Filed 10/5/ 17 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

WILLIS E. URICK, III,

Plaintiff and Appellant,

v.

DANA URICK, as Trustee, etc.,

Defendant and Respondent. B278257

(Los Angeles County Super. Ct. No. BP171001)

APPEAL from order of the Superior Court of Los Angeles County, Lesley C. Green, Judge. Reversed

. Meserve, Mumper & Hughes, Michael A. Angel and Cliff Melnick, for Plaintiff and Appellan t. Sacks, Glazier, Franklin & Lodise, Robert N. Sacks and Eunice Y. Lim, for Defendant and Respondent.

__________________________2 A beneficiary filed a petition for instructions as to
whether the “no contest” clause of his mother’s trust had
been violate d after his sister sought to reform the trust to eliminate his interest. The sister, in her capacity as trustee, filed a special motion to strike the petition under Code of Civil Procedure section 425.16 (the anti

- SLAPP statute)

, 1 which the probate court granted. On appeal, the brother recognizes that petitions to enforce a no contest clause under the Probate Code necessarily satisfy the first step of the
anti

- SLAPP analysis, because they are based on protected petitioning activity. He contends that peti tions to enforce a no contest clause should be exempt from the anti

- SLAPP statute, however, because applying the anti

- SLAPP statute in this context undermines the purposes of both statutory
schemes. He also contends that he showed a probability of prevail ing under the second step of the analysis , because his sister filed the reformation petition in her individual capacity, it was a direct contest and the grounds includ ed fraud, and she had no probable cause to file it. Although we appreciate the strength of the argument in favor of exemption , the plain language of the anti

- SLAPP statute applies to a petition to enforce a no contest clause. We conclude, however, that the brother established the minimal

1 SLAPP is an acronym for “Strategic Lawsuits Against Public Participation.” ( Equilon Enterprise s v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57, fn. 1.)3

merit necessary to show a probability of success at th is stage of the proceedings. The order is reversed.

FACTS AND PROCEDURAL HISTORY

Allyne Urick ’s Estate Plan

On March 8, 2013, Allyne Urick executed the Allyne L. Urick Trust Agreement

. 2 On her death, her daughter Dana
Urick would be the successor tru stee. If Dana should cease
to serve, Allyne’s son Willis E

. Urick

, III would serve as

trustee. The trust was structured as a charitable remainder annuity trust

, which pays a fixed amount of income to the
donor’s beneficiaries and gives the remainder to a charity.
At Allyne’s death, after certain payments and distributions from the trust estate, the remaining trust principal would be annuitized and the income distributed in equal share s to Willis, Dana, and Dana’s son Trentyn Urick

- Stasa . Upon
terminatio n of the annuity, the remaining principal would be distributed to Phillips Academy Andover

, “In Memory of Willis E. Urick, Jr., Class of 1934.” Allyne executed a pour

over will as well

. On January 3, 2014, Allyne addressed a handwritten

note “ [ t ] o whom it may concern

, ” which stated, “I hereby

2 Because the parties and the decedent share the same last name, they will be referred to individually by their first names for clarity

.4

delete my son Willis E. Urick III from the assets of my Family Trust

, established March 8, 2013. [¶] I have shared my reasons in a document which is in a sealed envelope, to be opened and re ad in the event of a c ontest.” On August 6, 2014, however, Allyne executed an

“ Amendment and Full Restatement of the Allyne L. Urick Trust Agreement dated March 8, 2013. ” It state d that its provisions “shall control over all earlier statement of the Trust provisions.” Dana w as appointed as the successor
trustee. If she ceased to serve, Wells Fargo Bank was named

as successor trustee

. The restated trust was also a char itable remainder annuity trust. After certain payments and distributions from the trust estate, the remaini ng principal was to be annuitized and the income generated
would be distributed in equal shares to Willis, Dana, and
Urick

- Stasa . Payment of the annuity amount was to cease “upon the earliest of [ Urick

