Filed 2/26/16 Weidner v. Eads CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

CHRISTINE CAIN WEIDNER,                                              H040950
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. 1-13-PR-172302)

         v.

BARBARA EADS,

         Defendant and Appellant.


         Edward M. Cain (Cain) executed a trust instrument creating the “Cain Family
Trust” (Trust) on September 6, 2000. The instrument identified “Christine M. Cain”1 as
his child. Cain was both the settlor, sometimes referred to as the trustor (Rest.3d Trusts,
§ 3, & com. a, p. 36), and the original trustee of the Trust. Cain died on January 8, 2013.
         After Cain’s death, his daughter Christine Cain Weidner (petitioner), a named
successor trustee and beneficiary of the Trust, filed a petition pursuant to Probate Code
section 172002 that sought judicial interpretation of the terms of the trust instrument and
instructions. Handwritten, penciled-in notations had been added to the original trust



         1
          A handwritten “/Weidner” was inserted immediately after “Christine M. Cain”
on the original trust instrument.
        2
          All further statutory references are to the Probate Code unless otherwise
specified. Section 17200 provides in part: “(b) Proceedings concerning the internal
affairs of a trust include, but are not limited to, proceedings for any of the following
purposes: [¶] (1) Determining questions of construction of a trust instrument. . . .
[¶] (3) Determining the validity of a trust provision. . . . [¶] (6) Instructing the trustee.”
instrument but none were dated, initialed, signed, or notarized. Barbara Eads filed an
objection and opposition to the petition.
       Subsequent to a multi-day hearing, the probate court determined, among other
things, that Cain’s intention to revoke the paragraphs providing for distributions to
Larry Smith3 and Eads was clear and that Eads should not serve as a co-trustee.
       On February 7, 2014, the probate court issued its formal order specifying in part
that petitioner was the sole successor trustee of the Trust4 and Cain had “revoked” the
distributions to Eads and Larry. The order confirmed that certain assets were assets of
the Trust.
       On appeal, Eads asks this court to reverse and remand the case with instructions to
give legal effect to the trust instrument as originally written. She asserts that the probate
court erred by (1) disregarding the absence of any extrinsic evidence of the circumstances
surrounding the handwritten notations and interlineations on the original trust instrument,
(2) concluding that the word “eliminate” handwritten in the margin of the trust
instrument, next to the paragraphs providing for distributions to Larry and to her,
constituted effective partial revocations of the Trust rather than failed attempts to amend
the Trust, and (3) not reading the handwritten notations as a whole.
       We find the claims of error to be without merit and affirm.
                                               I
                                            Evidence
       Petitioner, Cain’s only child, had a close but volatile relationship with him.



       3
         Larry was Cain’s younger half-brother and one of three half-siblings. We refer
to him by his first name because the surname of another half-sibling mentioned in this
opinion is also Smith.
       4
         On appeal, Eads does not challenge the lower court’s implied determination that
she was not a successor joint trustee with petitioner.


                                               2
       Petitioner’s mother was Cain’s second wife, and they were married for “20-some
years.” After their marriage ended, Cain never remarried.
       Petitioner married David Weidner (Weidner) in 1997 or 1998. Before moving to
California in 2012, petitioner and her husband lived in New Jersey and then New York.
They had three daughters, who, at the time of the hearing on the petition in 2013, ranged
in age from five years old to 10 years old.
       Although Cain lived in Los Gatos, California, Weidner and Cain were fairly close
from the beginning. They spoke at least monthly. They had common interests in
financial matters and baseball. Cain talked with him about broad investment strategies
and Cain’s specific investments. Subsequently, in 2009, Weidner became a financial
columnist for the Wall Street Journal.
       During the 15 years prior to his death, Cain regularly spoke with petitioner about
his assets and holdings. While petitioner was still living in New York, he sent documents
for her to sign and return so that she could be a signatory on his Fidelity accounts.
       Over the years, Cain had mentioned a number of his female companions to
petitioner. Those included Eads, Pamela Davoren, Linda Ketenjian, and Carol Anderson.
       Eads indicated that she had a 25-year relationship with Cain. In 1995, Cain
purchased two cemetery plots in the Pacific Grove cemetery and, according to Eads, one
of those plots was intended for her. Eads stated that Cain and she spent most weekends
together, mostly at her house in Pacific Grove. At times, they spent several days together
visiting the home of her sister, son, or daughter.
       Davoren indicated that she met Cain when she was working as a contractor at
NASA’s Ames Research Center; they began dating in 1993. Cain worked for NASA as
an engineer at Ames Research Center. They had a very close and intimate relationship
from 1995 to 2000. Davoren lived with her twin sister, Trisha, in Los Gatos. According
to Davoren, from 2000 to 2005, Cain and she were still close and they were intimate at
times; they saw each other at least three times a week. Between 2005, the year when

