Filed 12/29/14 Crowe v. Tweten CA4/2


                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



NANCY CROWE et al.,

      Plaintiffs, Cross-defendants and                                   E056920
Appellants,
                                                                         (Super.Ct.No. INP10000515)
v.
                                                                         OPINION
LEONARD M. TWETEN,

      Objector, Cross-complainant and
Respondent.



         APPEAL from the Superior Court of Riverside County. James A. Cox, Judge.

Affirmed.

         Smyth & Mason, Jeffrey A. Smyth; Loeb & Loeb and Adam F. Streisand for

Plaintiffs, Cross-defendants and Appellants.

         Greines, Martin, Stein & Richland, Robin Meadow, Cynthia E. Tobisman and

Jeffrey E. Raskin; Bingham McCutchen, Marshall B. Grossman and Karen Ho;




                                                             1
Ervin Cohen & Jessup, Rodney C. Lee and Jeffrey A. Merriam-Rehwald for Objector,

Cross-complainant and Respondent.

       Plaintiffs, cross-defendants and appellants Nancy Crowe and Janet Houston,

beneficiaries of a trust created in 2008 by their parents, Leonard M. and Eileen Tweten,

appeal from a judgment reforming that trust. They contend the trial court erred in

reforming and/or modifying the trust to include language requiring the federal estate tax

exemption for 2009 apply in the event that either of the Twetens died in 2010. We reject

their contentions and affirm.

                   I. PROCEDURAL BACKGROUND AND FACTS

       Objector, cross-complainant and respondent, Leonard M. Tweten, and his wife,

Eileen, had four children: Jim, Scott, Nancy and Janet.1 Originally the Twetens lived in

Seattle, where they built and managed a chain of audio/video stores that employed each

of their children. In 2002, they sold the business to Best Buy for approximately $90

million. Prior to and after the sale of the business, the Twetens were generous to their

children and grandchildren; they bought homes, paid for schools and cars, paid bills and

provided other gifts. Each family member was a stockholder in the business, and

plaintiffs each received $6 million from its sale. After selling the business, the Twetens

moved to Palm Desert.

       Since 1991, the Twetens had a single estate planning priority, i.e., they

consistently structured their estate so that the surviving spouse would inherit the deceased

       1  Because of the family relationship of the parties, we adopt their practice and
refer to the Tweten family by their first names. No disrespect is intended.

                                             2
spouse’s share, and the children would inherit the bulk of the estate upon the death of the

surviving spouse. In 1991, the reciprocal wills of the Twetens stated their “primary

purpose” was to provide for the surviving spouse: “The primary purpose and intent in

creating this Trust [created by wills] is to provide a flexible plan for the financial security

of my spouse and to enable my spouse to continue, within the limitations of the funds

available, the standard of living to which my spouse has become accustomed. The rights

and interests of beneficiaries and/or remaindermen to residual or remainder interests are

subordinate and incidental to that purpose. The provisions of this Trust shall be liberally

construed in the interest and for the benefit of my spouse.”

       In 2007 and 2008, the Twetens, with the assistance of their financial advisors, the

McCutchen Group,2 and estate planning attorney Joseph Hahn of Best, Best, & Krieger,

discussed their estate plan, which led to the creation of their “2008 LET Revocable

Trust” (Trust). From September 20, 2007, through January 2008, the Twetens met

several times with Matthew McCutchen, Marty Nelson, and/or Joseph Hahn. At each

meeting, they made clear that “when the first spouse died they wanted to have all of the

assets available to the surviving spouse.” They never said they wanted the maximum tax-

free amount to go to the children at the first spouse’s death. The only issue on which the

Twetens differed was how their separate shares would be distributed upon both of their

deaths. Leonard wanted a portion of his share to go to a charitable foundation and the

balance to go to the children in trust with limited annual payments. Eileen wanted her

       2Matthew McCutchen and Marty Nelson of the McCutchen Group assisted the
Twetens with their financial and estate planning.

                                               3
share to go to the children directly and nothing to charity.3 McCutchen suggested a

“token gift” to the children when the first spouse died, to signify “love and appreciation,”

and to let the children know they “‘are going to have to wait until the second spouse

dies’” to inherit the balance of the estate.” The Twetens liked this idea.

