Filed: 7/13/2016

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

EDWARD BENNETT GREGGE,

Plaintiff and Appellant,

v.

MICHAEL HUGILL, as Trustee, etc., 

Defendant and Respondent.

 H040663

 (Santa Clara County Super. Ct.

 No. 1-12-PR-170606)

Edward Bennett Gregge (Bennett) challenges the dismissal of his Probate Code 

section 17200 petition to determine the validity of a 2008 amendment to his grandfather’s

inter vivos trust. The petition alleged that Bennett’s grandfather lacked testamentary 

capacity and was subject to undue influence when he executed the amendment. We 

conclude that the trial court abused its discretion when it dismissed Bennett’s petition 

under Probate Code section 17202 based on a non-party disclaiming his interest in the 

trust estate. The court’s acceptance of the disclaimer was contrary to public policies of 

effectuating a testator’s intent and dissuading elder abuse, and was premised on the 

erroneous view that the disclaimer effectuated a settlement of the lawsuit. A settlement 

assumes the consent of the parties; it is not a side deal between the court and a nonlitigant. Bennett had an interest in challenging the validity of the 2008 amendment, and 

the prosecution of his petition was necessary to protect that interest. Accordingly, we 

will reverse the judgment. 
2

I. BACKGROUND

William B. Hugill died in 2011. His wife, Janice, had passed away in 1996.1 In 

1990, the couple created an inter vivos trust appointing William as trustee. That

instrument provided for the establishment of two separate trusts as soon as one spouse 

died—the decedent’s irrevocable trust, and the survivor’s amendable and revocable trust. 

The trust further provided that, upon the death of the surviving spouse, both trusts would 

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

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

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

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

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

youngest grandchild turned 26. The document contained a no contest provision.

In 1997, William amended the survivor’s trust, designating a fixed $900,000 to 

fund the grandchildren’s trust, to be distributed as stated in the 1990 trust instrument. He 

allocated the estate residue among his four children, with 30 percent to be disbursed to 

Patrick, 30 percent to be disbursed to Marjorie, five percent to be disbursed to Michael, 

and 35 percent to be disbursed to Holly.

In 2000, William amended the survivor’s trust by eliminating Michael’s five

percent residual share and increasing Patrick’s share to 35 percent. In 2001, William 

removed Michael’s children Kathleen and Cameron as beneficiaries of the 

grandchildren’s trust, but he restored their status one year later. In 2005 William again 

removed Cameron as a grandchildren’s trust beneficiary. He also divided the $900,000 

grandchildren’s trust into equal shares for his six other grandchildren, to be distributed—

half to the grandchild and half to the grandchild’s parent who is William’s child—when 

 

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

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

disrespect.
3

each grandchild turned 26. As a result, under the 2005 amendment each named 

grandchild would receive $75,000 (one half of $150,000). The trustee was vested with 

discretion to disburse sums from each grandchild’s share to pay for that grandchild’s 

higher education before age 26.

William designated Marjorie as first successor trustee in 1997, with Michael, 

Holly, and Patrick (in that order) designated as successor trustees in the event Marjorie 

was unable to serve. William never changed Marjorie’s designation as first successor 

trustee, but he removed Michael from the list of successor trustees in 2001.

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

weeks after he underwent surgery to remove a subdural hematoma. The 2008 

amendment restored Michael as a trust beneficiary on equal footing with his siblings, and 

it restored Cameron as a grandchildren’s trust beneficiary on equal footing with his sister 

and cousins. Under the amendment, Michael was designated to succeed William as 

trustee, with Marjorie, Holly, and Patrick (in that order) designated as successor trustees. 

By adding Cameron as a grandchildren’s trust beneficiary, the 2008 amendment reduced 

each grandchild’s fixed disbursement under the 2005 amendment from $75,000 to 

$64,286, a difference of $10,714.

In late 2009, William resigned as trustee and Michael became successor trustee. 