                                              3
Cain retired, and 2009, Cain and Davoren continued to see each other about three times a
week. Cain frequently spent weekends away in Monterey.
       Cain executed his Trust and his “Last Will and Testament” (Will) on September 6,
2000. On the same date, Cain also executed a document transferring certain assets to the
Trust. Petitioner became aware of the Trust in 2000.
       The trust instrument executed by Cain established an education fund for his
grandchildren, great-grandchildren, and “successor great grandchildren.” It provided in
pertinent part: “All Estate Trust funds shall be held in trust for an annual calculation on
December 31st to determine the calculated value of the Trust Estate and related
distributions to beneficiaries as follows:
       “One percent (1%) of the calculated value of the Trust Estate shall be distributed
in one payment to the Education Fund as described above.
       “The following distributions shall be made to the named beneficiaries, or as
applicable to said beneficiary’s issue, when said beneficiary reaches age fifty (50) years
or is certified by two (2) physicians as being incapacitated, either mentally or physically,
which would restrict said beneficiary’s earning potential:
       “Five percent (5%) of the calculated value of the Trust Estate shall be divided by
Twelve (12) to determine the amount of the 12 equal monthly distributions to
CHRISTINE M. CAIN, free of trust.
       “Two and one-half percent (2.5%) of the calculated value of the Trust Estate shall
be divided by Twelve (12) to determine the amount of the 12 equal monthly distributions
to BARBARA EADS, free of trust.
       “One and one quarter percent (1.25 %) of the calculated value of the Trust Estate
shall be divided by Twelve (12) to determine the amount of the 12 equal monthly
distributions to LARRY SMITH, free of trust.”
       The trust instrument reserved to the settlor the powers of revocation and
amendment of the Trust. It stated as to amendment: “The TRUSTOR, EDWARD

                                              4
M. CAIN, while living and competent, shall have the absolute power to alter or amend
this trust in whole or in part at any time by written instrument signed and delivered to the
trustee.” It provided as to revocation: “The TRUSTOR, while living and competent,
shall have the absolute power to revoke this trust in whole or in part and restore to the
TRUSTOR the respective rights of testamentary disposition by written instrument filed
with the trustee. The TRUSTOR shall have the right to add property to the trust at any
time and may at any time withdraw or remove property from the trust.” The trust
instrument specified in pertinent part that, “[a]fter the death of TRUSTOR, the trust
established by this declaration may not be revoked or amended . . . .”
       In approximately 2003 or 2004, Cain was diagnosed with congestive heart failure.
In 2005, Cain retired from NASA.
       On April 15, 2009, Cain underwent surgery for his heart condition. At that time,
petitioner was concerned about her third child, who was just under a year old, who had
been in the newborn intensive care unit (NCIU) for three weeks, and for whom flying
was not recommended by her doctor. Petitioner did not go to California for the surgery
but she spoke with Cain’s doctors and nurses.
       Prior to his surgery in April 2009, Davoren attended many medical appointments
with Cain. Cain asked Davoren to help him after the surgery.
       After the surgery, Davoren lived “24/7” with Cain at his home for nine months.
Davoren cared for him, cooked, cleaned, ran errands, and attended medical appointments
with Cain. Davoren indicated that she slept in Cain’s bed; Cain was having difficulty
breathing at night. Cain paid her $2,250 a month.
       Cain never gave Davoren control of any of his accounts. She did not help him pay
his bills while he was ill.
       In July 2009, petitioner and her family came to California to visit Cain and stayed
in Seascape for 10 days. Cain and Davoren visited them in Seascape.