- Stasa ] attaining the age of thirty

- five (35) years, u pon the death of the last surviving named recipient of a share of the annuity amount or upon
the latest date all owed by Internal Revenue Code §[] 664.”
Distributions to Urick

- Stasa were to be held in trust and distributed on a schedule. When the payment o f the annuity

amount cease d , the remaining principal and any
undistributed income was to be distributed to Phillips Academy in memory of Willis E. Urick, Jr., Class of 1934.
The trust contain ed a no contest clause providing, “In the event that any Benefic iary or other individual who is specifically not named as a Beneficiary, including5

grandchildren or spouses of the Trustor’s children, shall contest any aspect of this Trust or attempt to set aside, nullify, or void the Trust or the distribution thereof in any way, whether successfully or unsuccessfully, then the Trustor directs that such rights of such person shall be
ascertained as it would have been determined had that person predeceased the execution of this instrument without living issue.”
Dana was a ppointed as the successor t rustee under the trust. Allyne passed away on August 18, 2015, and Dana
assumed the role of trustee.

Petition for Reformation of Trust

On February 16, 2016, Dana filed a petition to reform
the trust under Probate Code sectio ns 17000, subdivision (b)(1), and 17200, subdivisions (b)(3), (b)(4)

, and (b)(13)

– (14). The petition stated that “ Petitioner, Dana Urick, Trustee of The Allyne L. Urick Trust

, ” sought to reform the trust on the ground s that its terms were misrepresented b y the drafter, Allyne had mistakenly signed the trust believing it reflected her intent, and the trust did not contain the distribution plan that she requested of the drafting attorney

. The petition noted that mistake of law is a ground for
reformation un der Civil Code sections 1578 , and that a written instrument may be reformed on the application of an aggrieved party under Civil Code section 3399. Dana proposed to reform the trust to correctly state the trustor’s6

intent as follows: a fter distributing s pecific bequests and personal property, the remaining principal would be divided into two shares, with one share for Dana and one for Urick

Stasa . The assets would be held in trust for 10 years, then distributed outright to Dana and Urick

- Stasa . If no
be neficiaries survive d , the assets would be distributed in equal shares to four institutions, one of which was Phillips Academy. No mention was made of the distribution to Phillips Academy being in memoriam. The attorney caption at the top of the petitio n and the attorney signature block on the final page state d that the attorneys represent ed Dana

, but did not mention her role as

trustee . Dana signed a verification of the petition which did

not state that she was signing it as trustee.
Dana attached sev eral documents to the reformation petition , including a letter to Allyne from her attorney Mark Boykin dated December 14, 2012. Boykin confirmed that Allyne wanted her son and daughter to receive a fixed percentage of her estate in the form of an annuity for the
rest of their lives and wanted her grandson to receive a substantial sum in trust , with the remainder to Phillips Academy. She wanted to reduce potential estate tax es , but
was more concerned about providing for her grandson and

not having her chil dren receive a large sum of money at her
death. In a letter dated January 7, 2013, Boykin provided Allyne with a draft of the trust. He confirmed that Allyne
wanted Willis and Dana to receive an annuity of five percent7

of her net estate for their lifetim es, with the remainder to
Urick

- Stasa

. Allyne responded that she wanted Urick

- Stasa to have an equal annuity share to her children . Boykin explained that he could complete the trust as she asked , but giving Urick

- Stasa a present annuity interest in addit ion to
the remainder interest could lead to substantial additional

taxes. In a letter dated February 6, 2013, Boykin enclosed a draft for Allyne. He explained that he used a charitable
remainder trust based on their telephone conversation in
which she st ated that she wanted Phillips Academy to receive the remainder, even though the gift would probably not qualify for charitable treatment. Allyne signed the trust on March 8, 2013. The trust
was funded with her residence, an apartment building , and

seve ral investment accounts. She had a number of bank

accounts payable on death through beneficiary designations
which were not placed in the trust. After Allyne ’s handwritten note on January 3, 2014, expressing h er intent to disinherit Willis, Boykin prepar ed
an amendment to the trust that made Dana the sole trustee and distributed annuity amounts to Dana and Urick

