Filed 9/20/22 Urick v. Urick CA2/5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

WILLIS E. URICK, III,

Plaintiff and Respondent,

v.

DANA URICK,

Defendant and Appellant.

 B313980, B315720

 (Los Angeles County

 Super. Ct. No. BP171001

 consolidated with 

 Nos. 16STPB00850,

 16STPB00852,

 16STPB00854)

APPEALS from orders of the Superior Court of Los Angeles 

County, Paul T. Suzuki, Judge. (Retired judge of the L.A. Sup. 

Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the 

Cal. Const.) Reversed and remanded. 

Horvitz & Levy, John A. Taylor, Jr., and Rebecca G. Powell; 

Higgs, Fletcher & Mack, John Morris, Roland H. Achtel and 

Rachel M. Garrard for Defendant and Appellant. 

Snell & Wilmer, Michael A. Angel, Roger A. Grad, Jing 

Hua; Greines, Martin, Stein & Richland and Robin Meadow for 

Plaintiff and Respondent.
2

Appellant Dana Urick’s attorney was hospitalized 10 days 

before trial on two complex probate petitions with potentially 

devastating consequences, which had been filed against Dana by 

her brother, respondent Willis E. Urick, III.

1 The probate court 

denied Dana’s request for a continuance, and after holding a trial 

with no appearance for Dana, granted petitions to remove Dana 

as trustee of their mother’s trust and to disinherit her. Dana 

appeals from the orders granting the petitions on the ground that 

the trial court abused its discretion by denying her request for a 

continuance and it is reasonably probable that she would have 

obtained a more favorable result. 

We conclude that it was an abuse of discretion under the 

circumstances of this case to deny the request for a continuance, 

and to the extent that Dana must show prejudice, it is highly 

likely that she would have obtained a more favorable outcome

had the continuance been granted. To meet his burden to show 

Dana violated the “no contest” clause of the trust, Willis needed

to prove Dana filed a direct contest to the trust without probable 

cause. Specifically, in this case, he had to show that Dana filed a 

petition to reform the trust in her individual capacity as a 

beneficiary based on specific statutory grounds, including fraud, 

duress, or undue influence, and that she had no probable cause to 

believe the probate court would grant the relief that she sought

with additional investigation or discovery. The record reveals 

that Dana intended to present evidence at trial that, if credited 

by the trier of fact, conclusively established she filed the pleading 

1 Because multiple parties share the last name Urick, they 

will be referred to by their first names for ease of reference. 

Phillips Academy Andover joined in the petitions in the probate 

court, but has not filed a respondent’s brief on appeal.
3

solely in her capacity as trustee. In addition, Dana’s evidence 

reflected that her pleading was based on allegations of mistake, 

and any stray allegations suggesting fraud, undue influence, or 

duress were merely incidental background allegations for context. 

There is a reasonable chance the trier of fact would find, based on 

the totality of the evidence, that someone in Dana’s position

would have believed there was a reasonable likelihood her

petition to reform the trust would be granted after an opportunity 

for further investigation or discovery. The probate court’s order 

granting the petition for removal and surcharge was based in 

significant part on the order granting the no contest petition. 

Therefore, both orders must be reversed, and the matter 

remanded for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND2

Drafts by Attorney William Eick

In the summer of 2012, Allyne Urick met with attorney 

William Eick to create an estate plan. Based on their 

conversations, he provided a draft for her trust in July 2012. At 

Allyne’s death, the trustee would distribute a specific dollar 

amount of $600,000 to her son Willis and $1,000,000 to a trust for 

her grandson Trentyn (Dana’s son). If Trentyn died before 

2 On its own motion, the court takes judicial notice of the

published opinion in Urick v. Urick (2017) 15 Cal.App.5th 1182

(Urick I), as well as the unpublished opinions in Urick v. Boykin

(Mar. 23, 2020, B295773), Urick v. Elkins Kalt Weintraub Reuben 

Gartside, LLP (Nov. 18, 2021, B310056), and Urick v. Lewitt

(May 23, 2022, B312238).
4

age 45, the assets in his trust would be distributed to Philips 

Academy Andover. The remainder of the assets in Allyne’s trust 

would be distributed to her daughter Dana, or if she predeceased 

Allyne, to Trentyn’s trust.

In August 2012, Eick provided a revised draft. Instead of a 

specific dollar amount to Willis, the draft provided $2,000,000 to 

a trust for Willis, from which Willis would receive $5,000 per 

month. Eick explained that by placing the money in trust, Willis

could not give the assets to his wife or their children. He noted 

that Willis was the designated beneficiary on some of her bank 

accounts.

In September 2012, at Allyne’s request, Eick provided 

another draft of her estate plan that removed Willis as a 

beneficiary. Eick sent a draft in October 2012, which also did not 

provide anything to Willis. Eick noted that because Willis 

received his share of assets outside of the trust, the no contest 

provision of the trust would have no effect on his share and there 

would be no incentive for him to refrain from filing a lawsuit to 

contest the trust or allege alienation of affection.

Drafts by Attorney Mark Boykin

Frustrated with the lengthy planning process, Allyne 

turned to attorney Mark Boykin to draft her estate plan. In 

December 2012, Boykin confirmed in a letter that Allyne wanted 

Willis and Dana to receive a fixed percentage of her estate in the 

form of an annuity for the rest of their lives, with the remainder 

to Phillips Academy, and wanted her grandson Trentyn to receive 

a substantial sum in trust. After hearing Allyne’s interest in 

providing annuity payments to her children for their lifetimes, 
5

Boykin had suggested a charitable remainder annuity trust 

(CRAT) for the primary gift and a conventional trust for Trentyn. 

Allyne wanted to reduce potential estate taxes, but was more 

concerned about providing for her grandson and not having her 

children receive a large sum of money at her death.

After further research and discussion between them, 

Boykin confirmed in a letter that Allyne wanted Willis and Dana 

to receive a fixed amount of five percent per year. She wanted 

two-thirds of her estate placed in the CRAT and the balance in a 

trust for Trentyn, to pay for his education and necessities, with 

the principal distributed at ages 25, 30, and 35. Boykin’s

analysis of the CRAT demonstrated it would not qualify for 

charitable treatment under the tax laws, because there was not a 

sufficient probability of any assets remaining for Phillips 

Academy after the deaths of Dana and Willis, due to their 

relatively young ages. As a result, there would be no reduction in 

estate taxes using a CRAT. Allyne had preferred to use the 

CRAT approach, although it might not provide tax savings.

Boykin provided her with a draft for the trust in January 

2013. He noted that Allyne wanted Willis and Dana to receive an 

annuity of five percent of her net estate for their lifetimes, with 

the remainder to Trentyn. A substantial generation skipping 

transfer tax might be imposed. He added, “You have instructed 

me that you wish to minimize the taxes imposed upon your estate 

at your death, but that you[r] desire to provide for Trentyn is to 

take priority over that concern; accordingly, I have drafted the 

Trust in such a manner as to carry this out.” Although the trust

used many technical legal terms to ensure proper interpretation 

in litigation, he assured her that she did not need to be overly 

concerned with language other than the distribution provisions.
6

Allyne responded that she wanted Trentyn to have an 

equal annuity share to her children. Boykin explained that he 

could not even approximate the tax treatment for such a plan. 

He would complete the trust as instructed, but warned that 

giving Trentyn a present annuity interest in addition to the 

remainder interest could lead to substantial additional taxes.

In February 2013, Boykin provided another revision of the 

trust based on the CRAT approach, because Allyne decided to 

name Phillips Academy to receive the remainder, even though 

the gift would probably not qualify for charitable treatment. He 

had advised leaving the option open, because tax regulations 

could change and make it possible for the gift to qualify.

Execution of the Estate Plan

Allyne executed the Allyne L. Urick Trust on March 8, 

2013, at age 89. The trust was structured as a CRAT. Upon 

Allyne’s death, the trust principal would be annuitized and 

distributed in equal shares to Willis, Dana, and Trentyn. The 

annuity payments would end upon the earlier of Trentyn 

reaching age 35 or the death of the last surviving named

recipient of a share of the annuity. Dana was approximately 

52 years old and Trentyn was nine years old when Allyne 

executed the trust. Trentyn’s distributions were to be held in 

trust and distributed on a schedule. Upon termination of the 

annuity, the remainder of the trust assets would be distributed to 

Phillips Academy. The distribution provision stated, “The 

Trustor acknowledges that this gift may, but indeed may not, 

qualify as a Charitable Remainder Trust under the laws and 

regulations in effect at the time of her death.” The trust 
7

contained a no contest clause to discourage litigation by 

beneficiaries or individuals who were specifically not named as 

beneficiaries. 

The trust’s primary asset was a 60-unit apartment building 

held in a joint venture with Lucien Seifert. The building was 

constructed on real property that had been owned by the Urick 

family for nearly 100 years. The trustee’s powers included the 

power to retain the original assets in the trust and to continue to 

retain and operate any business interest that was part of the 

trust. The trust also provided the trustee, in the trustee’s 

absolute discretion, with the right to take any action to minimize 

tax liabilities. 

Boykin videotaped Allyne’s execution of her estate planning 

documents. Allyne stated that she did not want to leave her 

estate outright to her two children. Her estate consisted of a 

large piece of property that was quite valuable and brought in a 

good income. Boykin noted that her estate was large enough to 

be subject to federal estate tax, even under the current 

guidelines. Boykin explained that Dana, Willis, and Trentyn

would receive five percent of the trust for the rest of their lives, or 

until Trentyn reached age 35. They held a conversation off the 

record and returned to clarify that the beneficiaries would receive 

five percent of the entire trust each year, split three ways. At 

that point, Boykin misstated the distribution, saying, “And then 

that is going to continue until both of your children have passed 

away and Trentyn attains age 35 years; correct?” Allyne agreed. 

Boykin asked where the trust fund would be distributed 

once Trentyn reached age 35. They held another discussion off 

the record. Allyne thought she might want to extend the length 

of time that the annuity would be paid to Trentyn. She added, 
8

“Because if this trust and the assets in the trust should remain as 

valuable as they are at the present time, meaning the building, of 

course—it’s such an old building anyway—the school would get 

several million dollars, wouldn’t it?” She asked Boykin to 

estimate how much the remainder would be. Boykin stated that 

although they discussed the fact that the Internal Revenue 

Service (IRS) tables showed the remainder going to Philips 

Academy would be zero, he didn’t think the school would actually 

receive zero. He believed the remainder would probably be 

somewhere between $3 and $10 million. Allyne responded, “Oh, 

that’s a lot of dough right there.” Boykin agreed it was a lot of 

money, but they had discussed that it needed to go somewhere 

and this was the plan she came up with that she wanted. Allyne 

responded, “Well, it was the first thing that I could think of.” She 

decided to leave it as it written for the present, but to give the 

distribution further consideration. She executed the documents.

