, 381), and this is true even if the witness is a party to the 

action, (In re Marriage of Mix (1975) 14 Cal.3d 604, 614). We do not reweigh the 

credibility of witnesses. “The trial court . . . was able to assess credibility and resolve 

any conflicts in the evidence. Its findings . . . are entitled to great weight.” (Shamblin v. 

Brattain (1988) 44 Cal.3d 474, 479.) 

We note preliminarily that Petitioner frequently supports facts by citing the four 

documents he submitted to the trial court after the trial concluded and that thus were not 

admitted into evidence. As noted above, the trial court did not consider these documents. 

Petitioner agues this was error because the documents were submitted before the final 

statement of decision was issued. The trial court did not err in refusing to consider these 

documents.

In a bench trial, the trial court acts as the finder of fact, and it is axiomatic that the 

finder of fact must decide what the facts are based solely on the evidence introduced at 

trial. It would have been reversible error for the trial court to consider evidence that was 

not offered at trial in reaching its decision in this case.6 And just as the trial court could 

6

 A trial court may consider evidence that was not offered at trial if it grants a motion for 

a new trial pursuant to Code of Civil Procedure section 657. One of the grounds for 

granting such a motion is “[n]ewly discovered evidence, material for the party making the 
11

not consider evidence that was not offered at trial, we cannot consider such evidence on 

appeal. “It is axiomatic that . . . we may not review exhibits . . . not admitted at trial.” 

(Frank v. County of Los Angeles (2007) 149 Cal.App.4th 805, 815.) “Facts, events, 

documents or other matters urged by a party which are not admitted into evidence cannot 

be included in the record on appeal. They are outside the scope of review.” (USLIFE 

Savings & Loan Assn. v. National Surety Corp. (1981) 115 Cal.App.3d 336, 343.) Thus, 

like the trial court, we cannot consider these documents.

II

Analysis

We begin by noting that, “[a]s a general proposition, California law allows a 

testator to dispose of property as he or she sees fit without regard to whether the 

dispositions specified are appropriate or fair.” (Estate of Sarabia (1990) 221 Cal.App.3d 

599, 604.) The right to dispose of one’s property as one sees fit is “fundamental” and 

“ ‘is most solemnly assured by law, and . . . does not depend upon its judicious use.’ ” 

(Estate of Fritschi (1963) 60 Cal.2d 367, 373.) Thus, so long as she had capacity and 

was not unduly influenced, Barbara could dispose of her trust estate however she wanted, 

and regardless of whether the result appears fair, appropriate, or judicious. 

We also note at the outset that Petitioner concedes “Barbara Jean had a gambling 

problem,” and she “knew that if she were to receive a large sum of money she would 

likely lose it to her gambling habits.” He also concedes a monthly disbursement “was 

perfectly justified,” and “[t]here was never a dispute over a monthly payment to Barbara 

application, which he could not, with reasonable diligence, have discovered and produced 

at the trial.” (Code Civ. Proc., § 657.) Petitioner, however, did not file a motion for a 

new trial based on newly discovered evidence. Moreover, none of the information he 

provided to the trial court was newly discovered. Instead, it is all evidence he states he 

gave to his attorney prior to trial, but that his attorney failed to use. 
12

Jean.” Finally, he states the only dispute in this case concerns the amount of the monthly 

disbursement.

A. Lack of Capacity

Capacity to make a will or a trust is presumed to exist, and it was Petitioner’s 

burden to overcome that presumption. (Prob. Code, § 810, subd. (a) [“there shall exist a 

rebuttable presumption affecting the burden of proof that all persons have the capacity to

make decisions and to be responsible for their acts or decisions”]; Estate of Fritschi, 

supra, 60 Cal.2d at p. 372 [“The testator is presumed sane and competent and the burden 

rests on the contestant to overcome this presumption”]; Estate of Agnew (1944) 

65 Cal.App.2d 553, 559-560 [“Testamentary capacity is always presumed to exist until 

the contrary is established”].) 

Capacity to make a will can be—but is not always—the same as capacity to make 

a trust. Probate Code section 6100.5 provides a person has capacity to make a will if they 

understand (1) the nature of the testamentary act, (2) the nature and situation of their

property, and (3) who their relatives are. (Prob. Code, § 6100.5, subd. (a).) Capacity to 

make a will has been described as “exceptionally low.” (In re Marriage of Greenway

(2013) 217 Cal.App.4th 628, 641.) “ ‘It is well established that “old age or forgetfulness, 

eccentricities or mental feebleness or confusion at various times of a party making a will 

are not enough in themselves to warrant a holding that the testator lacked testamentary 

capacity.” ’ ” (Andersen v. Hunt (2011) 196 Cal.App.4th 722, 727.) “ ‘Care must be 

taken to differentiate between mere unreasonable opinions and [lack of testamentary 

capacity]. Testamentary capacity does not depend upon the testatrix’ ability to reason 

logically or upon her freedom from prejudice. A belief may be illogical or preposterous, 

but it is not, therefore, evidence of [lack of testamentary capacity].’ ” (Estate of 

Lingenfelter (1952) 38 Cal.2d 571, 582.) 