                                              5
       During that extended visit, Cain told petitioner that he had only three months to
live. Cain and petitioner talked about how much they loved each other, what Cain
wanted for his grandchildren, and the Trust. He told her that his grandchildren and she
were the beneficiaries. Cain told petitioner that he wanted his grandchildren to go to
good private schools. Cain said that he loved his grandchildren and loved her, and he
wanted them “to have everything.” Cain and petitioner discussed her future role as a
trustee of the trust. He explained his approach to investment and property management
to her. Cain compiled some information concerning his funeral and burial wishes for her.
       Petitioner went with Cain to see his physician, Dr. Sharpe. The doctor confirmed
that Cain had three months to live.
       Also during that visit, Cain took petitioner to see his Quail Court property at
Carmel Valley Ranch. Eads, who was a licensed real estate agent and who had
represented Cain in four real estate transactions for which she had been fully
compensated, accompanied them.
       Weidner recalled that at some point during that 2009 visit, petitioner, Weidner,
and Eads had a conversation about Davoren. Weidner did not trust Davoren and he was
very concerned that she had access to Cain’s financial records and credit cards.
       On August 8, 2009, before petitioner and her family left the west coast, petitioner
and Cain exchanged e-mails. In petitioner’s e-mail, she stated in part: “You have been
very careful with your money over the years, generous with others but never lavish with
yourself. Now you have left it to me—a lot of money as executor of your trust. I will
follow in your steps. I hope I will make you proud.” Petitioner thanked him profusely
and described her life goals and her educational and enrichment goals for her children
and she expressed her deep appreciation and love for him. In his reply e-mail, Cain
thanked petitioner for the “wonderful message,” which was “better than any medicine,”
and told her that he loved her very much. Petitioner and her family returned to New York
on approximately August 8 or 9, 2009.

                                             6
       On August 10, Cain forwarded petitioner’s e-mail message to Eads.
       On August 29, 2009, petitioner returned to visit her father, and she stayed with
him for three or four days. During this second visit, Davoren temporarily returned to her
own home but she still went over there “quite often.”
       During petitioner’s second visit, Cain “spent hours and hours” providing
information that he thought petitioner would need “to take over his world.” Petitioner
wrote it down in a memoranda book provided by Cain. The purpose was to make sure
that petitioner would know exactly what do to when he died. He gave petitioner
information regarding his various accounts and the associated user names and passwords,
his monthly expenses and the accounts from which payments were made, his stock, his
credit cards, his pin number for his cash card, and important contact numbers. Eads
acknowledged that she was not privy to any conversation between Cain and petitioner
about his finances during that time. Cain and petitioner hid the book in a box in his
closet, and after Cain died, petitioner retrieved it.
       Some time before his death, Cain added handwritten notations to the trust
instrument. Two paragraphs providing for distributions, one to Eads and the other to
Larry, were lined out by hand. Adjacent to each of those two paragraphs was the
handwritten word “eliminate” and a hand-drawn arrow that pointed to the paragraph. In
the margin next to the paragraph providing for a distribution to petitioner, there were
arrows pointing to the paragraph and a notation “change to 4%.” On page 5 of the trust
instrument, in the margin next to the paragraph regarding the distribution of the
remainder of the trust estate, a handwritten notation states: “specific distribution as
noted—”
       At some point, Cain had indicated to petitioner that Larry had drug and alcohol
problems and “additional income would be detrimental to his survival.” Cain had
mentioned to petitioner that he was not going to leave anything to Larry. At the time of
the hearing, petitioner did not know where Larry lived.

                                               7
        After petitioner’s second visit in 2009, Cain and she communicated through
telephone calls and e-mail messages. He involved her in business and medical matters.
Cain loved his grandchildren, and, while they lived on the east coast, he talked with them
over the computer a couple of times a week.
        According to Davoren, during the nine-month period she cared for Cain in his
home in 2009, Eads visited Cain two or three times. Davoren knew that Eads had a prior
relationship with Cain; Eads was very controlling and possessive when she was around
Cain.
        In about January 2010, Davoren reduced her caretaking schedule to about three
times a week (Monday, Wednesday, and Friday). She would help with the chores, and
she was a companion. Cain paid her $1125 a month.
        Petitioner’s family visited Cain several times between 2010 and 2012. During a
February 2011 visit to California, petitioner and her husband understood that Cain needed
them to be there for him, and they began contemplating a move to California.
        Cain moved his residence about a year and a half before he died; Davoren helped
him pack, wash, and organize for the move. Eads was not involved in preparing for the
move.
        In November 2011, after petitioner and Weidner had decided to move their family
to the west coast, Weidner traveled to San Francisco for job reasons and visited Cain.
They had a very detailed conversation about the Trust, and Cain showed Weidner a
binder. He indicated that the Trust was for petitioner and his grandchildren and that
petitioner would “serve as the steward.”
        On May 3, 2012, Cain executed a new “Designation of Beneficiary” form
regarding his thrift savings plan account, naming Eads and Davoren as the beneficiaries.
Under the new designation, Eads and Davoren were each entitled to 50 percent of Cain’s
account. In a conversation with Cain at some point, Weidner learned that “fairly
significant sums of money” in an account would go to Eads and Davoren.