In April 2013, Boykin sent correspondence documenting 

that Allyne had expressed concern again that Trentyn should

receive annuity payments until age 45, but after discussing the 

matter with Boykin, ultimately instructed him to leave the trust 

as it was, with distribution of the annuity to Trentyn terminating

at age 35. 

On January 3, 2014, in a handwritten note, Allyne removed 

Willis as a beneficiary of her trust. Boykin prepared trust 

amendments that eliminated Willis as a beneficiary. 

Operative Restated Trust

On August 6, 2014, Allyne executed a full restatement of

the trust. Like the original, the restated trust continued to be 
9

structured as a CRAT and provided annuity payments in equal 

shares to Willis, Dana, and Trentyn. The restatement provided, 

however, that annuity payments would end on the earliest of 

Trentyn reaching age 35, the death of the last named recipient of 

a share, “or upon the latest date allowed by Internal Revenue 

Code §[ ]664.” Although not specified in the document, the latest 

date allowed by the Internal Revenue Code was 20 years. The 

distribution provisions stated: “The Trustor acknowledges that 

this gift may, but indeed may not, qualify as a Charitable 

Remainder Trust under the laws and regulations in effect at the 

time of her death due to the value of the annuity interest, or 

other reasons, but desires that it so qualify.” 

The restated trust continued to have a no contest clause 

providing: “In the event that any Beneficiary or other individual 

who is specifically not named as a Beneficiary, including 

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.” 

The restated trust continued to give the trustee “the power 

to retain, without liability for loss or depreciation resulting from 

such retention, the original assets and all other property 

hereafter transferred . . . to the Trustee, although such property 

may not be of the character prescribed by law or by the terms of 

this instrument for the investment of other Trust assets; and, 

although it represents a large percentage or all of the Trust 

Estate, this said original property may accordingly be held as a 
10

permanent investment.” The trustee continued to have the

power to retain and operate any business interest that became 

part of the trust estate. The trust also continued to provide the 

trustee with the power, in the trustee’s absolute discretion, “to 

take any action and to make any election to minimize the tax 

liabilities of this Trust and its Beneficiaries and to allocate the 

benefits among the various Beneficiaries and to make 

adjustments in the rights of any Beneficiaries or between the 

income and principal accounts, to compensate for the 

consequence of any tax election.”

Miscellaneous provisions related to the CRAT were 

inserted at the end of the document. One of the new provisions

stated, “The operation of the Trust shall be governed by the laws 

of the State of California. However, the Trustee is prohibited 

from exercising any power or discretion granted under said laws 

that would [be] inconsistent with the qualification of the Trust as 

a charitable remainder annuity trust under [Probate Code section 

664, subdivision (d)(1)] and the corresponding regulations, unless 

the Trust has been previously determined not to qualify 

thereunder.” In addition, it provided, “The Distribution Trust 

will be irrevocable. However, the Trustee shall have the power, 

acting alone, to amend the Trust from time to time in any 

manner required for the sole purpose of ensuring that the Trust 

qualifies and continues to qualify as a charitable remainder 

annuity trust within the meaning of [Probate Code section 664, 

subdivision (d)(1)], unless it has been previously determined not 

to qualify thereunder.” 

In contrast with the creation of Allyne’s original estate 

plan, Boykin did not correspond with Allyne in writing prior to 

execution of the restated trust. He did not videotape her 
11

execution of the restated trust. His letter transmitting a copy to 

her contained no explanation of the contents of the restated trust 

or the reasons for its execution. He did not correspond with her 

again about her estate plan.

When Allyne passed away in 2015, Dana was appointed as 

the successor trustee. Trentyn was 12 years old at the time of 

Allyne’s death. 

Petition to Reform the Trust

Attorney Kira Masteller filed a petition on February 16, 

2016, to reform the trust under the provisions of Probate Code 

sections 17200 (the reformation petition). The attorney caption

and the attorney signature block stated simply, “Attorneys for 

Dana Urick.” The petition began, “Petitioner, Dana Urick, 

Trustee of The Allyne L. Urick Trust, herein hereby seeks to 

reform the Allyne L. Urick Trust” on the grounds that it was not 

drafted in accordance with Allyne’s intent, the stated terms were 

misrepresented by the drafter, Allyne had mistakenly signed the 

trust believing it reflected her intent, and the trust did not 

contain the distribution plan that Allyne requested of the 

drafting attorney. 

Among other defects, the reformation petition alleged that 

a CRAT was not an appropriate vehicle for the estate plan,

considering Allyne’s desired distribution and the nature of her 

assets. As written, the CRAT was unworkable and would incur 

substantial unnecessary taxes. In addition, prior to executing the 

full restatement of her trust, Allyne handwrote an amendment 

disinheriting Willis, and her attorney prepared several draft 
12

amendments providing solely for Dana and Trentyn upon her 

death.

The petition noted that mistake of law is a ground for 

reformation under Civil Code sections 1578, and 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’s intent as follows: After 

distributing specific bequests and personal property, the 

remaining principal would be divided into two shares, with one 

share for Dana and one for Trentyn. The assets would be held in 

trust for 10 years, then distributed outright to Dana and Trentyn. 

If no beneficiaries survived, the assets would be distributed in 

equal shares to four charitable institutions that had been

consistently named as recipients of charitable bequests in

versions of Allyne’s estate plan, one of which was Phillips 

Academy.

The proposed reformation eliminated Willis’s interest in 

the trust and substantially reduced the likelihood that Phillips 

Academy would receive any assets from the trust. Dana attached

Allyne’s correspondence, prior estate documents, and unexecuted 

drafts of estate plans. She signed a verification of the 

reformation petition that did not state whether she was signing 

in her role as trustee.

Willis and Phillips Academy each objected to the 

reformation petition. 

Petitions Filed by Willis

In May 2016, Willis filed a petition for instructions as to 

whether the reformation petition violated the no contest clause of 
13

the trust (the no contest petition). He argued that the 

reformation petition was based on allegations of duress, fraud, 

and undue influence. He sought instructions from the court as to 

whether Dana lacked probable cause to file the reformation 

petition, and if so, whether she and her issue should not receive 

her interest under the trust in accordance with the no contest 

provision.

Willis also filed a petition to remove Dana as trustee, 

surcharge her for breach of trust, reimburse the trust for attorney 

fees and costs, and compel an accounting (the removal petition). 

The removal petition argued that Dana breached her fiduciary 

duties owed to the beneficiaries of the trust by filing a

reformation petition to exclude named beneficiaries and by 

taking the position that the trust did not satisfy the requirements 

for a CRAT.

Among the exhibits that Willis attached to the removal 

petition was a letter from attorney Masteller dated October 6, 

2015, stating that she represented Dana as trustee of the trust. 

Masteller provided a copy of the trust, but stated that the trust

as drafted failed as a CRAT, and significant concerns existed

about Allyne’s intent compared to the actual document. She 

copied “Dana Urick, Trustee” on the letter.

Willis also filed a petition for an order conforming the 

charitable remainder annuity trust (the CRAT petition). He

requested the probate court amend and reform the trust to be a 

CRAT, so that as of the date of Allyne’s death, it qualified for the 

federal estate tax charitable deduction. In addition, he sought 

instructions to the trustee to distribute the annuity for a term of 

20 years or such term that the court deemed proper. He alleged 

that the trust established a CRAT on Allyne’s death, and that
14

Allyne’s intent was clear and unambiguous that the CRAT would 

qualify for the estate tax deduction. He alleged that the trustee 

was prohibited by law from taking actions that impair the 

charitable deduction and had a duty to administer the trust 

according to its terms, including taking steps necessary to qualify 

the trust as a CRAT within the meaning of the Internal Revenue 

Code. 

Willis alleged that additional mandatory operating 

provisions and an alternate charitable remainderman needed to

be added for the trust to qualify as a CRAT. Willis argued that 

the trust otherwise qualified for the charitable deduction. In 

particular, the term of the annuity was saved by the language of 

the distribution provision. A CRAT may only make annuity 

payments to a “person” for a term of 20 years or less, but can 

make distributions to an individual for life. Because Trentyn’s 

share was paid to a trust administered for his benefit, the CRAT 

must be limited to a term of years not exceeding 20 years. The 

distribution provisions of the trust required payments to cease 

upon the latest date allowed by the Internal Revenue Code, so

the term could not fail. Willis asked the court to instruct the 

trustee that the term of the CRAT is 20 years, which was the 

maximum period allowed under the Internal Revenue Code to be 

sure the trust qualified for the charitable deduction. 

Willis acknowledged that Dana’s competing reformation 

petition attempted to eliminate the CRAT, despite the saving 

language limiting the term to the maximum allowed by law. 

Under the applicable tax code provisions, the value of the 

remainder interest must be at least 10 percent of the net fair 

market value of all property placed in the trust, so the annuity 

term cannot be so long as to exhaust the remainder interest and 
15

cause it to be less than 10 percent of the initial net fair market 

value at the inception of the trust. Calculations attached to the 

petition showed the CRAT could make annuity payments for 20 

years without coming near the 10 percent remainder threshold. 

The CRAT petition alleged that due to the drafting errors, the 

trust did not currently qualify as a CRAT, and therefore, the 

amendments must be retroactive to before Allyne’s death.

Dana, as trustee, opposed the CRAT petition. She noted 

that her reformation petition and the competing CRAT petition 

agreed the trust as drafted did not meet the requirements of a 

valid CRAT. She argued that Willis’s CRAT petition altered the 

distribution even farther from Allyne’s intent and was 

inappropriate for the assets in the trust. The purpose of 

reformation was to salvage the trustor’s intent; distorting the 

terms of the distribution trust to limit payments to a maximum 

term of 20 years would eviscerate Allyne’s intent to leave the 

majority of her estate to the annuity beneficiaries.

Anti-SLAPP Motion and Appeal

Dana, as trustee, filed a motion to strike Willis’s no contest 

petition under Code of Civil Procedure section 425.16 (the antiSLAPP statute). The motion argued that the no contest petition 

should be stricken because: (1) the provision could not be 

enforced against Dana’s interest as a beneficiary based on a 

pleading that she filed in her capacity as trustee; (2) the

reformation petition was not a direct contest, because it did not 

seek to invalidate the trust and was brought on the ground of 

mistake, not duress, fraud, or undue influence; and (3) Dana had 
16

probable cause to believe the requested relief would be granted

after an opportunity for further investigation and discovery.

Willis opposed the anti-SLAPP motion. He argued that no 

contest petitions were not subject to the anti-SLAPP statute. 

Even if they were, based on references to “Dana Urick” in the 

petition and the verification, he argued that Dana brought the 

reformation petition in her individual capacity, not as trustee of 

the trust. Relying on isolated allegations , he argued the 

reformation petition was not brought solely on grounds of 

mistake, but also on grounds of undue influence, fraud, and 

duress. Lastly, he argued that Dana had no probable cause to 

believe the reformation petition would be granted, based on the 

evidence that Willis was an intended beneficiary of all Allyne’s 

prior estate plans.