- Stasa only . The amendment was never signed. He prepared a
similar amendment in February 2014, which was also never signed. In August 2014, Boy kin prepared the fully restated trust, which Allyne executed. Willis and Phillips Academy each objected to the reformation petition.8

Petition for Instructions as to Violation of No Contest Clause

On May 31, 2016, Willis filed a petition for instructions

as to whether Dana’s petition violated the no contest clause
of the trust

. He argued that the reformation petition was a
direct contest to invalidate the distributive provisions of the trust on the basis of fraud, undue influence

, and duress, in
vi olatio n of Probate Code section 21310, subdivision (b)(4). Willis sought instructions from the court as to whether the reformation petition constituted a direct contest u nder
Probate Code section 21310 et seq., and whether Dana lacked probable cause to file the petition.

A nti

- SLAPP Motion

On August 4, 2016, Dana filed an anti

- SLAPP motion in her capacity as trustee . She argued that the anti

- SLAPP statute applied because filing a petition to reform the trust

was protected litigation activity under the anti

- SL APP

statute. Willis could not show a probability of prevailing on the merits, because : (1) she filed the reformation petition in her capacity as trustee ; (2) it was not a direct contest, because she sought to reform the trust on the ground of
mistake ; an d (3) she had probable cause for filing the petition.9

Opposition to A nti

- SLAPP Motion

Willis opposed the anti

- SLAPP m otion. He argued that
the anti

- SLAPP statute should not apply to the no contest provisions of the Probate Code. Even if the statute ap plied,
he had a reasonable probability of prevailing on the merits

. The evidence showed Dana filed the reformation petition in her individual capacity as a beneficiary rather than as an independent trustee

. In her petition, for example, she alleged stand ing as an aggrieved party under Civil Code
section 339 9 . Dana could only claim to be an aggrieved party in her capacity as a beneficiary

. Dana’s petition was a direct contest because it sought to invalidat e the distributive provisions of the trust by dis inheriting her brother and the charity . She lacked probable cause because the restated

trust had superseded the handwritten amendment disinheriting Willis. Boykin had videotaped Allyne’s execution of her original estate plan in 2013. Willis submit ted a transcript of
the discussion and the execution of the documents. Allyne
stated that she did not want to leave her estate outright to
her two children. Boykin explained that Dana, Willis

, and
Urick

- Stasa would receive five percent of the trust for the

res t of their lives

, or until Urick

- Stasa reache d age 35. Allyne corrected him and said it would be five percent for each child. They went off the record. On the record, Boykin stated, “Mrs. Urick, you and I had a discussion off the record about your desir es for the distribution of your estate.”10

Allyne answered, “That’s correct.” Boykin continued, “And it’s not five percent to each of your three children.” Allyne said, “I understand that now.” Boykin responded, “And you understand that it’s five percent of the entire value of the trust every year.” Allyne answered, “Correct.” Boykin added, “Split three ways.” Allyne said, “Right. Got it.” Boykin asked, “And that’s what you want to do?” Allyne said, “Yes, I do.” Boykin said, “Okay.” Allyne added, “That is quite a bit of money from where I am sitting.” Boykin continued, “All right. And then that is going to continue until both of your children have passed away and [ Urick

Stasa ] attains age 35 years; correct?” Allyne said, “Correct.” Boykin ask ed, “Then what do you want to have happen to the trust fund? [¶] Where would it be distributed at th e point [ Urick

- Stasa ] reached 35?” They had a discussion off the record about the length of time that the annuity would be paid to Urick

- Stasa . Allyne t hought she might want to
extend it . She wanted to confer and ask for Boykin ’s advice. Boykin explained that the remainder going to Phillips Academy would not be zero, and would probably be
somewhere between three and ten million dollars. Allyne responde d , “Oh, that’s a lot of dough right there.” She decided that they would have to give some consideration to the distribution, but at present she would leave it as it was
written . Before Allyne signed the documents, Boykin asked if she had an opportunity t o review them that morning and previously. She said that she did. Boykin asked, “And we had discussion about [ Urick

- Stasa ’s] distribution at age 35?”11

Allyne said they had. Boykin asked, “And you are now okay with that; correct ?” Allyne answered, “Yes

. At the present
time. Yes.” A llyne signed the documents.