                                              8
        When petitioner and Weidner bought property in Marin County in 2012, they used
a real estate broker with whom Eads had connected them. Petitioner’s family moved to
California in July 2012.
        After petitioner’s family had moved out to California, Davoren traveled to
petitioner’s home about five times. Aside from the one time she visited with her sister,
Davoren visited with Cain. Once she went to a birthday luncheon event with Cain in
Fairfax and then to a birthday dinner celebration for his middle granddaughter in
Mill Valley. Eads was not at the dinner.
        Cain expressed concern to Davoren about the future of his daughter and his
grandchildren. Any time he mentioned his estate or assets, he indicated they were meant
for his family. Cain expressed his hope that Eads’s family would assume responsibility
for Eads.
        During the last few months of Cain’s life, petitioner was very active in his medical
care.
        The December before Cain died and before his final hospitalization, Cain showed
Davoren the paperwork designating her as a 50 percent beneficiary of his thrift savings
plan account.
        After attending a 2012 Christmas party with Eads and her family, Cain’s medical
condition worsened. Eads brought Cain home. Davoren and Trisha stayed with him for
two or three days and then called petitioner, who came. Petitioner and Eads, who
returned, stayed with him overnight and then took Cain to see Dr. Sharpe; Cain was
admitted to the hospital. Petitioner was with her father in the hospital.
        At that point, petitioner believed that Eads and she were friends. Cain insisted on
leaving the hospital and going home; he wanted to do his taxes with petitioner so she
would understand them and to tell her “how to run the estate.” Petitioner briefly returned
home while Davoren and Trisha took care of Cain and then returned to her father’s home.
Cain had petitioner pull out all the paperwork and records, and they went over them

                                              9
together. They were sitting on the couch with papers spread out all over the place. Eads
was not involved; Cain never sat down with petitioner and Eads to go over financial
matters.
       In the process of working on Cain’s taxes and going through his check registers,
petitioner learned that checks had been written to Eads. Cain told petitioner that he had
loaned Eads money over the years and that he had given her gifts. Although Eads was
present in Cain’s home at least part of the time during that period, Cain did not indicate to
her that she would be involved in the administration of his assets.
       Petitioner made arrangements for hospice for her father. Eads, Davoren, Trisha,
and Lee Judson Pulver (Cain’s neighbor and closest friend) were also present in Cain’s
home while he was in hospice. Petitioner’s daughters and husband came to visit but they
were not present the entire time. During this time period, Eads told petitioner that
Davoren was “a gold digger” and manipulated her father.
       Cain died on January 8, 2013 while petitioner was present. After Cain’s death,
petitioner, as instructed by him, retrieved the binder containing the trust documents from
under his desk. Eads was present by the desk when petitioner opened the binder.
Petitioner had never before looked at the original trust document or a copy. After Cain’s
death, petitioner found copies of her August 8, 2009 e-mail to him in his trust binder.
       According to petitioner, petitioner also opened the desk drawer and found a large
stack of uncashed checks payable to Cain from Eads. Attached by paper clip to each
uncashed check was a sticky note. Each sticky note was labeled “I.O.U.” and stated the
amount of the corresponding check; the sticky notes were signed by Eads. Petitioner
remarked to Eads, who was sitting next to her, that it was a lot of money, and Eads began
to cry and became very upset. Petitioner shredded some of the checks, but she then
decided that was not the right thing to do and put them back in the drawer. They
subsequently disappeared.