Willis submitted Boykin’s declaration as to the following. 

In January 2014, Allyne said she wanted to remove Willis as a 

beneficiary and leave her estate to Dana, Trentyn, and ultimately 

Phillips Academy. Boykin met with her in March 2014, and she 

executed an amendment removing Willis from the trust. On 

April 1, 2014, she called and said that she had reconsidered

eliminating Willis. She wanted to revert to the trust that she

originally signed. Boykin met with Allyne that night. She wrote 

“revoked” on the amendment and tore it up. She allowed him to 

keep a copy, which he attached to his declaration. She asked that 

Willis not be made aware of her actions to exclude him from the 

trust. 

Boykin met with Allyne in August 2014. She appeared 

irritated or resentful that Willis might be seeking a 

conservatorship over her and asked about removing him from the 

trust. Boykin explained that Willis would challenge the trust if 
17

he had nothing to lose, but a challenge would be avoided if she 

kept him as a beneficiary of one-third of the annuity payment. 

She agreed Willis should continue to be a beneficiary. To avoid 

any doubt, Boykin prepared the restated trust, which Allyne 

executed in his presence. After that, she did not contact Boykin 

again to request any action to remove Willis as a beneficiary of 

the trust.

Dana filed a reply arguing that as trustee, she had 

authority to petition for reformation of the trust, and the petition 

stated in the very first sentence that the petitioner was the 

trustee of the trust. Although Willis argued the allegations may

support causes of action for duress, fraud and undue influence, 

Dana had not challenged the trust on any of the asserted grounds

and the petition was not a direct contest. The evidence that she 

had would lead a reasonable person to believe the reformation 

petition would be granted after an opportunity for further 

investigation and discovery.

Judge Lesley C. Green heard argument, reviewed the 

pleadings and the evidence, and granted the anti-SLAPP motion. 

The court found the anti-SLAPP statute applied, because the no 

contest petition was based on protected litigation conduct. The 

reformation petition was not a direct contest, however, because 

the petition was brought in Dana’s capacity as trustee, not as a 

beneficiary, and the grounds for seeking reformation did not fit 

into any of the categories required for a direct contest. The court 

noted that simply because the factual scenario alleged in the

petition could support a claim for fraud did not make it a direct 

contest under the Probate Code. In the court’s assessment, Willis 

had not made even the minimal showing necessary to 

substantiate a legally sufficient claim. The court struck the no 
18

contest petition, and Willis filed an appeal from the order 

denying his anti-SLAPP motion. 

In October 2017, another panel of this appellate court 

reversed the order denying the anti-SLAPP motion. (Urick I, 

supra, 15 Cal.App.5th 1182, 1186.) We agreed the no contest 

petition was litigation activity protected by the anti-SLAPP 

statute. We concluded, however, that Willis had demonstrated 

the minimal merit necessary to proceed to trial on his petition.

He had shown a reasonable probability of prevailing if the trier of 

fact credited his evidence and arguments. Dana provided 

conflicting evidence and arguments as to each point, from which

the trier of fact could find that she filed the reformation petition 

in her capacity as a trustee, the petition was brought on the basis 

of mistake alone, and Dana had a reasonable basis to believe the 

petition would be reformed, but Dana’s evidence did not 

conclusively establish any of those facts as a matter of law, and 

therefore, the anti-SLAPP motion had to be denied. (Urick I, 

supra, 15 Cal.App.5th at pp. 1196–1198.)

Additional Litigation on Behalf of the Trust, Amended 

Reformation Petitions, and Suspension of Trustee

Dana, as trustee, elected to dissolve the joint venture and 

exercised an option to buy out Seifert’s interest in the apartment 

building, but the purchase was not completed. In November 

2017, attorney Boykin filed a lawsuit on behalf of Seifert to 

enforce the buyout against Dana as trustee. Dana, as trustee,

filed a cross-complaint against Seifert to enforce the buyout

against Seifert (collectively the Seifert litigation). Ultimately, 
19

the trial court disqualified Boykin from further representing 

Seifert based on his conflict of interest.

In February 2018, Dana, as trustee, filed an action for 

professional negligence against Boykin. The trial court found the 

statute of limitations had started to run when Dana filed her

reformation petition, more than one year before she filed the 

malpractice action, and therefore, the action was barred by the 

one-year statute of limitations. Dana appealed the trial court’s 

ruling. In an unpublished case, this appellate court reversed,

finding that Dana should have been granted leave to amend to 

allege that a tolling agreement with Boykin extended the statute 

of limitations. (Urick v. Boykin, supra, B295773.)

With the assistance of new law firms, Dana, as trustee,

filed an amended petition for reformation of the trust in May 

2018. In support of the amended petition, she filed the 

declaration of attorney Masteller. Masteller declared that her 

law firm represented Dana only in her capacity as trustee. The 

firm was not retained by, and never at any point represented, 

Dana in her individual capacity as a beneficiary. In fact, Dana 

was represented in her individual capacity as a beneficiary by 

independent counsel. 

Specifically, Masteller served as counsel for Dana in her 

capacity as trustee in connection with the February 16, 2016 

reformation petition. The first sentence of the February 16, 2016 

reformation petition showed Masteller filed the petition for Dana 

as trustee by stating, “Petitioner, Dana Urick, Trustee of the 

Allyne L. Urick Trust, herein hereby seeks to reform the 

Allyne L. Urick Trust.” Masteller’s intent in drafting the first 

sentence of the petition was to define the petitioner as “Dana 

Urick, Trustee of the Allyne L. Urick Trust.” The petition never 
20

stated that it was brought by Dana as an individual, and the firm 

did not represent Dana as an individual. References to Dana in 

the attorney caption, signature block, and verification did not 

repeat that it was brought in her capacity as trustee, but the

omission was inadvertent, because the firm represented Dana 

only as trustee. In the petition, Masteller referred to Civil Code 

section 3399 for the proposition that a written instrument may be 

reformed by the aggrieved party. In Masteller’s analysis, Allyne

was the aggrieved party as a result of the incorrectly drafted 

trust, and the successor trustee Dana brought the action to 

reform the trust to reflect Allyne’s wishes. Masteller 

acknowledged, however, that the reference to Civil Code 3399 

might not have been the clearest use of the citation. 

Dana subsequently filed a second amended petition for 

reformation of the trust in July 2018. In August 2018, Phillips 

Academy joined in Willis’s no contest petition. Willis filed an 

amended no contest petition in October 2018, and a supplement 

to the amended petition in January 2019. Dana filed objections 

to the amended no contest petition and the supplement. 

On the first day of trial on the reformation petition in July 

2019, the probate court made preliminary comments and Dana 

withdrew the second amended petition for reformation. The 

probate court dismissed the petition without prejudice.

On July 16, 2019, Willis filed a petition to suspend Dana’s 

powers as trustee and appoint interim successor co-trustees. On 

October 25, 2019, Judge David J. Cowan granted Willis’s petition 

for an order conforming the CRAT. On January 23, 2020, Judge 

Cowan granted Willis’s request in the trust proceedings to 

suspend Dana as trustee and appointed interim successor 

trustees.
21

Preliminary Offer of Proof 

On January 10, 2020, at the probate court’s request, Dana 

submitted a preliminary summary of legal issues and evidentiary 

offer of proof. She noted that Willis had the burden of proof at 

trial. She provided an extensive list of witnesses. Masteller

would confirm her deposition testimony in which she 

unequivocally testified that Dana filed the 2016 reformation 

petition in her capacity as trustee. In addition, Dana would 

testify that she intended and understood that she filed the 

reformation petition in her capacity as trustee.

Dana’s expert witness would testify about the requirements 

for a trust instrument to qualify as a CRAT, the remedies for a 

trust that is not drafted to qualify as a CRAT, and the 

appropriate use of a CRAT in an estate plan. Dana also 

anticipated calling Boykin as a hostile witness. Among other 

points, his testimony would demonstrate a lack of understanding 

of the technical requirements of a CRAT, which resulted in a

trust instrument that did not qualify as a CRAT.

Other witnesses would testify to their personal knowledge 

that Allyne paid for Trentyn’s private school education and set up 

a college fund for him. In addition to witness testimony, Dana 

would present extensive documentary evidence, including the 

transcription of Allyne’s videotaped execution of the 2013 trust 

instrument and the drafts of testamentary documents 

eliminating Willis as a beneficiary.

She included a portion of her deposition testimony. She

had been a practicing lawyer since 1988, primarily in family law 

for the past 10 years. She brought the reformation petition in her 

capacity as trustee, as stated in the body of the petition. 
22

In her deposition, Dana explained that Allyne repeatedly 

told her the trust assets would provide for Dana for her lifetime. 

Dana’s understanding of the trust that was drafted, however, was 

that the bulk of the estate went to Phillips Academy, and not at 

the end of Dana’s or Trentyn’s lifetimes, but after a period of 

years. Allyne had also told Dana that money was there for 

whatever Trentyn needed. Allyne had paid for Trentyn’s private

school tuition, saying it was her privilege to do so. Dana’s 

understanding of the trust that Boykin drafted, however, was 

that it did not allow Trentyn’s share to be accessed at all until he 

was age 25, which contradicted what her mother had always

expressed that she wanted for Trentyn. If the trust did not allow 

the money for Trentyn to be used for his school tuition, there was 

an error in the drafting, based on everything that Allyne had ever 

said she wanted for Trentyn.

Dana’s understanding was that the trustee, on behalf of the 

trust, was aggrieved and had an obligation to bring to the court’s 

attention that the trust was not drafted in accordance with the 

testator’s wishes. Her understanding was also that, as drafted, 

the trust did not qualify for the tax relief that Boykin referred to 

in correspondence with Allyne. 

She had no knowledge of making an allegation of fraud in 

the reformation petition. She relied on her counsel to draft the 

trust and tax provisions of the proposed reformation in 

accordance with her mother’s intent, but aside from that, she

believed the proposed trust reformation accurately set forth her 

mother’s testamentary intent. 

Allyne had a serious heart attack in March 2014. Dana

was asked about text messages that she wrote to Willis’s wife 

expressing frustration with Allyne’s behavior during this period 
23

of her life. The portrait of Allyne that emerged was a mother who 

was demanding, controlling, anxious, easily slighted, and 

punitive. Dana did not tell her mother in advance about a

vacation that she was taking with her family for fear of her 

mother’s emotional manipulation. Dana visited and cared for 

Allyne every week, as Allyne preferred, despite having her own 

family and business, and Trentyn’s schoolwork suffered due to all 

the late nights at Allyne’s house and the hospital.

Dana testified about multiple conversations that she had 

with her mother on different occasions over a period of many 

years in which her mother insisted that Dana honor her wishes 

and ensure her brother did not receive anything from the estate. 