According to Michael’s first account and report filed May 1, 2012, when William died in 

2011 the survivor’s trust held assets exceeding $4.2 million.

II. TRIAL COURT PROCEEDING

Following Michael’s first accounting, Holly’s son Bennett filed a petition under 

Probate Code section 172002to determine the validity of the June 5, 2008 amendment to 

the survivor’s trust. Bennett alleged that William lacked testamentary capacity and was 

unduly influenced by Michael in executing the 2008 amendment, and that Michael 

 

2 Unspecified statutory references are to the Probate Code. Unspecified 

subdivisions are to section 17200.
4

unduly benefited from the disposition of the trust estate and from his appointment as 

successor trustee. The petition alleged further that Michael had deprived William of 

proper medical care after William fell in 2009, and in 2010 when William contracted 

pneumonia. The petition sought a determination that the 2008 amendment was void due 

to lack of testamentary capacity and undue influence. 

In preparation for trial, Michael moved in limine to exclude all evidence 

supporting a challenge to the residue of the survivor’s trust estate. Michael argued that

Bennett, as a grandchild, was not a beneficiary to the trust residue, and thus had no 

standing to challenge the residue. Bennett argued that as a beneficiary of the trust, he 

was entitled to challenge the validity of the 2008 amendment in its entirety under 

section 17200. 

At argument held on the first day of trial, Michael identified Bennett’s interest in 

the 2008 amendment as $10,700. He argued that Bennett’s interest was not an interest in 

the residuary estate so it did not provide him with standing to challenge the residue, and 

that if $10,000 “is what would be holding up the Court in terms of a full dismissal,” he 

was certain the residuary beneficiaries who had formally objected to Bennett’s petition3

would pay the difference to Bennett to end the litigation, subject to the right to recover 

their attorney’s fees. Citing section 17202, which authorizes a court to dismiss a 

section 17200 petition “if it appears that the proceeding is not reasonably necessary for 

the protection of the interests of the trustee or beneficiary,” Michael argued that Bennett

should not be allowed to burden the residue with litigation. 

The court expressed its view that Bennett could contest the 2008 amendment 

because that instrument reduced his interest in the grandchildren’s subtrust. The court 

was uncertain whether, if Bennett were to prevail, the remedy would be to invalidate only 

 

3

Patrick and Marjorie filed an objection to the petition, denying that William 

lacked testamentary capacity or was unduly influenced when he executed the 

2008 amendment.
5

the grandchildren’s subtrust in which Bennett held an interest (resulting in Cameron 

losing his one-seventh interest in that subtrust) or the entire instrument. At that point

Michael told the court that “Cameron will waive his one-seventh interest in the 

grandchildren’s trust” to dispose of the case in its entirety. Bennett rejoined that Michael 

should not be able to manipulate standing at the time of trial, and that the challenge to the 

2008 amendment affected not only Bennett’s own pecuniary interest in the 

grandchildren’s trust, but the validity of the entire instrument. 

Emphasizing that the law disfavors will contests, the trial court stated its intention 

to dismiss the petition under section 17202 if Cameron would agree to relinquish his 

interest in the grandchildren’s trust, because that relinquishment would eliminate 

Bennett’s standing by restoring his interest to what it was before the 2008 amendment.

The court explained: “[I]f Cameron gave up his share because he wants to save his 

family not just the expense but so everybody can get along because that’s the most 

important thing in a family – and I think that’s why will contests are disfavored, correct, 

in probate? [¶]...[¶] Then there is no harm to vet it and everybody can live in 

harmony [¶]...[¶] So isn’t that what the policy of the law is, if will contests are 

disfavored?” 