In contrast to testamentary capacity, what might be called general capacity is 

governed by Probate Code sections 810 through 812, which deal with capacity to make 
13

contracts, conveyances, and medical decisions, to marry, and to execute trusts.7 “Probate 

Code sections 810 through 812 do not impose a single standard of contractual capacity,” 

and instead provide “that capacity be evaluated in light of the complexity of the decision 

or act in question.” (Lintz v. Lintz (2014) 222 Cal.App.4th 1346, 1352.) In Andersen v. 

Hunt, the court held that capacity to execute a trust is governed by Probate Code section 

6100.5 rather than by Probate Code sections 810 through 812 when the trust “closely 

resembles” or is “analogous to” a will or codicil. (Andersen v. Hunt, supra,

196 Cal.App.4th at p. 731; see also Gomez v. Smith (2020) 54 Cal.App.5th 1016, 1037-

1038.) 

The trial court found the second amendment to the trust was analogous to a will or 

codicil and the capacity standard set forth in Probate Code section 6100.5 thus applied, 

and Petitioner does not challenge this finding on appeal. The trial court went on to 

conclude Barbara had capacity to execute the second amendment because she (1)

understood the nature of the testamentary act, (2) understood the nature and situation of 

her property and assets, and (3) knew who her relatives were, and, indeed, had provided 

for her living children and her grandchildren in her trust.

Although Petitioner does not directly attack the three underlying findings, he does 

argue the trial court’s conclusion that Barbara had capacity is not supported by the 

evidence. In particular, he argues (1) only two witnesses—Dr. Miller and Dr. David 

7

 Probate Code section 810 establishes a rebuttable presumption that all persons have 

capacity to make decisions and be responsible for their actions. Probate Code section 

811 provides a determination that a person lacks capacity must be supported by evidence 

of a deficit in certain mental functions that significantly impairs the person’s ability to 

understand the consequences of the decision in question, and evidence of a correlation 

between the deficit and the decision. And Probate Code section 812 provides a person 

lacks capacity to make a decision unless they have the ability to communicate the 

decision and to understand and appreciate (1) the rights, duties, and responsibilities of the 

decision, (2) the probable consequences of the decision, and (3) the significant risks, 

benefits, and alternatives involved in the decision. 
14

McGee-Williams—were qualified to opine about Barbara’s capacity, and (2) both 

witnesses opined Barbara lacked capacity to execute the second amendment. We 

disagree with Petitioner on both counts and determine the trial court’s findings and 

conclusion are amply supported by the evidence. 

At trial, Dr. Sandhoo and attorney Arel both testified Barbara had capacity to 

execute the second amendment. Dr. Sandhoo testified she had been Barbara’s personal 

physician for several years. She was aware of and evaluated Barbara’s memory loss and 

cognitive issues. Although Dr. Sandhoo acknowledged she was not a neurologist, in her 

judgment, Barbara had the capacity to make rational decisions in 2011. Arel testified he 

was Barbara’s lawyer, and he prepared the second amendment. He has been an estate 

lawyer for 25 years and he specializes in wills, trusts, and probate matters. He testified a

majority of his clients are “senior citizens,” and their “[c]apacity plays a role in every 

document we prepare.” In order to assess capacity, he engages with each client and asks 

questions to determine whether the client understands the particular decision being made. 

He goes through the client’s assets, and their general awareness of their family and 

affairs. He testified there are times when it is evident a client does not have capacity, and 

in those cases, “we’re just no longer able to change any documentation.” If he has any 

question about a client’s capacity, he recommends a medical evaluation or a mental 

assessment. He testified that, based on the details of his notes, he had “quite an 

engagement with [Barbara] regarding [the second] amendment” and its consequences, 

and he “was confident that she was competent to execute the documents at that time.” 

And again: “Based on my notes, . . . my opinion was she had capacity at that time in 

2011.” 

