Filed 10/23/2017

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

JOSE FRANCISCO AVILES et al.,

 Petitioners and Respondents,

v.

TRACY J. SWEARINGEN,

 Appellant.

2d Civil No. B281420

(Super. Ct. No. 56-2016-00479394-PRTR-OXN)

(Ventura County)

In this case of first impression, we apply newly 

enacted Probate Code section 21310. If, in theory, this could lead 

to a debatable result, so be it. There is no “play in the joints” in 

probate law, as Chief Justice Rehnquist would say. We “strictly” 

follow probate law as given to us by the Legislature. (Estate of 

Shellenbarger (2008) 169 Cal.App.4th 894, 896.)

Tracy J. Swearingen appeals from an order denying 

her petition to enforce a no contest clause and disinherit Jose 

Francisco Aviles as a trust beneficiary of the Margaret B. 

Chappell Living Trust. The trial court found that the trust Third 

Amendment and Restatement (hereafter Third Amendment),

which contains general language of incorporation of a prior trust 

amendment, did not specifically refer to a no contest clause. It 
also found that the Third Amendment was not a “protected 

instrument” within the meaning of Probate Code section 21310.1

Finally, it ordered appellant’s removal as trustee, pendente lite, 

without prejudice to her reinstatement should she prevail at trial 

on Aviles’ petition to invalidate the Third Amendment. 

We affirm the order denying the petition to disinherit 

respondent. The purported appeal from the order removing 

appellant as trustee pending trial is dismissed because it is not a 

final appealable order. (§§ 1304, subd. (a); 17200, subd. (b)(1); 

Estate of Keuthan (1968) 268 Cal.App.2d 177, 180.)2

Facts and Procedural History

Margaret B. Chappell (Peggy) created the Margaret 

B. Chappell Living Trust in 2010 and amended the trust three 

times before succumbing to cancer on January 12, 2016. The 

original trust instrument was a comprehensive 34-page document 

drafted by counsel. It provided that Peggy’s boyfriend, 

respondent Jose Francisco Aviles, would receive all the trust 

assets on Peggy’s death. The First Amendment provided that 

Aviles would receive Peggy’s real property and directed that the 

remaining trust assets be distributed as follows: 50 percent to 

Peggy’s brother and 50 percent to be divided equally between the 

children of Peggy’s nieces and nephews. The Second Amendment 

provided that Aviles would receive Peggy’s real property and 50 

1

All statutory references are to the Probate Code.

2

At the eleventh hour, the parties declare that they have 

settled the underlying case. They ask for dismissal of the appeal. 

The request is denied. It is untimely. In addition, we elect to 

reach the merits of the first impression issue which has statewide 

importance to the probate bar.

2

 
percent of the remaining trust assets would be distributed to her 

brother and 50 percent to Peggy’s godchildren. 

In 2015, Peggy suffered a relapse of cancer and 

entrusted appellant with her estate planning documents. Peggy 

complained to others that appellant had read the trust 

documents. Appellant confronted Peggy about the disposition of 

trust assets. In the months that followed, Peggy executed the 

Third Amendment without the advice of counsel.3

 The Third 

Amendment changed the trust remainder beneficiary provision to 

make appellant the sole remainder beneficiary and successor 

trustee. It incorporated by reference the unchanged provisions of 

the Second Amendment and provided: “These Articles once 

included, and along with any Articles not amended, shall result 

in the Third Amendment and Restatement of the Trust 

Agreement for the Living Trust of Margaret B. Chappell.” 

After Peggy died, Aviles filed a petition to invalidate 

the Third Amendment on the ground that it was the product of 

undue influence and financial abuse. The petition alleged that 

appellant and her husband owned and operated a marijuana 

dispensary, that they supplied Peggy marijuana without a 

medical approval, that Peggy became addicted to marijuana, and 

was a dependent adult within the meaning of section 21366. It 

also alleged that appellant was Peggy’s “care custodian” (§21362),

and coerced Peggy to disinherit her brother and godchildren and 

name appellant remainder beneficiary of the trust. While Peggy 

3

Where, as here, the settler has substantial assets, he or 

she should not attempt to dispose of them without the guiding 

hand of counsel. As Rankeillor, the lawyer, said, “I often think 

the happiest consequences seem to flow when a gentleman 

consults his lawyer, and takes all the law allows him.” 

(Stevenson, Kidnapped (1913) p. 268.)

3

 
was on her deathbed, appellant and her agents allegedly took 1. a 

valuable collection of vintage wine from Peggy’s home; 2. her 

Mercedes; 3. an expensive collection of purses; 4. Peggy’s jewelry 

box; and 5. control of Peggy’s bank accounts including a safe 

deposit box that held a $100,000 jewelry collection. 