       In subsequent meetings, the Twetens consistently reaffirmed their intention that

the surviving spouse would inherit from the first spouse to die, no part of the deceased

spouse’s share would go outright to the children other than a “token” gift free of estate

tax, and at the death of the surviving spouse, the children would inherit in trust (as to

most of Leonard’s share) and outright (as to Eileen’s share). The couple signed a

“placeholder trust” so that they could “begin funding the trust prior to the operative

document being finalized,” and Hahn set about drafting their detailed plan. The

placeholder trust stated that the Twetens were the “primary beneficiaries” and that so

long as one of them lived, “the survivor of us will have the exclusive right to the use and

benefit of the income and the assets of this trust.”

       In January 2008, the McCutchen Group reconfirmed the estate planning intentions

of the Twetens by sending them an email with questions about their wishes. Leonard

handwrote the answers of the Twetens on a printout of the email, and then the

McCutchen Group forwarded that marked-up email to Hahn. The email stated: “The

Marital Trust will hold the majority of assets from the first estate.” It also stated that

upon the death of the surviving spouse, the Tweten trust would create a trust for Scott in

       3   While the Twetens did not agree on the final distribution of their assets, neither
tried to influence the other to change his or her position.

                                               4
the amount of $4 million, with $10,000 monthly payments. Because Scott had a

substance abuse problem and did not handle his financial affairs well, the Twetens

wanted to construct a plan that would provide for him but at the same time prevent him

from ever receiving a large amount of money outright. The Twetens did not want Scott

to receive the same full outright share as the other children at any point in time because

“they both felt that giving him additional money due to his health issues would go ahead

and just basically potentially kill him.”4

       Hahn drafted the Trust consistent with the wishes of the Twetens. In addition to

preparing the Trust, Hahn created two diagrams to show the Twetens “how the trust

would operate in graphical terms, rather than just putting the trust document in front of

them and expecting them to be able to digest the technical, legal language of it.” (See

Exhibit No. 1 (diagrams) attached to this opinion.) According to the diagrams, at the

death of the first spouse, the Tweten estate would be split in half (two estimated $50

million community property shares); a small amount from the deceased spouse’s share

(shown on the diagram as $1 million) would be divided equally among the four children

via a “family trust” and would be distributed to them immediately. If Eileen died first, a

small amount would be divided equally among the four children and the remainder of her

share ($49 million) would be held in a “marital trust” for Leonard’s benefit; if Leonard

died first, a small amount would be divided equally among the four children, then $5

million would go to a foundation, and the remainder of his share ($44 million) would be


       4   Scott suffered from alcoholism, which caused his death in 2010.

                                             5
held in a marital trust for Eileen’s benefit. The surviving spouse would receive the

income from the marital trust and also would have access to the principal for specified

purposes. Only at the death of the surviving spouse would the estate be distributed to the

children. And even after the death of the surviving spouse, Leonard’s share would pass

to the children in trust. Under no circumstances would Scott inherit his share of the trust

outright.

       In discussing the formula clause, which would be used to determine the amount

that would go into the family trust, with the remainder going into the marital trust, Hahn

told the Twetens about the Federal Estate Tax (FET) exemption amount in 2008 ($2

million) and what it was scheduled to be in 2009 ($3.5 million). They also discussed the

possibility that it would be $1 million in 2011. While Hahn knew the FET was slated to

expire in 2010 (i.e, the FET exemption amount would be 100 percent), he did not believe

he told the Twetens what would happen with respect to the marital trust if there was no

FET. Basically, with no FET, the entire estate of the deceased spouse would be paid to

the four children outright via the family trust and the surviving spouse would be

disinherited from half of the joint wealth. In discussing the applicable FET exemption

for 2010, Hahn told the Twetens, “if we got to a situation in 2010 where Congress had

failed to act [then we would] need to revisit the situation.” Hahn opined that the Twetens

never understood the ramifications of the potential absence of an FET in 2010; however,

he believed they understood the need to amend the Trust in the event of no FET.