Her mother was very hurt that Willis and his third wife had big 

family holiday celebrations that Allyne was never included in and 

heard about later. Willis had stepchildren that Allyne had never 

met. Allyne told Dana that she had taken steps to disinherit 

Willis. At one point, Allyne had considered giving Willis a 

specific amount of money, but decided not to, because she did not 

want Willis to receive anything. A few days before her death, 

Alleyne told Dana that her lawyer had the documents, and Willis 

was going to fight Dana, but Dana must honor her wishes and 

ensure Willis got nothing. When Dana reviewed the trust 

document for the first time about a month after her mother’s 

death and learned her brother had an interest as a beneficiary, 

her initial reaction was confusion, because it was contrary to 

what her mother told Dana that she wanted. 

As trustee, Dana paid the remaining contract for Trentyn’s 

education and advanced funds against Trentyn’s share of the 

estate for tuition and educational expenses. She paid herself 

between $20,000 and $22,000 per month as trustee’s fees. 
24

Dana submitted Eick’s deposition testimony. Eick met 

with, corresponded, and prepared drafts of estate plans for Allyne 

over the course of several months before she turned to Boykin for 

estate planning services. Eick’s notes from their conversations 

reflect that Allyne said Willis was financially secure, a successful 

professional, and had plenty of money. He married a third time 

and had stepchildren that Allyne had never met. Allyne was 

concerned Willis would leave his assets to his wife, and Allyne 

did not want her assets to go to Willis’s wife or the wife’s

children. Allyne said her son and daughter did not get along and 

had different views about selling property. 

Eick explained to Allyne that if a particular person does not 

receive anything under the trust, there is no incentive for the 

person not to contest the trust. Even if she did not want to leave 

assets to a person, it was better to leave them something so that 

the person has something to lose by contesting the document, 

rather than to leave the person nothing. Allyne was going to 

provide Willis with $600,000 as a disincentive from contesting 

the trust. Allyne consistently expressed that she wanted to make 

sure her daughter got most of her money and her son really did 

not get anything except a relatively small amount of money to

discourage him from contesting the estate plan. She wanted to 

leave almost everything to her daughter and not her son.

At one point, Allyne told Eick that she changed her mind 

and did not want Willis to have any assets from the trust. She 

wanted to effectively disinherit him. Eick removed Willis as a 

beneficiary from the next draft. Allyne did not want Willis to be 

a trustee, because she was concerned that he would know rules 

that Dana did not know and would not treat his sister fairly.
25

Dana submitted Boykin’s deposition testimony. Boykin 

explained that a CRAT pays a fixed percentage to certain 

individual beneficiaries, which must be at least five percent of the 

value of the trust corpus at the creation of the trust, and in no 

more than 20 years, passes the remainder to charity. The tax 

benefit of a CRAT is the deduction on the estate tax return for 

the present value of the remainder to the charity. 

Boykin did not employ a secretary, administrative assistant 

or paralegal during the time that he represented Allyne. He also 

did not have errors and omissions malpractice insurance. Boykin 

had completed a CRAT for one client prior to drafting Allyne’s 

estate plan, although he had helped to administer several more. 

He was subsequently sued for legal malpractice by the other

client’s estate with respect to the CRAT that he drafted. Boykin’s 

standard fee to draft a trust was between $1,000 and $2,500, but 

he charged $5,000 for a CRAT. 

When Boykin first met with Allyne to discuss her estate 

plan, she was adamant that she did not want the beneficiaries to 

receive a large amount at one time. She wanted the beneficiaries

to get annuity payments for their lifetimes and anything left 

after their deaths would go to Philips Academy. She wanted 

Trentyn’s annuity to be paid until he was 35 years old, but 

Boykin knew there was a limited period of 20 years duration for a 

CRAT. He told her that her goal of providing an annuity for 

three family members with any remainder to Philips Academy 

was very close to a CRAT, except that she wanted Trentyn to 

receive distributions until age 35. He recognized that a CRAT 

did not exactly match the distribution that she wanted. He told 

her that if she could be flexible about the end date for Trentyn’s 

annuity payments, then she would be able to use a CRAT. 
26

Boykin did not calculate the tax savings or tax benefit of a 

20-year CRAT, because Allyne was more interested in who was 

getting distributions than in how much it would save in taxes. 

Tax deductions and tax savings were a secondary consideration. 

Allyne was clear that the tax objectives were secondary in her 

mind to the distribution scheme. She would rather pay less in 

taxes, but it was more important to her to get money to Trentyn.

Boykin found the form that he used for the CRAT on the 

internet after looking at six or eight sites. He believed that he 

was drafting a 20-year CRAT. He drafted the CRAT to continue 

for the maximum time allowed, which was 20 years. If Trentyn 

was 12 years old when Allyne died, the annuity would cease 

when he was 32 years old, and that was okay with her. 

In his first meeting with Allyne, before he knew about her 

interest in the apartment building, he explained that a trustee 

would liquidate the assets of the estate. Although he did not

discuss using a CRAT in that meeting, he thought she understood 

that her estate would be liquidated for the CRAT. He never 

discussed liquidation with her again. Boykin did not think about 

the tax treatment failing if the trustee kept the apartment 

building in the CRAT, because he assumed everything would be 

liquidated, even though he knew the property had been in the 

family for a very long time. 

Boykin entered the amount of the annuity, the percentage 

of the annuity, and the terms of the trust in an IRS calculator on 

the internet. The calculator stated the remainder value was zero,

and therefore, the trust did not qualify as a CRAT. In Boykin’s

experience, even though a plan did not pass on the IRS 

calculator, the CRAT would be approved by the IRS on the estate 

tax return. He believed the remainder for Philips Academy, in 
27

his experience, would be 20 percent of the amount in the trust at 

the time it was created. He advised Allyne that the website 

calculator said the remainder would be zero, but in his 

experience, it would be more like $3,000,000. He limited the 

annuity to 20 years, even though the IRS calculator showed the 

trust would not qualify as a CRAT, because the IRS calculator 

had been wrong before and he was confident it would qualify. 

The trust that he drafted accomplished Allyne’s distribution 

objectives, even if it did not receive the charitable tax benefit it 

would otherwise be entitled to.

After executing the trust, Allyne had Boykin draft an 

amendment to disinherit Willis, because she said Willis had it too 

easy, made plenty of money on his own, had two daughters who 

did not pay any attention to Allyne, and had too many young 

people freeloading off him in his home. She was adamant that 

Willis’s wife not receive any of her money.

Boykin stopped writing letters to Dana after she told him 

that someone went into her desk and took her documents. 

Instead, Boykin took extensive notes about their conversations on 

his computer, which he saved to keep a record. The computer 

with his notes crashed. His data was recovered from the cloud, 

but due to transferring the data back from the cloud, he does not 

know what the data would indicate about when it was entered or 

stored. 

In reviewing his previous declaration about the 

circumstances surrounding restatement of the trust, Boykin 

explained that Allyne said Willis would object to any treatment 

different from his sister. Boykin mentioned leaving Willis a 

specific dollar amount instead of an annuity interest, but Allyne 

said no amount of money that she could leave Willis would stop 
28

him from contesting the document if it was different from Dana’s 

share. Allyne said not to repeat her comments about Willis 

unless Boykin was forced to do so.

In April 2016, Willis’s attorney called Boykin to say that 

Dana had filed a reformation petition accusing Boykin of nothing 

less than malpractice. Willis’s attorney sought a tolling 

agreement from Boykin for a malpractice claim on behalf of 

Willis. Otherwise, he would be forced to sue Boykin to preserve 

the statute of limitations, even though it was too early to 

determine whether he had a claim. Boykin signed a tolling 

agreement, which is still in effect.

Dana also provided deposition testimony and background 

information for her expert witnesses.

Litigation Against Former Counsel

In March 2020, Dana filed a complaint against Masteller 

and her law firm on the ground that they failed to advise Dana of 

fiduciary duties as trustee or inform her that the reformation 

petition could violate those duties. The trial court sustained a 

demurrer to the complaint on the ground that Dana suffered 

actual injury in October 2017 when Urick I was issued and she 

incurred attorney fees to defend her actions in filing the

reformation petition, rather than when she was suspended as 

trustee in January 2020. As a result, her malpractice complaint 

was barred by the one-year statute of limitations. In an 

unpublished case, Division Four of this appellate court affirmed

the lower court’s decision. (Urick v. Lewitt, supra, B312238.)

On May 7, 2020, Dana filed a malpractice complaint on 

behalf of herself as the former trustee, as a third-party
29

beneficiary, and as guardian ad litem for Trentyn, against some 

of the attorneys who provided legal services to her in her capacity 

as trustee which could result in her being disinherited, removed 

as trustee, and surcharged personally in the pending probate 

litigation. The attorneys filed an anti-SLAPP motion, which the 

lower court denied. Division Two of this appellate court affirmed 

the lower court in an unpublished opinion. (Urick v. Elkins Kalt 

Weintraub Reuben Gartside, LLP, supra, B310056.)

Request for Continuance 

Trial was set to begin on Willis’s no contest petition and his 

removal petition on Monday, May 17, 2021, before Judge Paul T. 

Suzuki. On May 10, 2021, Dana’s trial counsel, James Bohm, 

advised the attorneys for the other parties that he was in the 

hospital with a medical emergency. He would not be able to try 

the case and needed a continuance.

Bohm’s associate Cynthia Beek appeared at a hearing on

motions in limine on Thursday, May 13, 2021, to inform the 

probate court that Bohm had two emergency surgeries over the

past weekend and had just been released from the hospital. He 

had major surgery, lost half his blood, and received blood 

transfusions. He was recovering on strict bed rest. His doctor 

said he is not supposed to engage anything strenuous, including 

trial work, for 30 to 60 days.

The court responded, “If I continue this case, it’s going to go 

to 2023, in February. You’re talking about almost two years from 

now. I blocked out almost five weeks for this trial.” Willis’s 

counsel objected to a continuance. Phillips Academy’s counsel 

was sympathetic, but ready for trial. A continuance for two years 
30

would cause a lot of structural problems. Willis’s counsel stated 

that Beek had been heavily involved in the case drafting 

paperwork, so was eminently qualified to step in for Bohm. He 

shared the biographies for Beek and other colleagues on the law 

firm’s website. Beek had “a wide breadth of experience assisting 

clients in a variety of areas of law, including trust litigation,” “is 

well-versed in all phases of litigation,” and “assisted clients in 

complex multimillion dollar trust litigation, at both the trial 

court and appellate level.” 

Beek responded that some of the lawyers perform 

transactional work and very few of the trial attorneys do probate 

work. She added, “As for myself, I’ve never even attended a trial, 

let alone tried a case. So, it wouldn’t be me. We simply will not 

have a trial attorney to go forward.” She stated that the law firm

would file a motion and get a declaration from Bohm’s doctor, if 

the probate court needed to see paperwork. “But[ ] frankly, I 

don’t know what—you know, we don’t have anybody who’s 

familiar with this case to go forward as trial counsel come 

Monday.”