Bennett disagreed, arguing “When there’s undue influence and when there’s lack 

of testamentary capacity, when there is elder abuse, will contests, trust contests and elder 

abuse complaints are very much favored by the courts and the [L]egislature.” The court

countered: “Except that none of the other beneficiaries believe that that is what 

happened, if they didn’t themselves raise the issue in a petition.” To which Bennett 

responded: “And you don’t need more than one beneficiary to raise an issue. If you have 

four beneficiaries ... [y]ou don’t need two, three or four of four. You don’t need a 

majority to do a trust or will contest. You need one beneficiary. Bennett is the one 

beneficiary ... and he is attacking the instrument that impacted his beneficial interest 
6

because he believes it was procured against a 90-plus-year-old man in violation of 

applicable law.” 

The court further described its reasoning: “I just think that the courts should want 

to do what’s in everybody’s best interest. And we’re an equitable court. And so I think if 

the family wanted to get this over and done with and defeat standing, that’s their 

prerogative. [¶]...[¶] And if a family can live in harmony and a person doesn’t lose 

whatever they thought they were going to lose and nobody else in the family objects to 

the issue, then that should be the end of it. That should be what happens.” The court 

continued, “You know where I stand in terms of standing”—that “[i]f Cameron’s going 

[to] come in here and say that he’s given up his interest so that Bennett’s not affected in 

any negative way, then I would find that there’s no standing because his pecuniary 

interest is not affected.” The court nonetheless invited briefing on the issue and on 

whether, if Cameron would not disclaim, Bennett’s challenge would extend to the entire 

trust, or only to the grandchildren’s trust.

Cameron signed a declaration disclaiming his interest in the grandchildren’s trust

conditioned on the entry of a final order dismissing the petition, and Michael filed that 

declaration with a memorandum arguing that the petition should be dismissed in its 

entirety under section 17202 because Cameron’s disclaimer eliminated Bennett’s 

standing to challenge the 2008 amendment. Bennett’s memorandum argued that his 

beneficiary status conferred standing to challenge the 2008 amendment in its entirety, and 

that section 17202 should not be used to defeat his challenge in light of public policy 

against undue influence and elder abuse. 

When the court reconvened, Bennett pressed that public policy favored a trial on 

the merits of his undue influence and lack of capacity claims. But the court viewed 

Cameron’s disclaimer as a settlement of the estate resulting in the elimination of 

Bennett’s pecuniary interest in a challenge to the 2008 amendment: “Cameron wants 

peace in his family. He is even offering to give up his portion so that Bennett’s portion 
7

of his interest is not in any way impaired. There’s a settlement of this matter in that 

instance.” The court found “that Cameron has agreed to give up his portion of whatever 

he might inherit, so that Bennett’s interest in the grandchildren’s trust is not negatively 

affected; therefore 17202 applies[.]” The judgment reflected a dismissal under 

section 17202. 

III. DISCUSSION

A. STANDARD OF REVIEW

Section 17202 provides that “[t]he court may dismiss a petition if it appears that 

the proceeding is not reasonably necessary for the protection of the interests of the trustee 

or beneficiary.” No court has addressed the proper standard of review of a dismissal 

under section 17202, although one court has applied the abuse of discretion standard to a

dismissal under section 17202’s predecessor statute, former section 1138.5. (Copley v. 

Copley (1978) 80 Cal.App.3d 97, 106.) Being permissive and not mandatory, a dismissal 

under section 17202 invokes the discretion of the trial court. (Cf. Schwartz v. Labow

(2008) 164 Cal.App.4th 417, 427 [“[T]he probate court has wide, express powers to 

‘make any orders and take any other action necessary or proper to dispose of the matters 

presented’ by the section 17200 petition. (§ 17206.)”].) Accordingly, we will apply the 

abuse of discretion standard to the trial court’s assessment of the interests of the trustee or 

beneficiary under section 17202. However the interpretation and application of that 

statute is a matter for our independent review. (International Alliance of Theatrical Stage 

Employees, etc. v. Laughon (2004) 118 Cal.App.4th 1380, 1387.)