       Hahn did not draft the Trust to accommodate the unlikely possibility that Congress

would fail to enact an FET for 2010, because he assumed that Congress would enact an

                                             6
FET for 2010. He thought the chance of there being no FET in 2010 was “so remote that

it was almost inconceivable.” Hahn was not the only one to think this way. Additionally,

the computer program he used, “Pro doc,” did not contain a “savings clause” option;

rather, Pro doc added it in 2009. The absence of an FET in 2010 resulted in the formula

clause in the Trust operating inconsistently with the intent of the Twetens. Contrary to

their wishes, in 2010 alone, the formula clause “would have disinherited the surviving

spouse of half the marital trust assets . . . distributed a huge amount of money to Scott

outright,” and would have “distribute[d] the money to the four children without trust

provisions.” Had Hahn known that Congress was too dysfunctional to enact an FET for

2010, he would have acted differently.

       In early April 2010, Leonard informed McCutchen that Scott had passed away and

that Eileen had been discharged from the hospital on hospice care. McCutchen expressed

his concern that the Tweten assets could be distributed in a manner contrary to their

wishes. In reviewing the Trust, McCutchen determined it should be amended to ensure

that it effectuated the consistent intent of the Twetens to leave only a token amount to the

children upon the death of the first spouse, and the bulk of the deceased spouse’s share to

a marital trust for the surviving spouse’s benefit. McCutchen called Hahn; however, he

was unable to reach Hahn because Hahn was on vacation. Instead, McCutchen was put

in contact with another attorney at Best, Best & Krieger, David Erwin. About the same

time, on April 14, 2010, Leonard emailed McCutchen to confirm that when Eileen passed

away her estate would go directly to him first, and then when he died, the children would



                                              7
receive the estate. McCutchen responded via email that the McCutchen Group would call

Leonard in 30 to 45 minutes.

       On April 14, 2010, McCutchen and Erwin went to the Tweten home in Palm

Desert. Leonard, McCutchen and Erwin discussed the current state of the FET and the

purpose of the amendment Erwin had prepared (Amendment). Erwin explained that the

Amendment ensured that Eileen’s wishes were carried out by directing everyone to

“[r]ead the trust as if this was a 2009 trust so that it wasn’t 2010 with no [FET].” The

Amendment provides in part: “This Trust during the year 2010 in the event of death of

one of Grantors is amended throughout to provide distribution, administration and

allocation based upon the Federal Estate and Generation-Skipping Transfer tax law as the

same existed and would have been applicable to estate of decedents dying during the year

2009.”5 Leonard acknowledged that he understood the Amendment and signed it.

       When Eileen’s caregiver told the men that Eileen could see them, they went into

her bedroom, where they found her awake and alert. Erwin described the Amendment to

Eileen, explaining that it was intended to carry out her intent under the Trust. Leonard

also told Eileen that the Amendment was to carry out their estate planning intent. Eileen

said she understood and signed the Amendment. However, neither Leonard’s nor

Eileen’s signature was notarized. Eileen died on April 26, 2010.6


       5 Hahn opined that the Amendment was consistent with the Tweten estate
planning intentions.

       6 Leonard testified that in April 2010, he lost a son, a brother, his wife, and “two
beloved dogs.”

                                             8
       On September 10, 2010, plaintiffs filed a petition to invalidate the Amendment on

multiple grounds, including fraud, undue influence, forgery, lack of capacity, and

invalidity, because the signatures were not notarized. Challenging the validity of the

Amendment, plaintiffs claimed that because there was no FET in 2010, the “entire

Deceased Grantor’s Share” must pass to them outright. Jim did not join his sisters’

petition.

       Leonard also petitioned the court, requesting that if the Amendment is found not to

comply with the Trust’s terms, that the court excuse the noncompliance with the

notarization requirements or, in the alternative, “modify the provisions of the Trust to

provide that Eileen’s share of the Trust be divided following her death so that the Family

Trust be funded with $2,500,000 and the residue of Eileen’s property be funded into the

Marital Trust.” Leonard requested that the Trust be reformed.

       Pursuant to the parties’ stipulation, the two petitions were tried together.