Even lay witnesses may offer their opinions of a person’s capacity, although such 

opinions “are no stronger than the reasons given for them.” (Estate of Dupont (1943) 

60 Cal.App.2d 276, 285; see also Estate of Dobrzensky (1951) 105 Cal.App.2d 134, 139 

[while not determinative, opinion of physician or intimate acquaintance is relevant to 
15

issue of capacity]; Estate of Buthmann (1942) 55 Cal.App.2d 585, 591 [“it is well settled 

that while non-expert as well as expert witnesses may give their opinions on the issue of 

competency, it is not the mere opinions which are of importance but the reasons given in 

support of such opinions”]; Evid. Code, § 870 [intimate acquaintance may offer opinion 

on mental capacity].) Petitioner fails to convince us that Dr. Sandhoo and Arel were not 

qualified to offer their opinions about Barbara’s capacity to execute the second 

amendment. 

Petitioner is also incorrect when he argues Dr. Miller opined Barbara lacked 

capacity to execute the second amendment. Dr. Miller offered no opinion on Barbara’s 

capacity to execute the second amendment, either in his report or during his testimony at 

trial. He testified there are physicians and other professionals who perform capacity 

evaluations or examinations to determine whether someone has the capacity to make 

certain decisions, but he did not perform a capacity evaluation on Barbara. Dr. Miller 

also testified Barbara would have known who her children were, would probably have 

known what her assets were (although she might not know her bank account number), 

and he could not say one way or the other whether she would be able to understand the 

effect of signing legal documents.

Dr. McGee-Williams is a clinical neuropsychologist retained by Petitioner to offer 

expert testimony on brain function and dementia. He did testify Barbara was not 

competent to understand the second amendment, but he did not explain why other than to 

state “understanding what’s going on in a trust is fairly complex,” that even he would 

have a hard time understanding Barbara’s trust, and “[t]hat’s why we have people like 

you guys [i.e., lawyer] to tell us . . . what it means.” That the second amendment may 

have been complex or difficult for a lay person to understand does not prove Barbara 

lacked capacity to execute it. “If precise knowledge of the laws of succession were 

necessary for testamentary capacity, only judges and lawyers could be testators, and they, 

not always.” (Estate of Goulart (1963) 222 Cal.App.2d 808, 816.) Moreover, although 
16

some aspects of the second amendment may have been complex,8there is no suggestion 

that the second amendment did not accurately reflect Barbara’s relatively uncomplex 

decision to place Barbara Jean’s share of the estate in a trust to be paid out at a rate of 

$400 per month, or that she lacked capacity to make that decision. 

Dr. McGee-Williams’s opinion was also undercut by the fact that he did not know 

Barbara Jean had a gambling problem. When informed of Barbara Jean’s gambling 

problem, Dr. McGee-Williams acknowledged, “It may make perfect sense to limit her 

money. Whether or not Barbara Weaver understood the . . . actual structure of what she 

was doing . . . I don’t know.” (Italics added.) Dr. McGee-Williams’s testimony fails to 

rebut the presumption that Barbara had capacity to execute the second amendment to the 

trust. 

Finally, and importantly, it was for the trial court to determine how much weight 

to give Dr. McGee-Williams’s testimony, and it appears the trial court did not give it 

much weight. The trial court noted, for example, that Dr. McGee-Williams never 

examined Barbara, and only reviewed her records, and that this was unusual because “for 

about 99% of his evaluations he actually sees the patient.” It also noted Dr. McGeeWilliams believed Barbara’s cognitive impairment was more severe than either of two

doctors who had actually examined her (i.e., Dr. Sandhoo and Dr. Miller). Finally, it

noted Dr. McGee-Williams’s opinions were based, in part, “on [his] being advised that 

Barbara went into a memory unit in 2013. However, this assumption is incorrect. The 

evidence was that Barbara went into assisted living in 2013, but did not go into the 

memory care wing of the facility until late 2016, approximately 5 years after her 

assessment by Dr. Miller and evaluation by Dr. Sandhoo.” “Where an expert bases his 

conclusion upon assumptions which are not supported by the record, . . . then his 

8

 For example, Arel testified Barbara Jean’s trust could create complex tax reporting 

issues.
17

conclusion has no evidentiary value.” (Pacific Gas & Electric Co. v. Zuckerman (1987) 

189 Cal.App.3d 1113, 1135.) We will not second guess the trial court’s determination 

about how much weight to give Dr. McGee-Williams’s testimony. (See Rufo v. Simpson

(2001) 86 Cal.App.4th 573, 614 [“In reviewing a claim of insufficiency of evidence, the 

appellate court must . . . defer to the trier of fact’s determination of the weight and 

credibility of the evidence”].) 

Petitioner would have us ignore the evidence that supports the trial court’s finding 

that Barbara had capacity to execute the second amendment, and to consider only the 

evidence that would support a contrary finding. This, however, is “contrary to 

established precepts of appellate review.” (Hjelm v. Prometheus Real Estate Group, Inc. 