The court continued the hearing on the motions in limine to 

Monday, May 17, and offered to continue the trial two days to 

Wednesday to allow Beek to get ready for trial or someone from 

her office to assist her. The court stated, “I am sympathetic with 

Mr. Bohm’s medical condition, and normally I’m very, very 

generous with providing continuances, but I think that all the 

parties are in a very difficult situation because there’s a 

possibility that there might be a five-year violation if I continue it 

to 2023 and that this litigation has been going on for a long 

period of time, and I do not see any other time that I can cutout 

prior to 2023.” The court added that Bohm’s health was 
31

important, “but we have so many parties here who have been 

waiting, and since the law firm does have 16 attorneys, I’m not 

going to parse out who’s the litigation attorney and who’s the 

transactional attorney. As far as I’m concerned, they’re all 

attorneys licensed to practice law and they can come to court. 

But I will give a couple more days so that whoever is going to do 

this can get prepared for it.”

Beek reiterated her request for a continuance. She argued

the five-year deadline was not in jeopardy, because Willis had 

appealed the order striking the no contest petition and the 

matter was stayed on appeal for a year, and after that, the 

shutdown for the COVID pandemic further continued the 

limitation period. She noted that Willis’s attorneys had 

requested a continuance just a few months earlier. The matter

was very complex and the firm did not have attorneys who could 

get up to speed over the weekend. Dana selected Bohm as her 

trial counsel, and his emergency came on suddenly. He thought 

he was going to the doctor about an ear infection, because he was 

very dizzy, and the doctor told him to go to the hospital. Beek 

had been unable to appear any earlier in the week to inform the 

court, because she was on the east coast where her grandfather 

was in the hospital, and she had not been expecting to be 

involved in the trial. The court did not change its ruling denying 

a continuance.

On May 14, 2021, Dana, individually and as the suspended 

trustee, filed an ex parte application to continue the trial. Her 

trial counsel Bohm had suffered a sudden, life-threatening 

medical condition that required emergency hospitalization, two 

emergency surgeries, and blood transfusions to address internal 

bleeding. He had been hospitalized for five days. He was unable, 
32

medically, to proceed on the scheduled trial date. His physicians 

placed him on strict bedrest for a week and ordered him not to 

engage in any stressful activities, such as trial, for a minimum of 

30 to 60 days to ensure his full recovery. She requested a 60-day 

continuance of the trial. She noted that she had not previously 

requested a continuance in the matter.

She asserted that Bohm was the only attorney qualified 

and prepared to try the case. Beek, who assisted Bohm with

some tasks in the case, had never been to trial, even as a second 

chair, and never even attended a civil or probate trial. No other 

attorneys at Bohm’s firm had been involved in the proceedings or 

had knowledge of the issues in the case.

The matters had been actively litigated for multiple years 

and the potential financial impact was very high. Dana selected 

Bohm for his trust litigation expertise and extensive complex 

trial experience. At Dana’s individual expense, Bohm had spent 

more than 300 hours preparing for trial. No other attorney could 

adequately represent her with 48 hours of preparation. 

Dana attached Bohm’s declaration providing the details of 

his condition, his preparation for trial, and the inability to 

substitute another attorney from his firm. She provided her own 

declaration. In addition, she attached the declaration of Bohm’s 

primary care physician providing the details of his treatment and 

his medical opinion that Bohm required a week of strict bed rest. 

After a week of bed rest, Bohm could return to light work, but in 

the doctor’s opinion should not engage in the stress of trial until 

his blood levels returned to normal in 30 to 60 days. Failure to 

follow the doctor’s instructions, in his opinion, would place 

Bohm’s health in jeopardy.
33

Willis opposed the request for a continuance. He argued 

that another lawyer in Bohm’s firm could represent Dana at trial. 

Willis would be prejudiced if the trial was continued, because the 

court could not reset the trial until 2023, and Willis had 

expended $200,000 for trial preparation that he should not be 

forced to incur again. Willis attached the biographies for every 

attorney in Bohm’s law firm and information on the firm’s 

practice areas from their website. He also attached local rules 

requiring an application for continuance of trial to be filed no less 

than one week prior to trial.

A hearing was held on the application for a continuance on

May 17, 2021. Beek appeared for Bohm on behalf of Dana. The 

court stated that it was a very hard decision, because the court 

was very sympathetic to Bohm’s situation, but the court was also 

sympathetic to the amount of fees spent in preparation for trial 

by Willis and other counsel. The court thought there was a 

possibility that Beek would step in, at least temporarily, if the 

court denied the continuance. The court also considered that 

other attorneys at Bohm’s firm had experience in probate law. 

Many trials were delayed throughout the court due to the 

pandemic, so parties in other cases were frustrated. As soon as

the probate court began holding trials again in November 2020, 

the court had been engaged in back-to-back trials. Judge Suzuki

had allocated more than one month for the Urick matters, and if

the case were continued, the court would remain idle for four 

weeks. If the court could continue the case without harming 

other litigants, the court would do so. But it was a significant 

imposition to the court to be idle for a month and continue the 

case to 2023. 
34

In addition, Dana had used at least five or six other law 

firms in the past, half of which she had sued for malpractice. The

court had to weigh all the interests. Technically, local rules

stated a continuance had to be requested within one week before 

trial, so a continuance should be denied based on that alone. 

Upon weighing the interests, the court reached the difficult 

decision to deny the continuance. 

Beek responded that the firm would not have any attorney 

ready to go to trial on Wednesday. She suggested using a judge 

pro tem or private judge. She noted Dana had incurred as much 

in attorney fees to allow Bohm to prepare for trial as the other 

parties had incurred for their attorneys. Bohm prepared more 

than 300 hours for the trial. There was no way any other 

attorney could be prepared to adequately represent Dana in two 

days. She also noted that there had been multiple judges in the 

proceeding over the course of five years.

Willis’s counsel responded that sending the matter out to 

another judge was not an acceptable solution. Judge Suzuki was 

the fifth judge on the case, and to expect another judge to get up 

to speed for this case was an unreasonable request. It would 

prejudice every party and was not a reasonable solution. He

appreciated the concern and the seriousness in which the court 

had weighed the equities, it was a difficult situation for everyone, 

but he saw no other solution other than to move forward.

Phillips Academy’s counsel stated again that he was torn. 

The “reality here is that there is a horrible burden that is going 

to have to be visited upon someone here. And, in my analysis, 

given the number of counsel that Ms. Urick has had over the 

period, given the fact that when it comes to balancing the relative 

equities of the parties, one of the parties here to this trial is a 
35

now suspended for cause fiduciary. Where the burden must be 

visited is, unfortunately, on Ms. Urick.” He noted that Dana was 

a licensed attorney, although not a trust litigator.

Beek responded that the argument about the prejudice 

caused by involving another judge was an acknowledgement of 

the complexity of the case. Trentyn’s attorney noted that if the 

trial went forward and it led to Dana’s default, then there would 

simply be a motion for relief from default. He did not see a way 

to move forward with the trial as scheduled. He urged the 

parties to attempt mediation again, but otherwise, 30 to 60 days 

was an opportunity for a judge pro tem to get up to speed on the 

matter.

Willis’s attorney replied, “Let me answer [Trentyn’s 

attorney] directly in terms of what happens with the default. We 

go right from a default into a prove-up. And I intend to proceed 

with the prove-up should Dana not appear pursuant to the notice 

to attend trial.” He did not think sending the matter out for 30 or 

60 days was a reasonable solution. He also argued that Dana 

had 14 attorneys in the matter, five or six of which had been sued 

for malpractice. “So I just say that to set the record straight in 

terms of any empathy that might otherwise befall Ms. Urick’s 

position.” He also stated that it would be an uncontested trial, 

not a default.

The court stated that it did not construe the situation as a 

default hearing. It would be a trial. The court found Dana 

should bear the consequences of not going forward with the trial 

and denied the application for a continuance. The trial court 

heard argument and ruled on the motions in limine.
36

Dana filed a writ petition seeking a stay of the trial, which 

this appellate court denied on the ground that she had an 

adequate remedy by way of appeal from any adverse judgment. 

Trial began on May 19, 2021. Two attorneys from another 

law firm appeared on behalf of Bohm, Beek, and their law firm. 

There was no appearance for Dana. The attorneys on Bohm’s 

behalf presented information from Bohm’s doctor about his 

condition, argued Bohm was the only individual who could try the 

case on Dana’s behalf, represented that Bohm had never been in 

such a dire situation in their long history with him, fell on the 

mercy of the court, and again requested a continuance of the 

trial. The court interpreted the argument as a motion to 

reconsider the court’s ruling. The court stated that it was the 

only long cause probate court, the matter could not be heard by 

any other judge, and because of the COVID pandemic, the court 

was backed up. The court denied the motion for reconsideration

of a continuance, even a continuance of two weeks. The court 

expressed a lack of confidence that the case would even finish 

within the time originally estimated by the parties. The 

attorneys for Bohm, Beek, and the law firm concluded their 

participation and left the hearing.

Trial

Trial was held on the no contest petition. The probate

court granted Phillips Academy’s motion for evidentiary or 

terminating sanctions or an order striking Dana’s objection to the 

no-contest petition, in light of her failure to appear at trial under 

Probate Code section 17206. Willis noted that the trustee was 

prohibited from exercising any power or discretion granted under
37

California law that would be inconsistent with qualification of the 

trust as a CRAT under Probate Code section 664. The trustee 

also had the power to amend the trust as required to ensure the 

trust qualified and continued to qualify as a CRAT, unless it had 

been previously determined not to qualify.

Willis discussed the differences between the restated trust 

and Dana’s proposed reformation. He noted all of the features of 

the reformation petition that suggested the petition was brought 

by Dana as a beneficiary. Willis did not provide any extrinsic 

evidence, however, to support finding that Dana filed the 

reformation petition as a beneficiary. Willis argued the 

reformation petition was based on undue influence, fraud, and 

duress, based on selected allegations. Willis introduced Dana’s

amended reformation petitions as circumstantial evidence that 

she had no probable cause to file the original petition, because 

her subsequent petitions were based solely on allegations of 

mistake. Phillips Academy also argued that lack of probable 

cause was demonstrated by the inconsistent positions taken 

among the petitions. 

Willis argued Dana’s objections, as trustee, to the CRAT 

petition had interfered with qualification of the trust as a CRAT

in violation of her duties as trustee, and therefore independently 

violated the no contest provision of the trust. Willis was honoring 

his mother’s expressly stated wishes by reforming the trust 

instrument to qualify as a CRAT, while Dana, as trustee, opposed 

it.

Counsel for Phillips Academy argued that the reformation 

petition was a wish lists of terms that Dana wanted as a 

beneficiary. The action was inappropriate for a trustee. He 

noted that after so many years of litigation, when it was time for 
38

decisions to be reached, Dana was not present and had not put on 

any evidence.