“The discretion of a trial judge is not a whimsical, uncontrolled power, but a legal 

discretion, which is subject to the limitations of legal principles governing the subject of 

its action, and to reversal on appeal where no reasonable basis for the action is shown.”

(Westside Community for Independent Living, Inc. v. Obledo (1983) 33 Cal.3d 348, 355.) 

“The scope of discretion always resides in the particular law being applied, i.e., in the 

‘legal principles governing the subject of [the] action ... .’ Action that transgresses the 
8

confines of the applicable principles of law is outside the scope of discretion and we call 

such action an ‘abuse’ of discretion.” (City of Sacramento v. Drew (1989) 

207 Cal.App.3d 1287, 1297.) 

B. STANDING 

Bennett argues that he has standing to contest the 2008 amendment both as a 

vested beneficiary of the grandchildren’s trust and as a contingent beneficiary and 

successor-in-interest to his mother Holly’s portion of the trust residue. He argues that as 

a beneficiary section 17200, subdivision (a) (providing that a trust beneficiary may 

petition the court “concerning the internal affairs of the trust”), subdivision (b)(1) 

(proceedings to address construction of the trust instrument), subdivision (b)(3) 

(proceedings to determine the validity of a trust provision), subdivision (b)(10) 

(proceedings to appoint or remove a trustee), and subdivision (b)(12) (proceedings to 

redress a breach of trust) give him a statutory right to test the validity of the 

2008 amendment. 

Subdivision (a) provides that “a trustee or beneficiary of a trust may petition the 

court under this chapter concerning the internal affairs of the trust or to determine the 

existence of the trust.” Subdivision (b) identifies several types of proceedings 

“concerning the internal affairs of the trust.” On its face, section 17200 allows Bennett, 

as a vested beneficiary of the grandchildren’s trust,

4

to file a petition challenging the 

validity of the 2008 amendment. (§ 24, subd. (c); see In re Estate of Bowles (2008) 

169 Cal.App.4th 684, 699.) In our view, the petition falls under subdivision (a) 

concerning the existence of the trust, and under subdivisions (b)(1), (b)(3), and (b)(13) 

(approving or directing the modification or termination of the trust). 

 

4 We reject Bennett’s argument that he is a contingent beneficiary to Holly’s 

interest in the trust residue. Holly’s interest in the trust passed to her in its entirety upon 

William’s death and is now vested. Whatever interest Bennett may or may not have in 

Holly’s property at the time of her death is not yet known and not governed by the trust.
9

Bennett’s petition, however, is subject to dismissal under section 17202, “if it 

appears that the proceeding is not reasonably necessary for the protection of the interests 

of the trustee or beneficiary.” (§ 17202.) Bennett had a pecuniary interest in the 

grandchildren’s trust that would have been protected by a successful undue influence or 

lack of capacity challenge to the 2008 amendment (cf. Lickter v. Lickter (2010) 

189 Cal.App.4th 712, 728 (Lickter) [beneficiary challenging testamentary instrument 

must have an interest “that may be impaired, defeated, or benefited by the proceeding at 

issue.”]; Jay v. Superior Court (1970) 10 Cal.App.3d 754, 758 [a beneficiary under a will 

may contest a later will or codicil “if his pecuniary interest in the devolution of the 

property would [] be affected or impaired by the later will or codicil.”]) until Cameron’s 

disclaimer eliminated any potential financial impact on Bennett’s share of the subtrust. 

Thus, to determine whether the trial court’s dismissal was appropriate, we turn to whether 

Cameron’s disclaimer was properly accepted by the trial court.