(2016) 3 Cal.App.5th 1155, 1166.) Again, if substantial evidence supports the trial 

court’s finding, the fact that other evidence would support a contrary finding is “of no 

consequence.” (Bowers v. Bernards, supra, 150 Cal.App.3d. at p. 874, italics omitted.) 

“Our power ‘begins and ends with a determination as to whether there is any substantial 

evidence, contradicted or uncontradicted, which will support the conclusion’ reached by 

the trier of fact.” (Estate of Auen, supra, 30 Cal.App.4th at p. 311.) Substantial evidence 

supports the trial court’s conclusion that Barbara had capacity to execute the second 

amendment to the trust.

B. Undue Influence

“California courts have long held that a testamentary document may be set aside if 

procured by undue influence.” (David v. Hermann (2005) 129 Cal.App.4th 672, 684.) 

“Undue influence is pressure brought to bear directly on the testamentary act, sufficient 

to overcome the testator’s free will, amounting in effect to coercion destroying the 

testator’s free agency.” (Rice v. Clark (2002) 28 Cal.4th 89, 96.) It “consists in the 

exercise of acts or conduct by which the mind of the testator is subjugated to the will of 

the person operating on it; some means taken or employed which have the effect of 

overcoming the free agency of the testator and constraining him to make a disposition of 
18

his property contrary to and different from what he would have done had he been 

permitted to follow his own inclination or judgment.” (Estate of Ricks (1911) 160 Cal. 

467, 480.)

The person challenging the testamentary document (here, Petitioner) bears the 

burden of proving undue influence. (Rice v. Clark, supra, 28 Cal.4th at p. 96.) However, 

“a presumption of undue influence, shifting the burden of proof, arises upon the 

challenger’s showing that (1) the person alleged to have exerted undue influence had a 

confidential relationship with the testator; (2) the person actively participated in 

procuring the instrument’s preparation or execution; and (3) the person would benefit 

unduly by the testamentary instrument.” (Id. at p. 97.) “All three of these factors must 

be present in order to have the benefit of the presumption.” (Estate of Gelonese, supra,

36 Cal.App.3d at p. 862.) “If this presumption is activated, it shifts to the proponent of 

the will [or trust] the burden of producing proof by a preponderance of evidence that the 

will [or trust] was not procured by undue influence. It is for the trier of fact to determine 

whether the presumption will apply.” (Estate of Sarabia, supra, 221 Cal.App.3d at 

p. 605.) 

i. The Presumption of Undue Influence

Here, the trial court found Petitioner failed to raise a presumption of undue 

influence because although Deborah had a confidential relationship with Barbara (factor 

No. 1), there was no evidence Deborah was actively involved in procuring the second 

amendment (factor No. 2), and no evidence she unduly benefited from it (factor No. 3). 

It is unclear whether Petitioner challenges the trial court’s finding that he failed to raise a 

presumption of undue influence, because he never mentions the presumption in his brief. 

He does argue the trial court’s finding that the second amendment does not result in a 

financial benefit to Deborah is contrary to the evidence, so we will assume he challenges 

the trial court’s finding to the contrary, and we will discuss that finding below. We note, 

however, that a presumption of undue influence does not arise unless the challenger 
19

proves all three factors exist, and substantial evidence supports the trial court’s finding 

that Deborah was not actively involved in procuring the second amendment. 

Deborah testified she had nothing to do with the second amendment, and, as noted 

above, the testimony of a single witness may constitute substantial evidence of a fact. 

(DeNike v. Mathew Enterprise, Inc., supra, 76 Cal.App.5th at p. 381.) Petitioner suggests 

Deborah lied when she testified that she had nothing to do with the second amendment.

The trial court, however, believed Deborah’s testimony, and it is not for us to second 

guess that decision. “Except in these rare instances of demonstrable falsity, doubts about 

the credibility of [an] in-court witness should be left to the [trier of fact’s] resolution.” 

(People v. Cudjo (1993) 6 Cal.4th 585, 609.) “ ‘To warrant the rejection of the 

statements given by a witness who has been believed by a trial court, there must exist 

either a physical impossibility that they are true, or their falsity must be apparent without 

resorting to inferences or deductions. [Citations.] Conflicts and even testimony which is 

subject to justifiable suspicion do not justify the reversal of a judgment, for it is the 

exclusive province of the trial judge or jury to determine the credibility of a witness and 

the truth or falsity of facts upon which a determination depends. [Citations.]’ ” (Evje v. 