Repl y and Trial Court Ruling

Dana , in her capacity as trustee, filed a reply

. She filed a notice of joinder in her individual capacity. Willis opposed the joinder motion. A hearing was held on September 19, 2016. The court denied the joinder motion
and took the matter under submission. On September 28, 2016, the trial court issued a minute order granting the anti

- SLAPP motion. The court found the disinheritance petition arose out of protec ted litigation activity. The court further found that Willis had failed to

s how a probability of prevailing because Dana’s petition was brought in her capacity as trustee. It was not a direct
contest because she brought it on the grounds of mistake and

m isrepresentation, not duress, fraud

, or undue influence

. The trial court granted the motion to strike and awarded attorney fees to Dana. Willis filed a timely notice of appeal from the order granting the motion to strike. On November 18, 2016, the trial court awarded attorney fees to Dana of $24,795 .00 and costs of $83.50.12 DISCUSSION

Anti

- SLAPP Statute and Standard of Review

“Courts construe the anti

- SLAPP statute broadly to protect the constitutional rights of petition and free speech. ” ( Anderson v . Geist (2015) 236 Ca l.App.4th 79, 84 .)
“Resolution of an anti

- SLAPP motion involves two steps.” ( Baral v. Schnitt (2016) 1 Cal.5th 376, 384 ( Baral ).) In the first step , the moving pa rty must establish that the claim at issue arises from free speech or petition ing activity protected by section 425.16. ( Ibid .) Under section 425.16 , an “ ‘act in furtherance of a person’s right of petition or free speech
under the United States or California Constitution in connection with a public issue’ includes: (1) an y written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under
consideration or re view by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” ( Code Civ. Proc., § 425.16, subd. (e).)13 If the moving party establishes that the claim arises
from protected activity , the burden shifts to the opposing party to demonstrate a probability of prevailing on the merits. ( Baral

, supra , 1 Cal.5th at p. 384.) Th e second step
has been compared to a “summary

- judgme nt

- like procedure

. ” ( Taus v. Loftus (2007) 40 Cal.4th 683, 714; Baral

, supra , 1 Cal.5th at p. 384

. ) “The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law. [Citation.] ‘[ C]laims with the requisite minimal merit may proceed.’ [Citation.]” ( Baral

, supra , at p p

. 384

– 385.) We review an order granting or denying a n anti

SLAPP motion de novo. ( Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 106 7.) “‘We exercise our independent judgment to determine not only whether the anti

- SLAPP statute applies, but whether the complainant has established a reasonable probability of prevailing on the merits. [Citation.]’ [Citation.]” ( Greco v.
Greco (2016) 2 Cal.App.5th 810, 820 ( Greco ) .)

No Contest Clauses

A “no contest clause” is “a provision in an otherwise valid instrument that, if enforced, would penalize a14

beneficiary for filing a pleading in any court.” ( Prob. Code, § 21310, subd. (c).) 3
“A no co ntest clause ‘essentially acts as a disinheritance device, i.e., if a beneficiary contests or seeks to impair or invalidate the trust instrument or its provisions, the beneficiary will be disinherited and thus may not take the gift or devise provided under the instrument.’ [Citation.] ‘The purpose of no contest clauses “is to discourage will contests by imposing a penalty of forfeiture against beneficiaries who challenge the will.”’ [Citation.] ‘In essence, a no contest clause conditions a beneficiary’s right to take the share provided to that beneficiary under such an instrument upon the beneficiary’ s agreement to acquiesce to
the terms of the instrument. [Citation.]’

. . . [Citation.]” ( Betts v. Cit

y National Bank (2007) 156 Cal.App.4th 222, 231, f n. omitted.)