Following a bench trial, the court issued a detailed tentative decision wherein it found in

favor of Leonard and against plaintiffs. The trial court observed “the evidence is most

convincing that the trust failed to comply with the settlor’s intended distributions upon

the death of either settlor if such death happened to occur in the year 2010.” Because the

Trust required that any amendment be executed by both Twetens and that their signatures

be notarized, the court concluded that current case law barred it from enforcing the

Amendment. (King v. Lynch (2012) 204 Cal.App.4th 1186, 1193.) However, using its

equitable power, the court reformed and, alternatively, modified the Trust to give effect

to the consistent intent of the Twetens “that the trust provide a marital trust for the use of

                                              9
the survivor.” The court stated: “Whether by modification or reformation, the trust is

ordered modified/reformed by the addition of language as specified in the Amendment to

Declaration of Trust (determined to be invalid by failure of notarization) which was

executed by the Settlors on April 14, 2010. The court finds that such language, approved

and adopted by the Settlors themselves, constitutes and implements their true intent.”

Judgment was entered on August 7, 2012.

                                     II. DISCUSSION

       Plaintiffs agree the trial court correctly concluded the Amendment was invalid and

ineffective in amending the Trust because the signatures of the Twetens were not

notarized pursuant to the Trust’s requirement. (King v. Lynch, supra, 204 Cal.App.4th at

p. 1193.) However, plaintiffs contend the trial court erred in reforming and modifying

the Trust to add the language in the Amendment.

       A. California Courts Can Reform a Trust to Correct a Drafting Error

       “Civil Code section 3399 recognizes the equitable common law power of a trial

court to reform a trust agreement based on mistake, but not to create a new trust

agreement under the theory of reformation. [Citation.]” (Ike v. Doolittle (1998) 61

Cal.App.4th 51, 85 (Ike).) Civil Code section 3399 provides: “When, through fraud or a

mutual mistake of the parties, or a mistake of one party, which the other at the time knew

or suspected, a written contract does not truly express the intention of the parties, it may

be revised on the application of a party aggrieved, so as to express that intention, so far as

it can be done without prejudice to rights acquired by third persons, in good faith, and for

value.” Thus, “[a] reformation action lies when a written instrument does not accurately

                                             10
reflect the oral understanding which gave rise to it. [Citation.]” (Getty v. Getty (1986)

187 Cal.App.3d 1159, 1178.) “The sole purpose of the reformation doctrine is to correct

a written instrument in order to effectuate a common intention of the parties which was

incorrectly reduced to writing. [Citation.]” (Ibid.) A trust agreement may be reformed

upon clear and convincing evidence that the agreement fails to express the intent of the

parties because of a mistake as to the contents or effect of its writing. (Dictor v. David &

Simon, Inc. (2003) 106 Cal.App.4th 238, 253.)

       In 1986, the Legislature revised the Probate Code and “codified the common law

equitable power of trial courts to modify the terms of a trust instrument where such

modification is necessary to serve the original intentions of the trustors. [Citation.]”

(Ike, supra, 61 Cal.App.4th at p. 83.) However, the sections enacted do not provide the

exclusive means to do so. Rather, “the broader equitable power of trial courts to modify

or reform a trust is preserved by operation of [Probate Code] section 15002, which

expressly provides: ‘Except to the extent that the common law rules governing trusts are

modified by statute, the common law as to trusts is the law of this state.’” (Ike, supra, at

p. 84.) In Ike, the appellate court concluded that a trial court has “equitable power,

founded in common law . . . to modify [a] Trust provided (1) a ‘peculiar’ or ‘exceptional’

circumstance [makes] modification necessary to accomplish the purpose of the trustors,

and (2) there [is] some expression in the trust instrument of the purpose of the

trustors. . . . [A] drafting error in a trust instrument which renders ambiguous an

expression contained therein regarding the administrative or distributive intentions of the

trustor(s) constitutes a ‘peculiar’ or ‘exceptional’ circumstance . . . which may justify an

                                             11
equitable modification of a trust instrument to accomplish the purpose of the trustor(s).”