                                             10
       Eads testified that she could not recall seeing a stack of uncashed checks in Cain’s
desk drawer. She claimed that, when she was in Cain’s guest room, petitioner brought a
handful of checks to her and instructed her to get rid of them, which she did. According
to Eads, she had already disposed of the checks when she consulted counsel on
January 18, 2013. Eads knew that a check is a negotiable instrument and an I.O.U. is a
promise.
       At her deposition, Eads produced the checkbook carbonless copies of the checks
she had written to Cain. Those checks totaled $49,477. They largely correlated to cashed
checks written by Cain to Eads, who endorsed and cashed them. Petitioner claimed Eads
owed money to the Trust.
       Following her father’s death, petitioner undertook administration of the Trust. She
had advanced monies on behalf of the Trust. At the time of the hearing, the trust estate
had a net value of approximately three million dollars.
       Eads’s understanding was that petitioner and she were co-trustees of the Trust.
According to Eads, Cain had also explained that a percentage of the Trust would come to
her. Eads acknowledged that she had received as little as $50,000 or as much as
$160,000 from Cain over the years prior to his death.
       Eads acknowledged that Cain and she never lived as a man and woman under the
same roof at any time during their relationship. Eads did not know Anderson or Joy
Dewhirst, and she had never met Ketenjian. According to Eads, Cain dated Davoren for
a short time when she and Cain had briefly broken up in the 1990’s; Davoren and Cain
had remained friends, and Davoren had been hired to care for Cain after his 2009 surgery.
       Eads acknowledged that she had never had authority to sign on any of Cain’s
accounts and that she was not involved in any of his investments or financial affairs. He
had not given her a password to any financial account.
       Eads recognized Cain’s handwriting on the last page of schedule A, the inventory
of the trust estate, and on the estate planning letter regarding distribution of personal

                                              11
items not distributed through the Trust or his Will. Eads recognized that the two
handwritten words “eliminate” on page 6 of the trust instrument, adjacent to the
paragraphs providing for distributions to Larry and to her, as Cain’s handwriting. She did
not dispute that those provisions had been lined out.
        A forensic document examiner, testifying as an expert, opined that the notations
on page 6 of the trust instrument regarding distributions to Eads and Larry were written
by Cain. He did not have an opinion as to who had stricken the text adjacent to Cain’s
notations of “eliminate.”
        Cain’s thrift savings plan account, for which Eads and Davoren were the
designated beneficiaries, was worth approximately $300,000 when it was paid. Eads
acknowledged that, as a beneficiary of that account, she received a payment of
approximately $159,000. Eads had elected a lump sum payment rather than a monthly
payment.
        Anthony Wagenersmith, whose father was David Smith, Cain’s half-brother, was
named as a successor trustee of the trust, after Eads and petitioner. Wagenersmith, who
was an ordained pastor in the Seventh-Day Adventist Church at the time of the hearing,
first met Eads in 1996 while visiting Cain. He heard Eads ask Cain to lend her more
money. Cain later explained to Wagenersmith that he had loaned Eads a large amount of
money and Eads was asking for more, and Cain indicated that he was having a hard time
deciding what to do about that situation.
        Cain had asked Wagenersmith about Larry’s well being every time they spoke on
the telephone. Wagenersmith disclosed to Cain that his Uncle Larry had a pattern of
“blow[ing] the money” provided to help him. Wagenersmith asked about petitioner in
their conversations, but he did not directly interact with petitioner before Cain passed
away.
        During the five years prior to Cain’s death, Wagenersmith and Cain spoke about
every four to six months; they called each other. In fall 2009, Cain told Wagenersmith

                                             12
that he had had a falling out with Eads about money, and he said it was very sad. In
subsequent conversations, Cain never mentioned Eads but he did mention petitioner, his
grandchildren, and Davoren.
        After petitioner and her family moved to California, Cain shared with
Wagenersmith during their telephone conversations how much it meant to him and how
great it was to spend time with his grandchildren. It sounded to Wagenersmith as though
Cain and petitioner had become much closer as a result of the move.
        Pulver had been Cain’s neighbor in Los Gatos for about 25 years. He talked with
Cain almost every night when Pulver returned home from work if Cain was in town.
They were both engineers. Engineers do all their writing and marking in pencil.
        Pulver had signed Cain’s 2008 designation of Eads as the sole beneficiary of his
thrift savings plan account. Cain never discussed any change in the beneficiary
designation with Pulver.
        After Pulver moved to a smaller place down the street in about February 2011,
Cain bought the place next door and they continued as neighbors.
        Cain discussed his personal life with Pulver. Cain had several romantic
relationships going at the same time, and he liked to go out with different women. Cain
indicated to Pulver that he really liked Davoren, but he did not want to lose his freedom.
Cain visited Eads when he was in the Carmel area, and he spent occasional weekends
with her in Pacific Grove. Pulver testified that Cain did not “want to report to anybody”
but rather “he wanted to go out with, bluntly, a few different wom[e]n all of the
time . . . .”
        Pulver remembered that Cain was extremely excited when petitioner decided to
move to the area.
        Cain expressed concern to Pulver that his money would run out. Cain wanted his
assets to generate cash for a long time for the benefit of petitioner. Cain did not mention
Eads in this context. It was Pulver’s impression that Cain wanted petitioner to manage