“ No contest clauses, whether in wills or trusts, have long been held valid in California. [Citations.] Such clauses promote the public policies of honoring the intent of the donor and discouraging litigation by persons whose expectations ar e frustrated by the donative scheme of the
instrument. [Citation.] [¶] In tension with these public policy interests are the policy interests of avoiding forfeitures and promoting full access of the courts to all

3 “‘Pleading’ means a petition, complaint, cross

complaint, objection, answer, res ponse, or claim.” (Prob. Code, § 21310, subd. (d).)15

relevant information concerning the vali dity and effect of a will, trust, or other instrument. [Citation.] In light of these opposing interests, the common law in California recognized the enforceability of no contest clauses, albeit strictly construed, ‘ so long as the condition was not prohib ited by some law or opposed to public policy. ’ [Citation.]” ( Donkin v.
Donkin (2013) 58 Cal.4th 412, 422 ( Donkin ) .)
The California Law Revision Commission , after studying the no contest law

, issued a report in 2008
recommend ing retention of the statute with significant revisions. ( Recommendation: Revision of No Contest Clause Statute (Jan. 2008) 37 Cal. Law Revision Com. Rep. (2007)

pp. 359, 3 91

– 399 (Revision Rep. ).) “ According to the Commission, no contest clauses are still supported by a number of imp ortant public policy interests, including respecting a transferor ’ s ability to control the use and disposition of his or her own property and to avoid the cost, delay, public exposure, and additional discord between beneficiaries involved in litigation ove r the transferor ’ s estate plan. (Revision Rep., supra , at pp. 364

– 366.) ” ( Donkin, supra, 58 Cal.4th at pp. 424

– 4 25.)

“ The Commission acknowledged, however, that other public policy concerns ‘ can trump a transferor ’ s intention to
create a no contest cl ause. ’ (Revision Rep., supra, 37 Cal. Law Revision Com. Rep. at p. 369.) It noted that as a matter of general public policy, ‘ a person should have access to the courts to remedy a wrong or protect important rights. ’ ( Ibid. ) The Commission stated that a no contest clause16

should be applied conservatively to avoid a forfeiture that is not intended by the transferor. ( Id., at pp. 369

– 370.) The Commission agreed that judicial proceedings may be

nece ssary to determine a transferor’ s intentions. ( Id., at pp

. 370

– 372.) And it emphasized that important public policy interests support judicial supervision of an executor, trustee, or other fiduciary. ( Id., at p. 372.) ” ( Donkin

, supra , 58 Cal.4th at p. 425.) To resolve uncertainty, the Commission recommende d simplifying the statute by defining the types of contest s narrowly . ( Donkin

, supra , 58 Cal.4th at p. 425 .) “ ‘ A beneficiary should not be punished for bringing an action to ensure the proper interpretation, reformation, or administration of an estate pl an. Such actions serve the public policy of facilitating the fair and efficient administration of estates and help to effectuate the
transferor ’ s intentions

. . . . [¶] The proposed law would merely extend that principle to its logical end

. . . . ’ ( [ R evision Rep., supra, 37 Cal. Law Revision Com. Rep. ] at p. 395.) ” ( Id. at p. 4 26 .) The Legislature repealed and replaced the statutes governing no contest clauses based on the
recommendations of the Commission. (Stats. 2008, ch. 174, §§ 1, 2, p. 567 [re pealing forme r § 21300 et seq., and adding § 21310 et seq.]; Sen. Rules Com., Off. of Sen. Floor Analyses, Unfinished Business Analysis of Sen. Bill No. 1264 (2007

– 2008 Reg. Sess.) as amended June 18, 2008 ; Donkin

, supra, at pp. 426

– 4 27 .)17 Under the curren t law, a no contest clause will only be enforced against a pleading that challenges certain property
transfers , a creditor’s claim, or “a direct contest that is brought without probable cause.” (Prob. Code, § 21311,
subd. (a)(1).) 4 A “direct contest” is a contest that alleges one or more terms of a protected instrument are invalid based on a ground listed in Probate Code section 21310, including “[m]enace, duress, fraud, or undue influence.” ( Id. , § 21310,
subd. (b)(4).) “For the purposes of this sectio n, probable cause exists if, at the time of filing a contest, the facts known

4 Probate Code section 21311 provides in full, “(a) A no contest clause shall only be enforced against the following types of contests:

(1) A direct contest that is brought without probable cause.