Appellant opposed the petition and filed a counter 

petition to disinherit Aviles alleging that he violated the no 

contest clause in the Second Amendment by challenging the 

Third Amendment. 

Thereafter, respondent filed a motion to enjoin 

appellant from using trust assets to fund her defense of the trust 

contest. (See Doolittle v. Exchange Bank (2015) 241 Cal.App.4th 

529, 546 [trial court may enjoin trustee’s use of trust funds to 

defend a challenge to a trust where there is a likelihood of

prevailing on the contest].) The motion and appellant’s petition 

to disinherit respondent were heard at the same time. Denying 

the petition, the trial court ruled that the Third Amendment was 

not a “protected instrument” as defined by section 21310 because 

the instrument did not contain a no contest clause or expressly 

reference the no contest clause in the Second Amendment. With 

respect to the motion to enjoin appellant’s use of the trust funds 

to defend against the petition to invalidate the Third 

Amendment, the trial court removed appellant as trustee, 

pendente lite, and appointed a professional fiduciary to act as 

trustee. 

No Contest Clause

Because there is no conflict or question of credibility 

in the relevant extrinsic evidence, interpretation of the trust 

instrument is a question of law for our independent review. 

(Burch v. George (1994) 7 Cal.4th 246, 254.) An in terrorem or no 

4
contest clause is a provision in an otherwise valid trust 

instrument that, if enforced, penalizes a beneficiary for filing a 

pleading in any court. (§ 21310, subd. (c).) The term “pleading” 

means a petition, complaint, cross-complaint, objection, answer, 

response, or claim. (§ 21310, subd. (d).) 

No contest clauses are valid in California and are 

favored by the public policies of discouraging litigation and giving 

effect to the settlor’s expressed purposes. (Burch v. George,

supra, 7 Cal.4th at p. 254.) Competing public policies, however, 

also exist. The court must strictly construe a no contest clause 

because it works a forfeiture and may not be extended beyond its 

plainly intended function. (Ibid.) Our courts have narrowly 

construed no contest clauses even where the trust amendment 

expressly confirms and ratifies the provisions of the trust. 

(Perrin v. Lee (2008) 164 Cal.App.4th 1239, 1242; Townsend v. 

Townsend (2009) 171 Cal.App.4th 389, 392.) 

Section 21311, subdivision (a) defines what no contest 

clauses can be enforced and provides that a no contest clause may 

be enforced against “(1) [a] direct contest that is brought without 

probable cause.” A “direct contest” is defined in section 21310, 

subdivision (b) to mean: “[A] contest that alleges the invalidity of 

a protected instrument or one or more of its terms, based on one or 

more of the following grounds: [¶] . . . [¶] (4) Menace, duress, 

fraud, or undue influence.” (Italics added.)

Section 21310, subdivision (e)(2) defines a “protected 

instrument” to mean an instrument “that contain[s] the no 

contest clause” or an instrument that “is in existence on the date 

that the instrument containing the no contest clause is executed 

and is expressly identified in the no contest clause, either 

individually or as part of an identifiable class of instruments, as 

5
being governed by the no contest clause.” Pursuant to this 

statute, the settlor may “either incorporate by reference or 

republish in full a no-contest clause in a . . . trust amendment by 

expressly referring to a no-contest clause contained in an 

instrument previously executed by the [settlor].” (Ross & Cohen, 

Cal. Practice Guide: Probate (The Rutter Group 2016) [¶] 15:85.7, 

p. 15-37.) 

 Appellant concedes the Third Amendment does not 

have a no contest clause. At issue is whether the Third 

Amendment is a “protected instrument” because it incorporates 

by reference the no contest clause in the Second Amendment 

without specifically mentioning it. Appellant claims that Peggy 

intended to include the no contest clause in the Third 

Amendment because the Third Amendment incorporates all of 

the terms of the Second Amendment not amended by the Third 

Amendment. Article 16 of the Second Amendment, which 

contains the no contest clause, states that a “protected 

instrument” shall include “any and all amendments” to the Trust 

Agreement. 

The no contest clause and its application to future 

trust amendments is strictly construed. (§ 21312.) Under former 

law (§ 21305, subd. (a)) and current law (§ 21310, subd. (e)(2)), 

the no contest clause is not enforceable unless it is set forth 

verbatim in the Third Amendment or the Third Amendment 

expressly refers to the no contest clause in the Second 

Amendment. Section 21310, subdivision (e), which became 

operative January 1, 2010, requires that the “protected 

instrument” either contain the no contest clause (subd. (e)(1)), or 

that the instrument be “in existence on the date that the 

instrument containing the no contest is executed and is expressly 

6
identified in the no contest clause . . . .” (Subd. (e)(2), italics 

added.) 