City Title Ins. Co. (1953) 120 Cal.App.2d 488, 492.) Deborah’s testimony that she had 

nothing to do with the terms of the second amendment is neither physically impossible 

nor apparently false, and, perhaps more importantly, the trial court credited her 

testimony. There are thus no grounds for us to reject her testimony. 

Petitioner also accuses Deborah of another lie that is arguably related to the trial 

court’s finding that Deborah was not involved in creating the second amendment. 

According to Petitioner, Deborah testified it was Barbara’s attorney Arel who came up 

with the amount of Barbara Jean’s monthly payment. Petitioner focuses on the following 

isolated portion of Deborah’s testimony:

“Q. Let me ask you this. [¶] Who broached the subject of giving a $400-amonth payment to your sister from her share of the trust -- inheritance?
20

“A. Would you like that answer now or what led up to that?

“Q. Well, answer the question, and then we’ll see.

“A. Okay. Mr. Arel.” (Italics added.) 

Petitioner contends the italicized testimony is a “direct lie” told by Deborah in 

order to “ ‘blame’ ” Arel “for the tiny $400/month distribution and hide the . . . fact that 

[Deborah] influenced her mother to name this amount.” As evidence of this lie, 

Petitioner points to Arel’s testimony that he “typically” would not have suggested a 

monthly amount. The fact that Arel “typically” would not have suggested a monthly 

amount, however, does not demonstrate Deborah lied. 

Moreover, Petitioner has selectively focused solely on evidence that supports his 

arguments. He thus “ignores a fundamental rule of appellate practice obligating him to 

completely and fairly summarize the evidence supporting the court’s findings and 

judgment.” (Arechiga v. Dolores Press, Inc. (2011) 192 Cal.App.4th 567, 571.) In doing 

so, Petitioner conveniently ignores Deborah’s complete testimony on this issue. 

According to Deborah, her mom initially told Arel “I’ve decided that I want to leave 

everything to Debbie and have Debbie have her share and Barbara Jean’s share. . . . And 

anytime that Barbara Jean needs something, she’ll have to go to Debbie and ask her for 

it.” Deborah told her mom she was not willing “to play banker” to Barbara Jean or be in 

charge of giving her money because that would destroy their relationship. Arel “agreed 

that that was not a good plan.” Arel then suggested Barbara could “make a trust within 

the trust that would give [Barbara Jean] . . . a monthly amount,” and “that was the route 

[Barbara] elected to go with.” As for how the monthly amount was set, Deborah testified 

her mom and Arel spent quite a bit of time discussing her mom’s finances and current 

assets, what nursing homes or assisted living facilities cost, and how much her mom 

would need to live comfortably for the rest of her life. Barbara also told Arel she thought 

Barbara Jean’s rent was currently $600 a month, that Barbara Jean had a retirement 

account and would eventually receive Social Security, that Barbara Jean “should be able 
21

. . . to live off . . . what she has,” and that her mom wanted to leave Barbara Jean “enough 

to help partially . . . cover her rent.” According to Deborah, based on this discussion, 

“they came to a number of $400 a month,” (italics added), and “they arrived at that 

figure,” (italics added). Viewed in context, Deborah thus did not testify Arel came up 

with the $400 a month figure. Instead, she testified Arel came up with the idea of 

creating a trust for Barbara Jean that would provide her with a monthly payment, and her 

mom and Arel both came up with the amount of that payment. 

Petitioner thus fails to demonstrate the trial court erred in finding no presumption 

of undue influence had been raised.

ii. Evidence of Undue Influence

Having failed to raise a presumption of undue influence, Petitioner had the burden 

of proving it. This burden has been described as “heavy,” (Doolittle v. Exchange Bank

(2015) 241 Cal.App.4th 529, 545), and as requiring “a strong showing,” (Estate of 

Ventura (1963) 217 Cal.App.2d 50, 58). “ ‘[U]ndue influence can be established by 

circumstantial evidence so long as the evidence raises more than a mere suspicion that 

undue influence was used; the circumstances proven must be inconsistent with the claim 

that the will was the spontaneous act of the testator.’ [Citation.] Clear and convincing 

proof is required. [Citation.] Undue influence will not be inferred from ‘slight 

evidence.’ [Citations.]” (Estate of Truckenmiller (1979) 97 Cal.App.3d 326, 334.) 