(2) A pleading to challenge a transfer of property on the grounds that it was not the transferor’s property at the time of the transfer. A no contest clause shall only be enforced under this paragraph if the no contest clause expressly provides for that ap plication.

(3) The filing of a creditor’s claim or prosecution of an action based on it. A no contest clause shall only be enforced under this paragraph if the no contest clause expressly provides for that application. (b) For the purposes of this secti on, probable cause exists if, at the time of filing a contest, the facts known to the contestant would cause a reasonable person to believe that there is a reasonable likelihood that the requested relief will be granted after an opportunity for further inv estigation or discovery.”18

to the contestant would cause a reasonable person to believe that there is a reasonable likelihood that the requested relief will be granted after an opportunity for further inve stigation or discovery.” ( Id. , § 21311, subd. (b).)

Protected Activity

Willis contends the anti

- SLAPP statute should not be applied to a petition to enforce a no contest clause. His argument is not unreasonable, but it ultimately fails, as we

cannot d isregard the plain language of the anti

- SLAPP

statute. A cause of action arises from a protected activity under
the anti

- SLAPP statute if it arises from “any written or oral

state ment or writing made before a .

. . judicial proceeding.” ( Code Civ. Proc., § 425.16, subd. (e)(1).) A “contest” is “a pleading filed with the court by a beneficiary that would result in a penalty under a no contest clause, if the no contest clause is enforced.” (Prob. Code, § 21310, subd. (a).)
Willis’s petition alleging a vi olation of the no contes t clause
arises from a pleading filed with the probate court and therefore is subject to the anti

- SLAPP statute

. Willis contends applying the anti

- SLAPP statute in proceedings to enforce no contest clauses encourages litigation and discord between beneficiaries and increases litigation costs , contrary to the policies behind the no contest provisions and the intent of testator s

. Willis also notes that specific rules unique to the Probate Code should control over19

general provisions o f the Code of Civil Procedure. “ The general rules of the Code of Civil Procedure do not apply when the Probate Code provides special rules. In the absence of a special rule, the general rules of practice apply to matters of procedure in the probate court

. . . . [¶] Those cases which have held provisions of the Code of Civil Procedure inapplicable in probate proceedings involve provisions of the Code of Civil Procedure which are inconsistent with specific provisions of the Probate Code. (See, e.g., Est ate of Neilson [(1962)] 57 Cal.2d 733; Code Civ. Proc., § 1033 inconsistent with Prob. Code, § 1232); Estate of
Wallace (1977) 74 Cal.App.3d 196, 201; Code Civ. Proc., § 1003 inconsistent with Prob. Code, § 1233.) ” ( Swaithes v. Superior Court (1989) 212 Ca l.App.3d 1082, 1088

– 10 89 .) We conclude that although the policies underlying the

no contest provisions have been carefully balanced by the Legislature and the anti

- SLAPP procedures may impede
some of those goals

, including increasing litigation costs an d potential delay, no provision of the Probate Code has been
shown to be inconsistent with the anti

- SLAPP provisions. The language of the anti

- SLAPP statute is clear and unambiguous, and it has been applied to other probate court petitions. ( Greco

, supra , 2 Cal.App.5th at pp. 823

– 826 [anti

SLAPP statute applied to a claim for constructive fraud , but trustee’s use of trust funds to pursue litigation against
beneficiaries was not a protected activity] .) There may be valid reasons to exempt enforcement of n o contest clauses
from the anti

- SLAPP statute, but if so, it is for the20

Legislature to create an exception. (See generally Cassel v. Superior Court (2011) 51 Cal.4th 113, 136 [“We express no view about whether the statutory language, thus applied, ideally balances the competing concerns or represents the soundest public policy. Such is not our responsibility or our province. We simply conclude, as a matter of statutory construction, that application of the statutes’ plain terms to
the circumstances of th is case does not produce absurd results that are clearly contrary to the Legislature’s intent.”].) The trial court properly found that Dana’s
reformation petition was a protected activity under the anti

SLAPP statute.