(Id. at p. 83; see also Giammarrusco v. Simon (2009) 171 Cal.App.4th 1586, 1603 [“‘If,

due to a mistake, the trust does not contain the terms that were intended by the settlor, the

settlor or other interested party may maintain a suit in equity to have the instrument

reformed so that it will contain the terms that were actually agreed upon or that reflect the

testator’s actual intent. The more common type of . . . error, which may be made by the

settlor or the scrivener, is a drafting error that is referred to as a mistake in

expression.’”].)

       B. Standard of Review

       “[E]xtrinsic evidence as to the circumstances under which a written instrument

was made is ‘“admissible to interpret the instrument, but not to give it a meaning to

which it is not reasonably susceptible” [citation], and it is the instrument itself that must

be given effect. [Citations.]’ [Citation.] . . . [A]n ambiguity is said to exist when, in the

light of the circumstances surrounding the execution of an instrument, ‘the written

language is fairly susceptible of two or more constructions.’ [Citations.]” (In re Estate

of Russell (1968) 69 Cal.2d 200, 211, fn. omitted; see also Ike, supra, 61 Cal.App.4th at

pp. 73-74.) “On appellate review, the trial court’s threshold determination of ambiguity

is a question of law [citation] and is thus subject to our independent review [citation].”

(Appleton v. Waessil (1994) 27 Cal.App.4th 551, 554-555; see also Ike, supra, at pp. 74-

75.)




                                               12
       C. Analysis

       “Where a trust instrument contains some expression of the trustor’s intention, but

as a result of a drafting error that expression is made ambiguous, a trial court may admit

and consider extrinsic evidence, including the drafter’s testimony, to resolve the

ambiguity and give effect to the trustor’s intention as expressed in the trust instrument.”

(Ike, supra, 61 Cal.App.4th at p. 74; see also Giammarrusco v. Simon, supra, 171

Cal.App.4th at p. 1605; Prob. Code, § 21102.)

       Here, the Twetens created the Trust in 2008. The language at issue is located

under article II, section G, entitled “INITIAL REVOCABLE TRUST.” Section G

provides in part: “Distribution Upon Termination. Following the death of the deceased

Grantor . . . the Trustee shall divide the deceased Grantor’s share into two shares, with

one share known as the ‘Marital Trust Share’ and the other share known as the ‘Family

Trust Share.’ The Marital Trust Share shall consist of a fractional share of the residue of

the deceased Grantor’s estate with (1) the numerator of such fraction equaling the

maximum Federal estate tax marital deduction allowable to the deceased Grantor’s estate

diminished by the value for Federal estate tax purposes of all other items in the deceased

Grantor’s gross estate which qualify for the marital deduction and which pass or have

passed to the surviving Grantor under other provision of this Declaration of Trust or

otherwise; provided, however, such amount shall be reduced by an amount, if any,

needed to increase the deceased Grantor’s taxable estate to the largest amount which,

after taking into account all other deductions allowed to the deceased Grantor’s estate for

Federal tax purposes and all allowable credits, will result in the least amount of Federal

                                             13
estate tax being imposed on the deceased Grantor’s estate; and (2) the denominator of

such fraction equaling the value of the deceased Grantor’s share. . . .”

       According to the above language, at the death of the first spouse, the Tweten estate

would be split in half; a small amount (equal to the value of the FET exemption) from the

deceased spouse’s share would be divided equally among the children via a family trust

and would be distributed to them immediately; if Eileen died first, a small amount ($2

million in 2008 and $3.5 million in 2009) would be divided between the four children and

the remainder of her share would be held in a marital trust for Leonard’s benefit; if

Leonard died first, a small amount ($2 million in 2008 and $3.5 million in 2009) would

be divided between the four children, $5 million would go to a foundation, and the

remainder of his share would be held in a marital trust for Eileen’s benefit. Upon the

surviving spouse’s death, the assets of the Trust would be distributed to the children.

(Exhibit No. 1.)