Simply stated, the no contest clause in the Second 

Amendment, does not apply to future trust amendments, such as 

the Third Amendment, unless the amendment specifically refers 

to the no contest clause. 

In 2008, the Legislature enacted Section 21310 based 

on the recommendation of the Law Revision Commission to 

simplify the law, to balance conflicting public policies, and to 

limit the enforcement of no contest clauses to direct contests 

brought without probable cause, to creditor claims, and to 

challenges to the transferor’s (i.e., settlor’s) ownership of property 

at time of transfer. (Donkin v. Donkin (2013) 58 Cal.4th 412, 

426.) The Law Revision Commission warned “that other public 

policy concerns ‘can trump a transferor’s intention to create a no 

contest clause.’ [Citation.]” (Id. at p. 425.) It noted that 

“’[e]xperienced practitioners are well aware that the no contest 

clause is a favorite device of undue influencers and those who use 

duress to become the (unnatural) object of a decedent’s bounty.’” 

(Recommendation on Revision of No Contest Clause Statute (Jan. 

2008) 37 Cal. Law Revision Com. Rep. (2007) p. 388 (Revision 

Rep.).) 

Appellant claims that the no contest clause in the 

Second Amendment trumps section 21310, subdivision (e)(2), but 

that would violate section 21314 which provides that “[t]his part 

applies notwithstanding a contrary provision in the instrument.” 

(See Giammarrusco v. Simon (2009) 171 Cal.App.4th 1586, 1615 

[if instrument contains a no contest clause that is inconsistent 

with the revised law, the clause will be disregarded].) Although 

no contest clauses are favored by the public policies of 

7
discouraging litigation and giving effect to the trustor’s intent, 

they are also disfavored by the policy against forfeitures and may 

not extend beyond what plainly was the settlor’s intent. (Meyer 

v. Meyer (2008) 162 Cal.App.4th 983, 991.) “In determining the 

intent of the [settlor], a no contest clause shall be strictly 

construed.” (§ 21312.) 

We cannot say that Peggy unequivocally expressed 

her intent to apply the no contest clause to petitions contesting 

trust amendments that are the product of fraud or undue 

influence. Application of the clause here would defy common 

sense. “An instrument that is the product of menace, duress, 

fraud, or undue influence is not an expression of the transferor’s 

free will and should not be enforced.” (Revision Rep., supra, 37

Cal. Law Revision Com. Rep. at p. 370.) We are guided by the 

fundamental truism that - put bluntly - the law is not an ass. 

(See Charles Dickens, Oliver Twist 333 (Dover Thrift ed., Dover 

Publications 2002) (1983) [“‘If the law supposes that,’ said Mr. 

Bumble, squeezing his hat emphatically in both hands, ‘the law is 

a ass - a idiot’”].)

4

4

Appellant claims that the Third Amendment is actually a 

restatement of the Second Amendment by which all the terms of 

the Second Amendment not amended by the Third Amendment 

are restated in the Third Amendment. We reject the argument 

because the no contest clause applies to “any and all 

amendments” of the trust agreement and says nothing about 

restatements of the trust. Generic no contests clauses, which is 

what we have here, are obsolete. (Perrin v. Lee, supra, 164 

Cal.App.4th at p. 1249.) “Estate planning practitioners must 

draft each no contest clause with particularity, considering in 

each case which instruments are intended to be subject to the no 

8

 
Pendente Lite Order Removing Appellant as Trustee

Appellant contends that the trial court abused its 

discretion in removing her as trustee. This was a pendente lite 

order and “without prejudice.” It is not appealable. Section 1304, 

subdivision (a) makes appealable any “final order” under section 

17200 including an order removing a trustee (§ 17200, subd. 

(b)(1)). 

Disposition

The judgment (order denying petition to disinherit 

respondent) is affirmed. The purported appeal from the (order 

removing appellant as trustee) is dismissed. In light of the 

settlement of the underlying litigation, we do not award costs. 

CERTIFIED FOR PUBLICATION.

YEGAN, J.

We concur:

GILBERT, P. J.

PERREN, J.

contest clause, and specifically identifying each such instrument.”

(Ibid.)

9

 
Glen M. Reiser, Judge

Superior Court County of Ventura

______________________________

StakerLaw, Tax and Estate Planning and Brandon P. 

Johnson, Sasha L. Collins; Manfredi, Levine, Eccles, Miller & 

Lanson and Don Lanson for Appellant.

Lowthorp, Richards, McMillan, Miller & Templeman 

and Cristian R. Arrieta for Petitioner and Respondents.