Probability of Prevailing on Merits

Willis contends the anti

- SLAPP motion should have
been denied because he established a reasonable probability of prevailing on the merits. We agree.

A. Filing as a Beneficiary

A contest is a pleading filed with the court by a beneficiary. Willis c ontends there is ample evidence to meet his burden to establish that Dana filed the reformation petition as a beneficiary of the trust. We agree.
The petition identifie d Dana as trustee only once in the opening sentence , while every other reference to Da na , and the petition as a whole

, was consistent with her interest as a21

beneficiary. The attorney caption and the attorney signature block state d that the attorneys represent ed Dana

, without identifying her as trustee. Dana signed a
verification of the re formation petition which did not state that she was filing as trustee

. The petition allege d that under Civil Code section 3399, a written instrument could be
reformed based on the application of a n aggrieved party.
Dana was aggrieved as a beneficiary, no t as a trustee. The goal of the petition was to disinherit Willis and substantially reduce any potential gift to Phillips Academy, making the
distribution of assets far more lucrative for Dana and her

son . The petition was consistent with the interests o f Dana as a beneficiary , not with her fiduciary duties as a trustee to the beneficiaries , including Willis and Phi l lips Academy,
whose interests would be impaired or eliminated by the reformation petition

. Viewing the evidence in the light most
favorable to Willis, he made a prima facie showing that
Dana filed the reformation petition i n her capacity as a beneficiary, or in her dual capacity as trustee and beneficiary. Dana’s evidence, although conflicting

, did not defeat
Willis’s claim as a matter of l aw. Dana note d that she was not required to file the reformation petition as an aggrieved party under Civil Code section 3399, because she had standing to file it as trustee under Probate Code section
17200. Dana invoked Civil Code section 3399 in her pe tition

, however, which was evidence that she filed the petition as a beneficiary

. We also note that both trustee s and22

beneficiar ies may petition the probate court under Probate Code section 17200, so the statute do es not definitively
support one interpret ation over the other

.

B. Grounds for Direct Contest

Willis contends he made a prima facie showing that the reformation petition constituted a direct contest on the ground of fraud. This is correct. There is sufficient evidence
to conclude that one o f the grounds for the reformation petition was fraud

.

“ ‘The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or “sci enter”); (c) in tent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.’ [Citations.]” ( Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)
The grounds for reformation alleged in the petition
include d misrepresentation and nondis closure. On the first page of the petition, Dana allege d that the trust was not drafted in accordance with Allyne’s intent and the terms of
the trust were misrepresented by the drafter. Dana later allege d her belief that Boykin made a mistake, or “of his own accord, Mr. Boykin had Allyne sign a document that did not reflect her wishes with respect to the distributions upon her death, the removal of her son as a beneficiary and trustee, or the amount the named charity would ultimately get were23

Dana and [ Ur ick

- Stasa ] both deceased.” The petition allege d
that Boykin removed Willis as a trustee but not a beneficiary , slipped it by Allyne

, and had her sign the restated trust. Boykin knew some of the provisions might not work, but had Allyne sign the restated trust anyway, knowing Allyne thought the trust was being distributed to
Dana and Urick

- Stasa

. These are allegations of misrepresentations made by Boykin, knowing they were
false

, with the intent that Allyne would rely on them. The petition also alleges j ustifiable reliance, in that Allyne believed she was being properly advised and the trust was drafted as she had requested. The resulting damage s alleged were that the trust provisions did not reflect the true intent of the trustor. Willis made a prima f acie showing that the grounds alleged in the reformation petition included fraud in the form of misrepresentation and nondisclosure. Dana contends the reformation petition was not a
direct contest because she did not seek to invalidate the trust, but mere ly to reform the trust to reflect the trustor’s intent. This is incorrect. A direct contest is a pleading that alleges one or more terms of a protected instrument are invalid based on a ground set forth in Probate Code section

21310. Dana’s reformation petition sought to invalidate the terms providing distributions to Willis as a result of Boykin’s misrepresentations or concealment. The effect of Dana’s proposed action

— to invalidate certain distributive provisions of the trust on grounds enumerated in s ection 21310

— controls over the label that she gave to the remedy that she24

sought. (See Civ. Code, § 3528 [“The law respects form less than substance”].)