                                            13
his assets; Cain commented on her tenacity and organizational skills. Eads was not
mentioned.
       Cain never showed the Trust or his Will to Pulver. They never discussed whether
Eads was a trustee of the Trust.
       For the 12 to 14 years prior to his death, Cain was a client of Randy Warshawsky,
an enrolled agent authorized to practice before the Internal Revenue Service (IRS).
Warshawsky received a telephone call from Cain, who informed Warshawsky that he was
leaving the hospital, he would not be able to make his appointment with Warshawsky
because he would no longer be alive, petitioner would be taking care of tax issues going
forward, and Warsawsky would need to work with petitioner on the preparations of
income tax returns.
       Eads was also a client of Warshawsky, who had represented her in “brushes” with
the IRS. At times, Cain had been brought into discussions with Warshawsky concerning
Eads’s tax issues.
       Before sending a letter of offer and compromise on behalf of Eads to the IRS in
2008, Warshawsky consulted with Cain and determined that Cain was the source of the
money to be paid to the IRS. In consulting with Cain, Warshawsky became aware of
certain loans made to Eads by Cain over the years. Cain asked Warshawsky whether
those loans could be written off as bad debt on his tax return because he was worried
about repayment. That topic arose in many subsequent years as well.
       When Frank DiPaola moved to Monterey County, Eads was his real estate agent.
DiPaola met Cain in 1994, and they became friends. DiPaola and his wife went out to
dinner with Eads and Cain on weekends, and some years they invited Eads and Cain to
their home on Thanksgiving and Christmas. The two couples saw each other about four
or five times a year. Eads and Cain seemed like husband and wife to DiPaola.
       In 2009, Eads told DiPaola that Cain was quite sick. When DiPaola telephoned
Cain, Cain indicated that Eads was spending time with him and he was grateful to her.

                                           14
Cain did not mention that another long-time female friend was staying with him “24/7”
following the surgery. DiPaola had no knowledge that Cain had “lady friends” other than
Eads over the years. DiPaola probably saw Cain two times during 2012, Cain’s last year
of life.
           Debbie Hoskins, Eads’s daughter, first met Cain in 1987. She saw Cain about five
to six times a year, at family holiday events and occasional dinners. Hoskins understood
that, over the years, Cain typically visited her mother on the weekend and Eads
occasionally spent the weekend at Cain’s Los Gatos home. Hoskins conceded, however,
that she had no personal knowledge of how long Cain spent with her mother when he
visited, Cain’s social life in Los Gatos, or his other friends.
           Kenton Lee Busch, Eads’s son, first met Cain at a family Fourth of July
celebration in 1987. Cain attended all holiday and family events with his mother. When
Cain was hospitalized in 2009, his mother went to the hospital and spent time with Cain
before and after his recovery. In 2012, Busch saw Cain four or five times, and one of
those occasions was his mother’s birthday in September 2012.
           On the occasion of Eads’s birthday in September 2012, Cain indicated to Busch
that he had taken care of Eads in the past, he would take care of Eads in the future, and
there was an account for her, which would provide a monthly allowance. Cain insinuated
that that was more than Busch had ever done, and would possibly ever do, for Eads.
Busch saw Cain again at Christmas time.
                                               II
                                           Discussion
A. Standard of Review
           “Evidence of the circumstances surrounding the execution of the trust instrument
is properly admissible to ascertain its meaning and intent. [Citations.]” (Burch v. George
(1994) 7 Cal.4th 246, 258, fn. 8 (Burch).) “Extrinsic evidence is ‘admissible to interpret
the instrument, but not to give it a meaning to which it is not reasonably susceptible’