C. THE DISCLAIMER AND DISMISSAL

Bennett argues that the trial court’s dismissal of his petition was contrary to public 

policy. According to Bennett, the trial court’s deprivation of his standing has shielded 

Michael from any accountability and essentially sanctioned an estate plan executed by 

unlawful means. Bennett argues that public policy favors testamentary contests involving 

credible allegations of undue influence and lack of capacity, compelling courts to 

adjudicate, not dismiss, those contests. In support of his position that this policy holds 

true even when a majority of the beneficiaries do not support the contest, Bennett cites 

Estate of Lowrie (2004) 118 Cal.App.4th 220 (Lowrie). The Lowrie court noted that 

standing under the Elder Abuse Act (Welf. & Inst. Code, § 15600 et seq.) must be 

analyzed in a manner that induces protection of the victimized, and must be interpreted to 

deter, not encourage, such abuse, so that abusers who gain control of an estate cannot use 

a restrictive interpretation of standing to avoid accountability. (Lowrie, at pp. 230–231.) 

Michael counters Bennett’s public policy argument by noting that Bennett had not filed
10

an elder abuse claim, and he lacks standing to do so. Michael refers us to the Lickter

court’s conclusion that a court does not have discretion “to find standing in order to 

further the public policy in favor of encouraging people to report elder abuse and file 

elder abuse lawsuits.” (Lickter, supra, 189 Cal.App.4th at p. 730.) 

As we will explain, the trial court’s acceptance of Cameron’s conditional 

disclaimer, and the resulting dismissal under section 17202, was contrary to public policy

and an abuse of discretion. The trial court was of the view that it could invite Cameron’s 

disclaimer because will contests are disfavored, and that Cameron’s disclaimer would 

amount to a settlement. Neither is correct.

The notion that will contests are disfavored is grounded in the same public policies 

supporting no contest provisions—“the public policies of discouraging litigation and 

giving effect to the purposes expressed by the testator.” (Estate v. Black (1984) 

160 Cal.App.3d 582, 586–587; see also Estate of Kaila (2001) 94 Cal.App.4th 1122, 

1128.) But the public policy disfavoring litigation does not give the trial court the 

authority or discretion to dismiss a beneficiary’s petition. Our Supreme Court has long 

recognized that any policy disfavoring will contests is countered by “ ‘the right of a 

citizen to have his claim determined by law.’ ” (Lobb v. Brown (1929) 208 Cal. 476, 

490–491 (Lobb); see also In re Estate of Hite (1909) 155 Cal. 436, 439 [“Public policy 

dictates that the courts of the land should be open, upon even terms, to all suitors.”].) In 

strictly construing a forfeiture clause in an undue influence will contest, the Supreme 

Court in Lobb recognized that “public policy demands that full and complete opportunity 

should be given to all interested parties to test the validity of such a testamentary 

document, not only to protect that which may be rightfully and legally theirs, but also to 

preserve the wishes and desires of the testatrix against designing persons seeking to take 

advantage of her age and infirmities which are the usual result of advanced years.” 

(Lobb, at pp. 491–492.) 
11

The public policy recognized by the Supreme Court in Lobb has resonated more 

recently in a 2007 California Law Revision Commission report examining the 

enforceability of no contest clauses. The Commission reported that no contest clauses 

can be used to shield fraud or undue influence from judicial review, and it recognized that 

“the policy of effectuating the transferor’s intentions” would be undercut if a challenge to 

a testator’s capacity could be thwarted by a no contest clause. (37 Cal. Law Revision 

Comm. Rep. (2007) at pp. 362, 370–371.) It recommended enacting a probable cause 

exception to a no contest clause’s enforceability for undue influence type challenges. 

(Id. at p. 362.)

Here, trial commenced with Bennett, a vested beneficiary having a pecuniary 

interest in the proceedings, ready to prosecute his undue influence and lack of capacity 

claims. As the petitioner, Bennett had weighed the risk of a loss (including, as Michael 

had made clear in his settlement conference statement, a forfeiture challenge to Bennett’s 

and Holly’s interests in William’s estate) against his right to have a court determine 

whether his grandfather’s testamentary intent was reflected in the 2008 amendment. In 

light of long-held policies of effectuating a testator’s intent and dissuading elder abuse, 

we conclude that the trial court abused its discretion by inviting a dismissal of the action

and accepting Cameron’s conditional disclaimer with the stated objective of terminating 

the litigation. 