Petitioner’s primary argument is that the second amendment to the trust financially 

benefits Deborah. The fact that the person accused of undue influence will benefit or 

profit from the testamentary document can be evidence of undue influence (although it is 

not dispositive). (Estate of Muller (1936) 14 Cal.App.2d 129, 132.) Conversely, the fact 

that the person charged with undue influence will not actually benefit tends to refute the 

charge. (Estate of Ventura, supra, 217 Cal.App.2d at pp. 58-59.) The trial court found 

Deborah would not benefit from the second amendment, and this finding is supported by 

the evidence.
22

The terms of the second amendment do not establish that Deborah will personally 

benefit from it. (See Estate of Bucher (1941) 48 Cal.App.2d 465, 473 [benefit may be 

shown by terms of testamentary document].) The first amendment and the second 

amendment both entitle Deborah to 37.5 percent of the trust estate, and the second 

amendment did not increase Deborah’s share of the estate at Barbara Jean’s expense. 

What is Petitioner’s evidence of financial benefit to Deborah? It is difficult to tell. 

He states Deborah “is fighting to avoid a forensic audit” of the trust estate’s assets and he 

implies that Deborah has undervalued those assets. He cites no evidence that this is true, 

and even if such evidence existed, he fails to explain how it shows Deborah financially 

benefits from the second amendment. If the trust assets are worth more, that simply 

means Deborah’s, Barbara Jean’s, and Richard’s shares of the estate are worth more. 

Although far from clear, Petitioner may contend that Deborah financially benefits

from the second amendment because she is the trustee of Barbara Jean’s trust and 

oversees its administration, and thus has the opportunity to pocket any amounts she does 

not distribute to Barbara Jean (or Daniel) or to simply take money from the trust for her 

own personal use. Assuming Petitioner does so contend, there is no evidence that 

Deborah has pocketed any portion of Barbara Jean’s share or taken money from the trust.

Finally, Petitioner may contend Deborah will ultimately benefit from the second 

amendment because once Barbara Jean’s trust terminates, any money remaining is 

distributed to Barbara’s heirs, which would include Deborah. The trial court found 

Deborah had no reasonable expectation that she would ever receive a portion of Barbara 

Jean’s trust, and this finding is supported by the evidence. The second amendment states

Barbara Jean’s trust terminates “on the death of the beneficiary,” which could be 

interpreted to mean it terminates when Barbara Jean dies, but it appears nobody

interpreted it this way because it also states, “If the beneficiary dies, the trustee shall 

distribute $400.00 per month . . . to the issue of BARBARA JEAN WEAVER.” The trial 

court found this provision was ambiguous. Interpreted literally, it would mean Barbara 
23

Jean’s “issue” would continue to receive the $400.00 per month until the trust assets were 

completely distributed, and the term “issue” could include Daniel, his children, his 

children’s children, and so on.9 The trial court found that if the second amendment was 

interpreted this way, “Deborah would have no reasonable expectation that she would 

outlive her nephew and receive any portion of Barbara Jean’s share.” Deborah testified, 

however, and Arel confirmed, that Barbara’s intent was that the $400 a month would be 

distributed to Daniel after Barbara Jean died, and not to Daniel’s issue in perpetuity. The 

trial court thus found that, whichever way the second amendment was interpreted, “There 

is no reasonable interpretation of the instrument whereby Deborah would be entitled to 

any portion of Barbara Jean’s share.” The trial court thus concluded Deborah did not 

financially benefit from the second amendment, and this conclusion is supported by the 

evidence. It also “tends to refute the charge [of undue influence].” (Estate of Ventura,

supra, 217 Cal.App.2d at pp. 58-59.) 

Having failed to prove the second amendment benefits Deborah, Petitioner offers 

little evidence of undue influence. He argues the fact that Deborah did not give attorney 

Arel a copy of Dr. Miller’s report is evidence of undue influence because it suggests she 

was trying to hide her mother’s cognitive issues from him. We disagree. Although 

Deborah did not provide Arel with a copy of Dr. Miller’s report, she testified she called 

Arel prior to the meeting to report her mother’s cognitive issues, and Arel assured her he 

dealt with such issues all the time and would assess her mother’s capacity when they met. 

9

 The trial judge appears to have found that a monthly distribution to Barbara Jean’s 

“issue” could be barred by the rule against perpetuities, which provides, “No interest in 

real or personal property shall be good unless it must vest, if at all, not later than 21 years 

after some life in being at the creation of the interest.” (Civ. Code, § 715.2.) The trial 

court also appears to have found, however, that Barbara’s intent was to continue the 

monthly disbursement to Daniel, but not to his issue in perpetuity. So interpreted, the 

second amendment would not violate the rule against perpetuities, because Daniel is a 

“life in being at the creation” of the second amendment. 
24

Deborah’s testimony is corroborated by Arel’s notes of the meeting, which state 

“occasional memory short-term” problems. Contrary to Petitioner’s assertion, Deborah 

did not try to hide her mother’s condition from Arel.