After a hearing of less than eight hours, the court granted 

the no contest petition in favor of Willis and Phillips Academy. 

The court found that Dana filed the no contest petition as a 

private individual. The court noted the features of the petition 

which led to the conclusion that Dana filed the petition

individually and not in her capacity as trustee, whereas her

subsequent amended reformation petitions clearly stated that she 

was signing them in her capacity as trustee. The reformation 

petition constituted a direct contest of the trust brought without 

probable cause, and therefore, violated the no contest clause of 

the trust. Dana would not be entitled to a distribution under the 

trust. The trial court continued the question of attorney fees to 

be considered as part of the trial on the petition for surcharge. 

The trial court ultimately entered an order granting the no 

contest petition in favor of Willis and Phillips Academy on 

May 26, 2021. 

On May 20, 2021, the interim successor co-trustees notified 

counsel that the IRS had granted the charitable deduction for the 

value of the charitable remainder interest, valued at $2,405,273, 

which was greater than anticipated. The ruling reduced the 

estate taxes owed by $1,045,424.

Dana filed further briefing on the issue of a continuance 

and appearance at trial. Willis objected to the filing, which he 

characterized as an unnoticed motion for reconsideration of the 

order denying a continuance. 

On May 24, 2021, trial began on the removal petition. 

There was no appearance for Dana. The court construed Dana’s 

further briefing to be a motion for reconsideration, which the 
39

court denied. Willis argued that the court could consider the 

evidence presented in connection with the no contest petition as 

equally relevant to the removal petition. The probate court 

agreed that some of the evidence and the ruling on the no contest 

petition would be used in the court’s removal decision. 

Willis called expert witness John Hartog, who was a 

certified specialist in estate planning, probate, and trust law. He 

reviewed the trial exhibits, including the reformation petition. In 

his opinion, Dana, as trustee, fell below the standard of care 

when pursuing the reformation petition and the amended 

petitions. Among other aspects, she favored one set of 

beneficiaries over another. She disguised her personal interests 

as a reformation petition and used trust assets to advance that 

personal interest. In addition, she fell below the standard of care 

when she opposed the petition to reform the trust to qualify as a 

CRAT, in contravention of her statutory obligation, which would 

have increased the tax liability of the trust estate. She also fell 

below the standard of care with respect to her administration of 

the trust based on these actions and her pursuit of the Seifert 

litigation. She committed waste by failing to make her mother’s 

residence productive and by expending trust assets on litigation 

that was of no benefit to the trust. In his opinion, payment of 

trustee fees to Dana was not justified. Falling below the 

standard of care justified removal of the trustee. If a trustee 

commits a breach of trust or falls below the standard of care, the 

trustee is unfit to serve, which is a basis for removal.

The court found Hartog was very qualified in terms of 

identifying the duties that Dana breached. The court stated that 

it previously found Dana filed the reformation petition as the 

trustee, as well as individually, for the benefit of some of the 
40

beneficiaries and not others, which would in and of itself be 

ground for removal. The court added further grounds that there 

was a failure to maintain the administration of the trust, such as 

continuing the Seifert litigation, which resulted in the 

expenditure of a large amount of attorney fees. As trustee, she 

should have filed her own action to conform the trust in the 

manner that the trust provisions stated Allyne preferred, 

specifically the trust provisions stating that Allyne wanted the 

tax benefit to apply to the CRAT, and not have opposed the 

petition to reform the CRAT. The court found a clear violation of 

the duty of loyalty by filing the reformation petition and 

expending enormous amounts of attorney fees. In addition, 

failing to properly administer her mother’s residence was a 

violation of the administration of the trust. Based on these 

breaches and the prior ruling on the no contest petition, the court 

ordered Dana removed as trustee. 

The court turned to the surcharge issues. A real estate 

broker estimated that the fair rental value of Allyne’s residence 

in 2016 was $5,300 per month. Willis used Allyne’s accountings 

to argue that payments for Trentyn’s private school tuition, 

Dana’s trustee fees, expenditures in connection with Allyne’s 

home and car, and attorney fees paid to various law firms were 

inappropriate.

The probate court expressed concern that the amount for 

attorney fees was large and might include legitimate expenses. 

Attorneys for Willis and Phillips Academy argued that it was all 

incurred for trust litigation and none of it was a legitimate 

expense. Willis’s attorney argued that all of the fees listed were 

incurred for the reformation petition, the CRAT objections, or the 
41

Seifert litigation. The attorneys were of no benefit to the estate 

and the attorney fees spent by Dana could be surcharged to her.

The probate court considered the no contest litigation and 

the objection to reformation of the CRAT to be liable for 

surcharge. The Seifert litigation was brought against the 

trustee, however, and involved business decisions by the trustee. 

A tax lawyer testified about the complicated negotiation and 

financing decisions involved in the buyout of the apartment 

building, as well as the complicated tax consequences. If the 

agreement had been consummated under the terms that Dana 

pursued and she had acquired the apartment building with seller 

financing, it would have impaired the trust as a CRAT and 

resulted in a complete loss of any tax benefit. Dana had offered 

to pay cash, but no appearance was made at trial to assert a 

defense for Dana based on her cash offer. The court concluded 

liability for the Seifert litigation had been established.

Willis presented an expert in auditing legal billing to 

discuss the various bills for attorney fees. Willis argued that 

Dana should be surcharged from the time that her mother died 

and she accepted the role of trustee, until the date that she was 

suspended.

The presentation of evidence and argument for the removal 

petition was completed in less than eight hours over a span of 

two days. The probate court ruled on the morning of the third 

day. The court confirmed the ruling removing Dana as trustee. 

Dana was surcharged for attorney fees paid from the trust for her 

reformation litigation and her objection to the CRAT. The court 

found Dana breached her fiduciary duties and acted in bad faith 

in prosecuting the reformation petition to exclude Willis and 

reduce Philips Academy’s beneficial interest. The court also 
42

found that the objections to the CRAT petition were in bad faith, 

since the trust document itself required all efforts be taken to 

qualify the CRAT for the benefit of the trust and the 

beneficiaries. Opposing the petition to conform the CRAT 

contravened the express terms of the trust. The total charges for 

attorney fees surcharged against Dana based on these litigation 

activities was $1,485,332.50. 

The court found that Dana had made a bad business 

decision with regard to the Seifert litigation, but found no bad 

faith. In addition, the delay actually benefitted the trust, 

because the property appreciated substantially before the sale 

was eventually completed. Accordingly, no surcharge was 

imposed on the Seifert litigation.

The trust did not provide for payment of Trentyn’s 

education expenses, so Dana was surcharged $132,424.60. The 

court also imposed a surcharge of $283,578.02 for the failure to 

rent out Allyne’s home after her death. The court found the 

trustee fees were excessive, especially under the circumstances, 

and allowed $10,000 per month for the administrative duties that 

Dana performed for the trust. As a result, the total surcharge for 

overpayment of trustee fees was $562,200. The court excused the 

first year of payments for Allyne’s car lease, but surcharged Dana 

for the remaining years for a total of $33,742. The total amount 

of the surcharges to be imposed against Dana was $2,497,076.52. 

Willis’s attorney noted that another $72,000 must be surcharged 

for overpayment of trustee fees based on another accounting 

document, with which the probate court agreed. 

On June 11, 2021, Dana filed a motion for relief from 

default judgment in the no contest proceeding under Code of Civil 

Procedure section 473, subdivision (b). Bohm filed his 
43

declaration in support of the motion, attesting that his medical 

emergency was sudden and unexpected. Willis opposed the 

motion, and the probate court denied the motion for relief from 

the judgment in the no contest proceedings. 

On June 18, 2021, the probate court entered its order 

removing Dana as trustee and ordering her to pay $2,132,905.20 

to the trust as surcharges. The court awarded attorney fees and 

costs to Willis. An amended final judgment on the removal 

petition was filed on June 28, 2021. 

On July 8, 2021, Dana filed a motion for relief from the 

judgment in the removal proceeding under Code of Civil 

Procedure section 473, subdivision (b). Willis opposed the 

motion, and the probate court denied the motion. 

Dana filed a timely notice of appeal from the May 26, 2021 

judgment and the June 28, 2021 judgment, including all 

appealable orders embraced therein. 

DISCUSSION

Motion for Continuance

Dana contends the probate court abused its discretion by 

refusing to continue trial in light of her attorney’s sudden 

medical emergency. We agree.

Trial courts may grant continuances under California Rules 

of Court, rule 3.1332(c), based on an affirmative showing of good 

cause, including “unavailability of trial counsel because of death, 

illness, or other excusable circumstances” or “substitution of trial 

counsel, but only where there is an affirmative showing that the 

substitution is required in the interests of justice.” (Cal. Rules of 
44

Court, rule 3.1332(c).) In ruling on a motion for continuance, the 

court considers all of the facts and circumstances relevant to the 

determination, which may include the proximity to trial date, 

previous delays due to any party, the length of the continuance 

necessary, alternative solutions, prejudice to parties or witness as 

a result of the continuance, the court’s calendar and the impact 

on other pending trials, and the interests of justice. (Cal. Rules 

of Court, rule 3.1331(d).) 

“A motion for continuance is addressed to the sound 

discretion of the trial court. (Link v. Cater (1998) 60 Cal.App.4th 

1315, 1321.) However, the “ ‘trial judge must exercise his 

discretion with due regard to all interests involved, and the 

refusal of a continuance which has the practical effect of denying 

the applicant a fair hearing is reversible error.’ ” (In re Marriage 

of Hoffmeister (1984) 161 Cal.App.3d 1163, 1169.)” (Oliveros v. 

County of Los Angeles (2004) 120 Cal.App.4th 1389, 1395

(Oliveros).)

“ ‘Judges are faced with opposing responsibilities when 

continuances . . . are sought. On the one hand, they are 

mandated by the Trial Court Delay Reduction Act (Gov. Code, 

§ 68600 et seq.) to actively assume and maintain control over the 

pace of litigation. On the other hand, they must abide by the 

guiding principle of deciding cases on their merits rather than on 

procedural deficiencies. (Thatcher v. Lucky Stores, Inc. (2000) 

79 Cal.App.4th 1081, 1085.) Such decisions must be made in an 

atmosphere of substantial justice. When the two policies collide 

head-on, the strong public policy favoring disposition on the 

merits outweighs the competing policy favoring judicial efficiency.