       Viewed in isolation from the other Trust provisions, article II, section G is not

patently ambiguous. However, article II, section G cannot be viewed in isolation from

other trust provisions. “All parts of an instrument are to be construed in relation to each

other and so as, if possible, to form a consistent whole. If the meaning of any part of an

instrument is ambiguous or doubtful, it may be explained by any reference to or recital of

that part in another part of the instrument.” (Prob. Code, § 21121; see also Ike, supra, 61

Cal.App.4th at p. 73 [“‘In construing a trust instrument, the intent of the trustor prevails

and it must be ascertained from the whole of the trust instrument, not just separate parts

of it’”].) Viewing the Trust as a whole, along with the absence of an FET in 2010, the

                                             14
language in article II, section G, presents a mistake because in the year 2010, none of the

deceased spouse’s share would go into the marital trust in contradiction of the intent of

the Twetens.

       In drafting the Trust, both the Twetens and their counsel anticipated the existence

of an FET exemption, because the formula for calculating how much would go into the

family trust, which the children would receive directly upon the death of the first spouse,

was based on the FET exemption. They further anticipated the majority of the deceased

spouse’s share would go into a marital trust to provide for the surviving spouse until his

or her death. A disconnect between the language of the Trust and the intent of the

Twetens arose only in 2010 when there was no FET. In the absence of an FET, the entire

share of the deceased spouse would go into the family trust for immediate distribution to

the children, leaving nothing to be deposited in the marital trust. However, such

distribution contradicts other portions of the Trust. For example, there was no provision

in the Trust that would allow one of the Tweten children, Scott, to inherit a large, lump

sum of money. Rather, language in the Trust created a trust that would provide monthly

income to Scott, ensuring that he never received a large, lump sum of money from

Eileen’s share. Contrary to this language, the absence of an FET in 2010 would have

resulted in Scott receiving a large, lump sum of money upon the death of the first spouse.

Such distribution was against the wishes of the Twetens, who feared that if Scott

possessed such a large sum of money, it would result in his death because of his

addictions. Also, the Trust anticipated the majority of the deceased spouse’s share going

into a marital trust; otherwise, article VI is superfluous. Thus, during the year 2010, the

                                             15
language in the Trust concerning distribution of the deceased spouse’s share was

internally contradictory, and contrary to the intent of the Twetens.

       In order to resolve this problem, the trial court considered the Tweten will, which

was created in 1991, along with the testimonies of Leonard, the attorneys, and financial

advisors responsible for drafting the Trust. This extrinsic evidence provided clear and

unambiguous evidence of the intent of the Twetens. According to both McCutchen and

Hahn, it was consistent with the wishes of the Twetens that “when the first spouse died

they wanted to have all of the assets available to the surviving spouse.” Hahn was aware

of the absence of an FET for 2010, but failed to fully explain to the Twetens what such

absence meant because he thought the chance of there being no FET in 2010 was “so

remote that it was almost inconceivable.” While Hahn informed the Twetens they may

need to revisit the Trust in the future, he did not explain why. He further testified that the

computer program he used, Pro doc, did not contain a “savings clause” option in the

event of no FET; rather, Pro doc added it in 2009. Hahn’s testimony alone establishes

drafting errors that resulted in the Trust not accomplishing what the Twetens intended.

(Ike, supra, 61 Cal.App.4th at pp. 67-68.) Nonetheless, further evidence of the intent of

the Twetens was presented through their 1991 will, the Amendment, Leonard’s

testimony, and the testimonies of the financial planners for the Twetens, all affirming the

desire of the Twetens to have all of their assets available to the surviving spouse.

       Accordingly, exercising our independent review, we conclude that the Trust

suffers from a drafting error that failed to account for the absence of an FET in 2010 and

therefore failed to express the intent of the Twetens accurately. Extrinsic evidence

                                             16
established their intent to have all of their assets available to the surviving spouse on the

death of the first spouse. Because of the absence of an FET in 2010, the Trust failed to

carry out the wishes of the Twetens in that year only. Under these circumstances, the

trial court correctly reformed the Trust to include the language in the Amendment.7

                                       III. DISPOSITION

       The judgment is affirmed. Respondent shall recover his costs on appeal.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                                 HOLLENHORST
                                                                                           J.
We concur:


       RAMIREZ
                               P.J.

       MILLER
                                  J.




       7  Assuming we would agree that the trial court erred in reforming the Trust,
plaintiffs contend that the court also erred in modifying the Trust. However, having
concluded the court correctly reformed the Trust, we need not reach this contention.

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