Petitioner also argues Barbara’s cognitive impairments rendered her “vulnerable” 

to undue influence, and he notes Dr. McGee-Williams testified that Barbara “would 

certainly be subject to undue influence.” Being vulnerable or subject to undue influence, 

however, does not mean that undue influence actually occurred. “It is well settled . . . 

that a mere showing of opportunity to exert undue influence is not sufficient to support a 

finding that it was exerted.” (Estate of Dunne (1955) 130 Cal.App.2d 216, 225; see also 

Estate of Fritschi, supra, 60 Cal.2d at pp. 373-374 [“ ‘mere opportunity to influence the 

mind of the testator, even coupled with an interest or a motive to do so, is not 

sufficient’ ”].) 

Finally, Petitioner complains that he gave his attorney “specific evidence” about 

Deborah’s undue influence, but this evidence “was not presented at trial.”

10 Again, 

however, we may not consider any evidence that was not presented at trial.

The trial court found Petitioner failed to carry his burden of establishing undue 

influence, and this finding is amply supported by the evidence.

10

 Petitioner spends much time in his opening brief complaining about his attorney’s 

failure to present this evidence at trial, and he cites (albeit without discussion) a federal 

habeas case (Zumot v. Borders (N.D.Cal. 2020) 483 F.Supp.3d 788) in which the 

petitioner challenged his murder conviction by arguing he received ineffective assistance 

of counsel. Assuming Petitioner contends he received ineffective assistance of counsel, 

we note that effective assistance of counsel is a right guaranteed to criminal defendants 

by the Sixth Amendment to the United States Constitution. (See Strickland v. 

Washington (1984) 466 U.S. 668, 684-686 [6th Amendment guarantees criminal 

defendant right to effective assistance of counsel].) This is not a criminal case, however, 

and constitutional rules that apply to criminal prosecutions do not apply here.
25

C. The Amount of the Monthly Payment

We briefly address two arguments Petitioner makes about the amount of the 

monthly disbursement that do not directly relate to the trial court’s findings on capacity 

or undue influence. First, Petitioner argues the $400 a month figure does not reflect 

Barbara’s intent. This argument is difficult to follow, but appears to go something like 

this.11 As evidenced by the terms of the second amendment, Barbara’s intent was that 

Deborah and Barbara Jean would each receive 37.5 percent of the trust estate. According 

to Petitioner, the trust estate was worth around $700,000 when Barbara died,12 which 

11

 We note that most of Petitioner’s arguments are perfunctorily asserted without citation 

to, or discussion of, relevant legal authorities. “A court need not consider an issue where 

reasoned, substantial argument and citation to supporting authorities are lacking.” 

(Woods v. Horton (2008) 167 Cal.App.4th 658, 677.) “We may properly disregard 

contentions perfunctorily asserted without legal development.” (Cameron v. Sacramento 

County Employees’ Retirement System (2016) 4 Cal.App.5th 1266, 1282.) “It is the 

responsibility of the appellant . . . to support claims of error with meaningful argument 

and citation to authority. [Citations.] . . . [Citations.] In addition, citing cases without 

any discussion of their application to the present case results in forfeiture.” (Allen v. City 

of Sacramento (2015) 234 Cal.App.4th 41, 52.) Although Petitioner does cite some legal 

authorities, he never explains their application to this case. Moreover, all are 

inapplicable. This case involves a challenge to a testamentary document filed in 

California state court, and it is thus governed by California law. Petitioner, however, 

cites almost no California law. Instead, he cites out-of-state and federal cases and Code 

of Federal Regulations sections which are inapplicable. Petitioner does cite two 

California authorities—Penal Code section 118 and Code of Civil Procedure section 

631.8—but they are inapplicable as well. Penal Code section 118 is inapplicable because 

it defines the crime of perjury, and this is not a criminal perjury case. And Code of Civil 

Procedure section 631.8 is inapplicable because it governs motions for judgment 

following the close of a party’s case in a bench trial, and no such motion was filed in this 

case. Given this lack of citation to, and discussion of, relevant legal authorities, we 

would be justified in disregarding most of Petitioner’s brief. Nevertheless, because 

Petitioner is proceeding pro. per., we did not disregard his brief, and we have instead 

tried to liberally construe it in order to ensure he receives a hearing on the merits. (See 

People v. Mitchell, supra, 209 Cal.App.2d at p. 315.)