(Cf. Cordova v. Vons Grocery Co. (1987) 196 Cal.App.3d 1526, 

1532, 1533 [when evaluating dismissal of action for delay in 
45

prosecution, policy favoring expeditious administration of justice 

by compelling prompt and diligent prosecution of actions 

subordinate to policy favoring trial on merits].)’ (Bahl v. Bank of 

America (2001) 89 Cal.App.4th 389, 398–399.)” (Oliveros, supra, 

120 Cal.App.4th at p. 1395.)

In this case, the probate court refused to grant a 

continuance because the court had set aside five weeks for trial, 

the shutdown of the courts due to the COVID pandemic had 

caused several trials to be delayed and litigants who were 

waiting for trial dates were frustrated, and the parties had spent 

time and money preparing for trial. The court expected Beek to 

take Bohm’s place in this high-stakes litigation with a few days of 

preparation, despite her representation that she had not even 

planned to be present for the trial because her grandfather was

in the hospital, and despite the fact that Beek had never even 

seen a civil trial. Alternatively, the court expected another 

attorney to fill in for Bohm with a few days of preparation. Had

another attorney been substituted in to try the case as a result of 

Bohm’s medical emergency, that circumstance alone would have 

been good cause to allow a continuance of 30 to 60 days to allow

the new attorney to adequately prepare. 

The fact that over a span of five years, Dana engaged 

multiple attorneys for civil litigation and probate matters, both in 

her capacities as trustee and as an individual beneficiary, was 

not a reason to deny her request for a continuance, as Bohm was 

the attorney who had prepared for trial. The fact that she sued 

several of her former attorneys for legal malpractice, both in her

capacity as trustee and individually, was also not a factor to deny 

a continuance. In fact, Division Four of this appellate court 

found that she waited too long to file a malpractice action against 
46

Masteller and her firm, so her claims were barred by the statute 

of limitations. (Urick v. Lewitt, supra, B312238.) Many of the 

cases that she filed against other former attorneys preserved the 

statute of limitations based on potential damages in the current 

matter. (Urick v. Elkins Kalt Weintraub Reuben Gartside, LLP,

supra, B310056.) Willis himself entered into a tolling agreement 

with Boykin to extend the statute of limitations for legal 

malpractice.

If the time and expense spent preparing for a trial were 

sufficient reason to deny a continuance, no trial would be 

continued based on the sudden illness or death of a party’s 

attorney. “The death or serious illness of a trial attorney or a 

party ‘should, under normal circumstances, be considered good 

cause for granting the continuance of a trial date[.]’ (Cal. Stds.

Jud. Admin., § 9.)” (Hernandez v. Superior Court (2004) 

115 Cal.App.4th 1242, 1247–1248.) The extraordinary 

circumstances of the COVID pandemic and the resulting 

complications required the court to provide greater 

accommodations to parties, not fewer, and was not an excuse to 

deprive a litigant of a fair hearing.

“We recognize, as did the courts in Bahl v. Bank of 

America, supra, 89 Cal.App.4th 389, Estate of Meeker (1993) 

13 Cal.App.4th 1099, Link v. Cater, supra, 60 Cal.App.4th 

1315, Wantuch v. Davis (1995) 32 Cal.App.4th 786, and most 

recently Hernandez[, supra,] 115 Cal.App.4th 1242, that trial 

courts are under great pressure to expedite their case loads to 

achieve judicial efficiency. ‘But efficiency is not an end in itself. 

Delay reduction and calendar management are required for a 

purpose: to promote the just resolution of cases on their merits.

(Thatcher v. Lucky Stores[, supra,] 79 Cal.App.4th 1081, 1085; 
47

Gov. Code, § 68507; Cal. Stds. Jud. Admin., § 2.) Accordingly, 

decisions about whether to grant a continuance or extend 

discovery “must be made in an atmosphere of substantial justice. 

When the two policies collide head-on, the strong public policy 

favoring disposition on the merits outweighs the competing policy 

favoring judicial efficiency.” (Bahl v. Bank of America[, supra,] 

89 Cal.App.4th 389, [at pp.] 398–399.) What is required is 

balance. “While it is true that a trial judge must have control of 

the courtroom and its calendar and must have discretion to deny 

a request for a continuance when there is no good cause for 

granting one, it is equally true that, absent [a lack of diligence or 

other abusive] circumstances which are not present in this case, a 

request for a continuance supported by a showing of good cause 

usually ought to be granted.” (Estate of Meeker, supra,

13 Cal.App.4th at p. 1105.)’ (Hernandez v. Superior Court,

supra, 115 Cal.App.4th at pp. 1246–1247.)” (Oliveros, supra, 120 

Cal.App.4th at p. 1396.)

Dana had not previously requested a continuance. We 

conclude the probate court abused its discretion under the 

circumstances of this case by denying Dana’s request for a 

continuance of a length necessary to accommodate her trial 

attorney’s sudden and serious medical emergency.

Prejudice

Willis contends that Dana must show she was prejudiced 

by the probate court’s denial of a continuance. Assuming, 

without deciding, that Dana must show prejudice, the evidence in 

the record demonstrates a reasonable probability that she would 
48

have achieved a more favorable result had she been granted a 

continuance.

A. No Contest Clauses Generally

A “no contest clause” is a provision that penalizes a 

beneficiary for filing a pleading. (Prob. Code, § 21310, subd. (c).)3 

“A no contest 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.’ ” (Betts v. City 

National Bank (2007) 156 Cal.App.4th 222, 231, fn. omitted.)

“Such clauses promote the public policies of honoring the 

intent of the donor and discouraging litigation by persons whose 

expectations are frustrated by the donative scheme of the 

instrument. [Citation.] [¶] In tension with these public policy 

interests are the policy interests of avoiding forfeitures and 

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

objection, answer, response, or claim.” (Prob. Code, § 21310, 

subd. (d).) 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).)
49

promoting full access of the courts to all relevant information 

concerning the validity 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 prohibited by some law or opposed to public policy.’ ”

(Donkin v. Donkin (2013) 58 Cal.4th 412, 422.)

Under current California 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).) A 

“ ‘[d]irect 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, subdivision (b)(4), including 

“[m]enace, duress, fraud, or undue influence.” “For the purposes 

of this section, 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 investigation or discovery.” (Id., § 21311, subd. (b).)

B. Filing by a Beneficiary

To be considered a contest, the pleading at issue must have 

been filed by a beneficiary. (Prob. Code, § 21310, subd. (a).) The

record in this case reflects that Dana intended to present 

evidence at trial which established she filed the reformation 

petition in her capacity as trustee and not as a beneficiary.

In connection with the anti-SLAPP proceedings, an

experienced and esteemed probate court judge considered the 
50

2016 petition to have been filed by Dana as trustee, but this

appellate court concluded that whether Dana had filed the

petition in her role as trustee or beneficiary or both was 

ambiguous from the face of the pleading. The body of the petition 

referred to “Petitioner, Dana Urick, Trustee of The Allyne L. 

Urick Trust,” without mentioning her status as a beneficiary, 

suggesting the petitioner was Dana in her capacity as trustee. 

The petition did not expressly state that Dana was filing the 

petition in her individual capacity as a beneficiary, but it was 

brought on behalf of an aggrieved party. Other aspects of the 

reformation petition were consistent with a pleading filed by 

Dana as a beneficiary, such as the attorney caption and the 

signature blocks which lists her name without referring to her 

position as trustee. In the context of an anti-SLAPP motion, the 

evidence was reasonably susceptible of Willis’s interpretation

that Dana filed the petition in her capacity as a beneficiary. 

At the trial on the no contest petition, Willis’s evidence that 

Dana filed the pleading as a beneficiary consisted solely of 

inferences from the ambiguous statements in the reformation 

petition. He did not introduce any extrinsic evidence to support

finding that Dana brought the petition as a beneficiary, such as 

other pleadings filed by Masteller on Dana’s behalf as a 

beneficiary, letters Masteller wrote on behalf of Dana as a 

beneficiary, or payments that Dana made personally for 

Masteller’s legal work.

The record shows Dana’s extrinsic evidence, however, if 

credited by the trier of fact, conclusively establishes Dana filed 

the petition solely in her capacity as trustee. Masteller declared 

that her law firm represented Dana in her capacity as trustee

only. The firm was not retained by, and never at any point 
51

represented, Dana in her individual capacity as a beneficiary. 

Dana was represented in her individual capacity as a beneficiary 

by independent counsel. 

Masteller explained the ambiguities in the 2016 petition. 

Her intent in drafting the first sentence of the petition was to 

define the petitioner as “Dana Urick, Trustee of the Allyne L. 

Urick Trust.” The petition never stated that it was brought by 

Dana as an individual. In the petition, Masteller referred to Civil 

Code section 3399 for the proposition that a written instrument 

may be reformed by an aggrieved party. In Masteller’s view, 

Allyne was the aggrieved party as a result of the incorrectly 

drafted trust, and Dana, as her successor trustee, brought the 

petition to reform the trust to reflect Allyne’s intent. She did not

identify Dana as trustee in the attorney caption and signature 

blocks, but the omissions were inadvertent, primarily because 

Masteller believed the statements in the body of the petition were 

controlling and sufficient to establish that the petitioner was 

Dana as trustee.

Dana represented in her offer of proof that Masteller would 

testify unequivocally at trial, as she had in deposition, that Dana 

filed the 2016 reformation petition in her capacity as trustee. We 

note that this testimony would be consistent with Masteller’s

October 2015 letter to Willis, before the reformation petition was 

filed, stating that she represented Dana as trustee of the trust, in 

which she copied Dana as trustee. If the trier of fact finds 

Masteller’s testimony credible, then Dana’s 2016 reformation 

petition could not have been filed in any capacity other than as 
52

trustee.4 Masteller could not have filed a petition on behalf of a 

client that she did not represent. 

Other evidence in the record supports finding that Dana 

did not file the pleading as a beneficiary. Dana represented she 

would testify that she intended and understood the reformation 

petition to be filed in her capacity as trustee. In the surcharge

trial, evidence showed the attorney fees paid in connection with 

the reformation petition were paid by the trust, not by Dana 

personally, which is further evidence that Dana filed the pleading 

in her capacity as trustee. The trier of fact may credit Masteller’s 

testimony, Dana’s testimony, or both, to find the 2016 

reformation petition was filed in Dana’s capacity as trustee and 

therefore was not a contest.

C. Statutory Grounds for a Direct Contest

Even if the trier of fact were to conclude that Dana filed the 

2016 reformation petition as a beneficiary, however, the record 

also contains evidence to support finding that the petition was 

brought solely on the ground of mistake, which is not a basis for a 

direct contest. 

The petition expressly stated that it was based on the 

ground of mistake, but mixed in allegations of misrepresentation 

and nondisclosure consistent with a claim of fraud. As a result, 

the grounds for the petition were ambiguous and reasonably 

susceptible to Willis’s interpretation in the anti-SLAPP 

4 In weighing Masteller’s credibility at trial, we note the 

statute of limitations has run on any legal malpractice action 

arising from Masteller’s drafting of the 2016 reformation petition. 

(Urick v. Lewitt, supra, B312238.) 
53

proceedings that the pleading was based on a claim of fraud. 

After this appellate court found Willis had made a prima facie 

showing that the petition was based on fraud, Dana filed 

amended reformation petitions which omitted the ambiguous 

allegations. Omission of the allegations did not substantially 

change the character of the petition, suggesting that the stray 

allegations of misrepresentation and nondisclosure were included 

for background context and were not a basis for the pleading. 