C. Probable Cause

Willis contends that Dana brought the reformation petition without probable cau se. We conclude Willis made a prima facie showing that Dana did not have probable cause to file the reformation petition. 5 Allyne ’s original trust provided after her death for an annual income to her children for life and to her grandchild
in trust until age 35

. She explained on videotape that she did not want to leave her estate to her children outright. Boykin explained the trust provisions to her on and off
camera. She wanted to consider the distri bution age for her grandson further , which she did

, and she executed the trust documents. Around the holidays in 2014, Allyne
disinherit ed her son by way of a handwritten amendment to her trust. Boykin prepared two separate amendments to disinherit Willis, but Allyne did not sign them . Instead, she fully restated her trust more than a year later , superseding her handwritten amendment and reinstating her son as a beneficiary

. The restated trust continued to be structured as

5 The trial court did not reach the issue of probable cause. Because we review of the sufficiency of the showing under the second prong of the anti

- SLAPP analysis de novo, we independently resolve the issue.25

a charitable remainder annuity trust. Thus

, the original
trust and the restated t rust both specify Allyne ’s intent to provide interests to Dana, Willis, Urick

- Stasa

, and Phillips Academy. Both trusts also provided for Urick

- Stasa ’s interest to remain in trust for him until age 35.
Wi llis has demonstrated a reasonable probability of

p revailing on the issue of probable cause. Although Allyne
hand wrote an amendment to remove him as a beneficiary,
she did not sign later amendments Boykin prepared to disinherit him . Instead, Allyne chose to restate her trust in
full to supersede her hand written amendment and expressly reinstate Willis as a beneficiary

. Dana had no other evidence to support her claim that her mother intended
Dana and Urick

- Stasa to be the sole beneficiaries of her

trust. Willis has sufficiently established at this stage of the proceedings that a reasonable person would not believe

, based on the facts known to Dana, that there was a
reasonable likelihood that the trust would be reformed to provide solely for Dana and her son.
Even if the handwritten amendment could be t he basis for a reasonable person to believe that after further discovery the probate court was likely to eliminate Willis’s interest, there were no facts in the record that would cause a reasonable person to believe the probate court would reform Phillips Academy’s interest as the remainder beneficiary. Allyne twice signed trust instruments that provided a substantial remainder to Phillips Academy. There is no evidence that she intended to make an outright gift to Dana26

and Urick

- Stasa in 10 years, with a much smaller contingent gift to Phillips Academy in the event of both their deaths. Allyne wanted her grandson’s share held in trust for him
until age 35. Under the proposed reformation, Urick

- Stasa ’s share would be distributed at age 18.
Dana contend s that she had probable cause t o file the reformation petition because she had reason to believe the relief would be granted after an opportunity for further investigation or discovery. She contends the grounds for reforming the trust will require further inquiry into Allyne’s
communications to determine whether the trust reflects Allyne’s testamentary intent. At this stage, Dana has fallen well short of establishing as a matter of law that she had a
reasonable basis to believe the relief she requested wo uld be granted based on the information available to her or after further discovery

. Willis presented evidence with the minimal merit necessary to overcome the anti

- SLAPP
motion. Because the order granting the motion to strike must be reversed, the order awarding attorney fees must be
reversed as well.27 DISPOSITION

The order granting the motion to strike and the order awarding attorney fees are reversed. The probate court is directed to enter a new and different order denying the
motion to strike

. App ellant Willis E. Urick

, III is awarded his costs on appeal.

KRIEGLER, Acting P.J.

We concur:

BAKER, J.

DUNNING, J. 

 Judge of the Orang e Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.