12

 Deborah testified the trust estate was worth around $650,000 to $700,000 when her 

mom died.
26

means each sister’s share was around $260,000 dollars. Deborah would receive that 

amount outright. Barbara Jean, however, would receive only $400 a month, and at that 

rate it would take over 54 years to disburse her share (and that is assuming the trust assets 

do not appreciate or earn interest). Barbara Jean was 58 when the second amendment 

was executed (and around 64 when her mother died), and it would thus always have been 

impossible for Barbara Jean to receive her full share of the trust estate, which conflicts 

with her mother’s intent that both sisters receive 37.5 percent. Assuming this is indeed 

Petitioner’s argument, we reject it. It is clear from the terms of the second amendment 

itself that Barbara understood and intended that Barbara Jean might not receive her full 

37.5 percent share, because the second amendment provides if Barbara Jean died before 

her share is fully distributed, the $400 a month would continue to be distributed to her 

issue (i.e., Daniel). If Barbara had intended to ensure Barbara Jean received her full 

share of the trust estate, the second amendment would not have included this provision.

Second, Petitioner appears to argue that a reasonable monthly disbursement would 

be $1,200, because that is what Barbara Jean’s $260,000 share of the estate would yield if 

invested wisely. He supports this argument by citing one of the documents he submitted 

after the trial was over, but, as discussed above, we cannot consider this document. 

Moreover, and more importantly, the question in this case is not whether $1,200 would 

be a reasonable monthly payment given the value of Barbara Jean’s share of the estate. 

The question is whether Barbara lacked capacity to specify a $400 monthly payment 

and/or Deborah unduly influenced that amount. Again, under California law, Barbara 

could dispose of her property as she saw fit, without regard to whether the disposition 

was “appropriate or fair.” (Estate of Sarabia, supra, 221 Cal.App.3d at p. 604.)

We also note that both of these arguments about the amount of the monthly 

payment are based on the fact that Barbara’s trust estate was worth around $700,000 

when she died, which meant Barbara Jean’s 37.5 percent share was worth around 

$260,000. As the trial court noted, however, such arguments are based on hindsight, and 
27

ignore the fact that when Barbara executed the second amendment, she did not know 

what her estate would be worth when she died. Assume, for example, that Barbara had 

died with $50,000 in assets. In that case, $12,500 would go to Richard outright; $18,750 

would go to Deborah outright; and $18,750 would go to Barbara Jean in trust. At the rate 

of $400 per month, Barbara Jean’s share would be distributed in less than four years 

(perhaps a bit longer if invested wisely), and most of Petitioner’s arguments about the 

amount would simply disappear. 

One final note about the $400 amount. The trial court found, “Barbara and Mr. 

Arel took into account Barbara living to be close to 100, and depleting most of her trust 

assets, as well as Barbara Jean’s savings, retirement and social security, and came up 

with the sum of $400.00 per month to supplement Barbara Jean’s income after Barbara 

died. Based on these factors, the sum of $400.00 was rational and reasonable.” 

Petitioner challenges this particular finding, and says the evidence “contradicts” it. Why? 

Because Barbara was not actually likely to live to be 100, and Deborah “misled” or even 

lied to the judge by suggesting otherwise. Deborah, however, did not testify or otherwise 

suggest her mother was likely to live to be 100. Instead, she testified her mother told 

Arel she had aunts and uncles who lived to be 100, and she was planning to live that long. 

Moreover, and regardless of whether or not Barbara would actually live to be 100, there 

is nothing unusual or suspicious about assuming a long life when making an estate plan.

CONCLUSION

We end where we began, by emphasizing the standard of review: “The province 

of a reviewing court in a will [or trust] contest is identical to its position in any other civil 

action. All conflicts must be resolved in favor of [Deborah] and all legitimate inferences 

indulged in to uphold the judgment if possible. When two or more inferences can be 

reasonably deduced from the facts, the reviewing court lacks power to substitute its 

deductions for those of the trial judge.” (Estate of Larendon (1963) 216 Cal.App.2d 14, 

19.) “[T]he duty of an appellate court in reviewing a decision in a will [or trust] contest 
28

[is] as follows: ‘All of the evidence most favorable to the respondent [i.e., Deborah] 

must be accepted as true, and that unfavorable discarded as not having sufficient verity to 

be accepted by the trier of fact. If the evidence so viewed is sufficient as a matter of law, 

the judgment must be affirmed.’ ” (Estate of Sauls (1963) 218 Cal.App.2d 827, 830.) 

Here, the evidence so viewed is sufficient as a matter of law.

DISPOSITION

The judgment is affirmed. Deborah shall recover her costs on appeal. (Cal. Rules 

of Court, rule 8.278(a)(1), (2).)

 /s/

EARL, J.

We concur:

 /s/

ROBIE, Acting P. J.

 /s/

KRAUSE, J.