Testimony by Masteller and Dana, if credited by the trier of fact, 

would clarify that the petition was brought solely on the basis of 

mistake, not on the basis of fraud, duress, or undue influence.

D. Probable Cause

Even if Dana brought the petition as a beneficiary on 

grounds that included fraud, duress, or undue influence, there is 

a reasonable probability that she would have achieved a more 

favorable outcome on the issue of probable cause to bring the 

2016 reformation petition. Under Probate Code section 21311, 

probable cause existed if the facts known to Dana at the time 

that she filed her pleading would have caused a reasonable 

person to believe that there was a reasonable likelihood that the 

requested relief would be granted after further investigation or 

discovery.

In Willis’s brief on appeal, he concedes it is undisputed that 

Allyne’s restated trust did not qualify as a CRAT. In fact, Willis 

filed a competing petition to reform the trust as a CRAT, which 

the probate court granted. These circumstances support finding 

that a reasonable person in Dana’s place would believe the

restated trust failed to meet Allyne’s objectives and a petition to
54

reform the trust to accomplish Allyne’s intent would be granted. 

To establish probable cause for the reformation petition, Dana 

did not need to show that every line of the trust would be 

reformed exactly as she proposed. Multiple distribution schemes 

were possible to achieve Allyne’s stated intent, and under the 

statute, probable cause exists even though a beneficiary 

anticipates further investigation or discovery. The trier of fact 

could find Dana had probable cause to believe the probate court 

would reform the trust as she requested.

One of the primary reforms that Dana proposed was to 

eliminate the CRAT structure. It was undisputed that the 

restated trust, as drafted, did not qualify as a CRAT. A 

reasonable person could believe from the evidence that the 

probate court would reform the trust to eliminate the CRAT, 

because it was inappropriate for the trust’s assets and did not

achieve Allyne’s testamentary goals. Allyne consistently stated 

her testamentary goals were to provide an income to Dana for her 

lifetime and an income to Trentyn for a set number of years until 

he reached adulthood, while providing the smallest distribution

necessary to Willis to avoid a contest of her estate plan, and to 

realize any tax savings that could be achieved without interfering 

with her distribution goals.

Allyne’s primary asset was a lucrative income from an 

apartment building on real property that had been in the Urick 

family for nearly 100 years. Dana intended to offer expert 

testimony that a CRAT was unworkable for the type of assets in 

Allyne’s trust. Boykin stated that he expected the property 

would be liquidated and had not considered whether a CRAT was 

appropriate if the property were not liquidated. The evidence 

showed, however, that Allyne expected the trustee to retain the 
55

apartment building. In fact, the trust expressly gave Dana the 

power as trustee to retain the property and to continue to operate 

the business. In Allyne’s videotaped execution of the original 

trust, she wanted to extend the annuity payments to Trentyn 

because she thought if her assets remained as valuable as they 

had been, specifically referring to the apartment building, then 

Phillips Academy would end up getting several million dollars. 

This evidence showed that Allyne expected and intended the 

successor trustee to retain the apartment building in the trust, 

and if the character of that asset was incompatible with the 

requirements of a CRAT or destroyed the tax savings of a CRAT, 

as Dana intended to show at trial, then Allyne’s express desire 

was for the trustee to be able to retain the apartment building 

rather than be required to reform the document and liquidate the 

assets to take advantage of the tax savings of a CRAT.

There is also no evidence that Allyne wished to limit 

annuity payments to the beneficiaries to a maximum of 20 years. 

Allyne consistently told Boykin that she wanted her children to 

receive payments for their lifetimes, and she wanted Trentyn to 

receive a distribution directly from her in trust for a set period of 

years. In a letter, Boykin acknowledged the relatively young 

ages of her children. The original trust provided annuity 

payments would end at the death of the last living recipient or 

when Trentyn reached age 35. In the videotaped execution of the 

trust, Boykin described the term correctly once and incorrectly 

another time. It is not clear which distribution Allyne believed 

she had provided in her trust. The incorrect description, that 

payments would be made until her children passed away and 

Trentyn reached age 35, was more consistent with the 

distribution that Allyne requested. 
56

Boykin testified in his deposition that he drafted a 20-year 

CRAT, but the original trust does not limit the annuity payments 

to 20 years. If the payments in the original trust had been

limited to a maximum of 20 years and Allyne understood the 

payments were limited to 20 years, there was no reason to 

extensively discuss in the videotape and in subsequent letters 

whether payments should be made to Trentyn until age 45. 

Allyne would have needed to live to age 105 for Trentyn to receive 

payments until age 45. 

The restated trust obliquely altered the distribution term 

by limiting the annuity payments to the latest date allowed by 

the Internal Revenue Code. Allyne would not have been alerted 

merely by reading the provision that annuity payments were 

limited to a maximum of 20 years regardless of the other terms 

providing for payments for the lifetime of the recipients or until 

Trentyn reached age 35. Unlike the original version of the trust, 

Boykin did not correspond with Allyne to explain the changes to 

the trust or videotape Allyne’s execution of the restatement. 

Based on this evidence, a reasonable person could suspect Allyne 

was not informed or did not understand the limited number of 

years that the annuity would be paid in order for the trust to 

qualify as a CRAT, and that the provisions conflicted with 

Allyne’s stated intent to provide a lifetime income stream for her 

children and distributions for Trentyn, without regard to whether 

it qualified for beneficial tax treatment. 

It is true that under Probate Code section 21540, if a trust 

indicates the transferor’s intent to comply with the requirements 

for a CRAT, the provisions of the trust must be construed to 

comply with statutory provisions to conform to that intent. The 

restated trust in this case, however, could not simply be 
57

construed to comply with statutory provisions and had to be 

conformed to qualify. Also under Probate Code section 21540, in

no event may the fiduciary take an action or have a power that 

impairs the charitable deduction. This is not a case, however, 

where the trustee has taken an action that will disqualify a 

charitable deduction that the trust is otherwise qualified to 

receive. In this case, the parties agree that the trust did not 

qualify as a CRAT, and therefore, it was not entitled to a 

charitable deduction as drafted. Similarly, the provisions of the 

trust that required the trustee to take actions consistent with 

ensuring qualification of the trust as a CRAT did not apply if the 

trust had been previously determined not to qualify as a CRAT,

which the parties agreed it did not.

Dana’s proposed reformation eliminated any distribution to 

Willis. Dana believed Allyne had chosen to disinherit Willis 

based on Allyne’s complaints about perceived slights and 

statements that Willis would receive nothing from her estate. 

The distributions to Willis in the estate plans that Eick drafted 

were carefully crafted to provide the minimum amount necessary

to dissuade Willis from contesting the estate plan, or 

alternatively provided him nothing at all. Even after Allyne 

executed the original trust prepared by Boykin providing Dana 

and Willis with equal shares, she promptly signed multiple 

amendments disinheriting Willis. Boykin stated that Allyne 

revoked the amendment that he prepared by writing the word 

revoked and tearing it up in front of him, but she kept a 

handwritten version disinheriting Willis at her home without 

taking the same steps to revoke it. 

There was no explanatory correspondence exchanged prior 

to Allyne’s restatement of the trust or videography of Allyne’s 
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execution of the restated trust, and the provisions added to the 

restated trust primarily related to the CRAT. A reasonable 

person in Dana’s position, knowing her mother said she had 

disinherited Willis, could suspect the trust was restated to 

include several boilerplate provisions necessary to qualify the 

trust as a CRAT, but copied the distribution in the original trust 

through oversight or mistake. Boykin’s explanation that Allyne 

chose to provide equal shares for Willis and Dana in the restated 

trust simply because Willis would have fought about any other 

distribution was not consistent with Allyne’s previous statements 

to Dana, her statements to her prior estate planning attorney, or 

her conduct. Common estate planning techniques existed to 

provide a distribution to Willis that was less than the amount 

provided to Dana, yet substantial enough to discourage him from 

litigation. A reasonable person with the information that Dana 

had in 2016 could believe that further investigation and discovery 

would support that Allyne did not intend to provide equal shares 

of her estate to her children, and the drafter of the trust had 

provided them with equal shares by mistake. In the event that 

further investigation and discovery affirmed Allyne’s intent to 

treat her children equally, the reformation petition could easily 

have been amended by the probate court to insert Willis’s name 

as a coequal beneficiary to Dana, and granted as amended.

Similarly, Dana’s proposed reformation significantly

limited the likelihood that Phillips Academy would receive a

distribution. Dana’s evidence suggested her mother selected 

Phillips Academy as a remainder beneficiary simply for the 

unlikely event that there were assets left in her estate after the 

distributions provided. Boykin provided calculations to Allyne

that showed all of her assets would be distributed through 
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annuity payments to the beneficiaries, such that the remainder 

received by Phillips Academy would be zero. Allyne executed her 

original trust on the basis of these calculations, with the 

understanding and agreement that the trust likely would not 

qualify for favorable tax treatment as a result. When Boykin 

estimated that Phillips Academy might receive as much as 

$3,000,000 to $10,000,000, Allyne decided to sign the document, 

but continue to consider the remainder to Phillips Academy. 

Dana’s proposed reformation could easily have been amended to 

provide a remainder amount to Phillips Academy approximating 

the amount that Allyne expected the school would receive under 

the trust that she signed.

In short, the parties agreed the trust did not qualify as a 

CRAT. Both parties filed reformation petitions. Willis’s 

arguments for reforming the trust to qualify as a CRAT were 

primarily based on boilerplate trust provisions and statutory law. 

His petition flipped Allyne’s distribution goals on their head to 

make tax savings from the charitable remainder the primary goal 

of the plan, with the distributions to named beneficiaries 

subservient to qualification of the trust as a CRAT. Dana had as 

much evidence of Allyne’s testamentary intent, or more, to 

support her effort to reform the petition when she filed it in 2016.

If Dana had been able to present her evidence at trial, there is a 

reasonable probability that the trier of fact would have concluded 

Dana had probable cause to file her 2016 reformation petition 

based on the facts known to her at the time. 
60

E. Removal and Surcharge

The order granting Dana’s removal and surcharging her for 

various costs was based in substantial part on the probate court’s 

order granting the no contest petition. Both orders must be 

reversed and remanded for further proceedings.

DISPOSITION

The order granting the petition for instructions as to 

violation of the no contest clause and the order granting the 

petition for removal and surcharge are reversed. The cause is 

remanded for a new trial. The reversal of the petition for 

removal does not impact the probate court’s January 23, 2020, 

orders suspending Dana as trustee and appointing interim 

successor trustees, which orders remain in effect. Appellant 

Dana Urick is awarded her costs on appeal.

NOT TO BE PUBLISHED.

MOOR, J.

We concur:

BAKER, Acting P. J.

KIM, J.