Further, Cameron’s disclaimer was necessarily limited to Cameron’s interest in the 

2008 amendment. Thus, the trial court’s dismissal had the incongruous result of 

implementing the 2008 amendment with respect to Michael and his siblings but the 

2005 amendment with respect to Cameron and William’s other grandchildren.

5

 

 

5

The trust, as it existed after the 2005 amendment, excluded Michael and 

Cameron as beneficiaries, and had Marjorie serving as first successor trustee. The 

2008 amendment, at issue here, added Michael and Cameron as beneficiaries by reducing 

the interests of the grandchildren’s trust and residuary beneficiaries, and named Michael 

instead of Marjorie as first successor trustee. 
12

We acknowledge the competing policy supporting will contest settlements “in the 

interest of the preservation of family ties, the adjustment of equities, and avoiding 

nonproductive waste of the assets of the estate.” (Estate of Schuster (1984) 

163 Cal.App.3d 337, 342.) However, the trial court’s interpretation of Cameron’s 

disclaimer as a settlement was incorrect. A settlement is an agreement among adverse 

parties, and Bennett did not agree to settle the case. The court’s acceptance of Cameron’s 

conditional disclaimer did not preserve Bennett’s family ties or promote equities vis-à-vis 

Bennett. By thwarting Bennett’s petition, Cameron’s $64,286 disclaimer protected his 

father’s one-quarter interest in the residue, an interest that approximated $825,000 as of 

William’s death. The disclaimer also shielded Michael from having to defend against 

allegations affecting his interest in and management of William’s estate.6 

Under the facts of this case, the court abused its discretion by dismissing the 

petition under section 17202 as not reasonably necessary for the protection of Bennett’s 

interest. Setting aside Cameron’s disclaimer, Bennett, a vested beneficiary with a

pecuniary interest in the proceeding, was deprived of the right to challenge the 

2008 amendment on undue influence and lack of capacity grounds. (See Jay v. Superior 

Court, supra, 10 Cal.App.3d 754 at p. 758.) We conclude that Bennett was entitled to a 

trial on his petition, and that the court abused its discretion by promoting a dismissal 

which deprived him of his interest in a trial. We will remand the matter for the trial court 

to strike Cameron’s disclaimer and resume proceedings on Bennett’s claims. 

 

6

The parties disagree as to whether Michael would be required to resign as trustee 

should Bennett prevail on his petition. In post argument letters, Michael argues that his 

appointment as successor trustee would not be affected by Bennett’s petition because he 

has been serving as trustee under a 2009 Successor Trustee Acceptance executed after 

William resigned as trustee, and Bennett’s petition had not alleged that William’s 

resignation or Michael’s acceptance were invalid. Bennett argues that William’s 

resignation did not amend the trust, and that the 2001 amendment would govern the 

succession of trustees.
13

In light of that disposition, we do not address Bennett’s other grounds for reversal, 

including the alleged error flowing from the court’s interlineation on the judgment 

prepared by Michael’s counsel. 

IV. DISPOSITION

The judgment is reversed, and the matter is remanded for further proceedings 

consistent with this opinion. 

Appellant is entitled to costs on appeal.

____________________________________

Grover, J.

WE CONCUR:

____________________________

Rushing, P.J. 

____________________________

Márquez, J. 
Trial Court: Santa Clara County Superior Court

Superior Court No. 1-12-PR-170606

Trial Judge: Carrie A. Zepeda-Madrid

Counsel for Plaintiff/Appellant 

Edward Bennett Gregge

Kenneth W. Kossoff

Donna M. Klugman

Panitz & Kossoff, LLP

Counsel for Defendant/Respondent 

Michael Hugill, as Trustee 

Paul D. Fogel

Dennis Peter Maio

Reed Smith LLP

Sheri Lynn Sudweeks

Sugai & Sudweeks, LLP