                                               15
[citations] . . . .” (Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865.)
Extrinsic evidence of a settlor’s statements and conduct before and after the execution of
a writing is also admissible for the purpose of ascertaining the intent with which the
settlor executed the writing. (Cf. In re Sargavak’s Estate (1950) 35 Cal.2d 93, 96-97;
cf. also Estate of Duke (2015) 61 Cal.4th 871, 888.)
       “The interpretation of a will or trust instrument presents a question of law unless
interpretation turns on the credibility of extrinsic evidence or a conflict therein.
[Citations.]” (Burch, supra, 7 Cal.4th at p. 254, fn. omitted.) It is the reviewing court’s
duty to independently construe the trust instrument where there is no conflict in the
extrinsic evidence and no issues of credibility. (Id. at p. 254.) “The possibility that
conflicting inferences can be drawn from uncontroverted evidence does not relieve the
appellate court of its duty independently to interpret the instrument; it is only when the
issue turns upon the credibility of extrinsic evidence, or requires resolution of a conflict
in that evidence, that the trial court determination is binding. (Parsons v. Bristol
Development Co., 62 Cal.2d at p. 866, fn. 2.)” (Estate of Dodge (1971) 6 Cal.3d 311,
318, fn. omitted.) In contrast, “where extrinsic evidence has been properly admitted as an
aid to the interpretation of [an instrument] and the evidence conflicts, a reasonable
construction of the [instrument] by the trial court which is supported by substantial
evidence will be upheld. [Citations.]” (In re Marriage of Fonstein (1976) 17 Cal.3d 738,
746-747.)
       In this case, the probate court relied on extrinsic evidence in ascertaining whether
Cain intended to make operative changes with respect to the trust provisions that had
provided for distributions to Eads and Larry. Since the record in the present case
discloses no conflict in the extrinsic evidence and the parties have identified no
credibility issue with respect to the construction of Cain’s handwritten notations related
to those provisions, we independently construe the trust instrument. (Cf. Burch, supra, 7
Cal.4th at p. 254.)

                                              16
B. Extrinsic Evidence
          The lower court found, based on the evidence, that Cain was “very, very
meticulous.” It found this significant and determined that Cain’s intent was clear,
especially in light of other evidence. Based on Cain’s handwritten words “eliminate”
accompanied by arrows pointing to the provisions for annual distributions to Eads and
Larry and the striking out of those provisions, the court concluded that Cain had
effectively revoked those provisions and the writing was a final expression of Cain’s
intent.
          On appeal, Eads makes no suggestion that Cain’s notations of “eliminate” did not
constitute a written instrument.5 Eads states that “[t]he second instrument consists of the
handwritten word ‘eliminate,’ [sic] written twice in the margin next to the dispositive
provisions of beneficiaries Eads and Smith.” Rather, Eads argues that “[t]he trial court
erred in disregarding the lack of any extrinsic evidence of the circumstances of creation
of the instrument of revocation.” She suggests that there is no extrinsic evidence of the
circumstances surrounding those notations because there is no evidence of when they
were added.
          But neither the trust instrument nor the Probate Code required an amendment or a
revocation of the Trust to be dated or witnessed. Section 21102, subdivision (a),
provides: “The intention of the transferor as expressed in the instrument controls the
legal effect of the dispositions made in the instrument.” Subdivision (c) of section 21102
states: “Nothing in this section limits the use of extrinsic evidence, to the extent
otherwise authorized by law, to determine the intention of the transferor.”



          5
         The Probate Code defines the term “instrument” as “a will, trust, deed, or other
writing that designates a beneficiary or makes a donative transfer of property.” (§ 45; see
Cory v. Toscano (2009) 174 Cal.App.4th 1039, 1044-1046 [handwritten interlineations of
a trust met the definition of an “instrument” under the Probate Code].)


                                              17
       Eads has cited no authority precluding consideration of admissible extrinsic
evidence—both direct and circumstantial—that is relevant to determining a settlor’s
intent in executing a written instrument. The evidence showing that the words
“eliminate” were handwritten by Cain and that the trust instrument was kept in his
possession supports the reasonable inference that he was also responsible for the arrows
pointing to, and the lining out of, the original trust instrument’s provisions for
distributions to Eads and Larry. The evidence that Cain was contemplating his own
impending death at least since 2009 and that the trust instrument was carefully retained in
his desk ready for petitioner’s use upon his death supports the further inference that the
changes with respect to the original distributions to Larry and Eads were meant to be
operative.
       The evidence of Cain’s words and actions after he had been told that he had only
three months to live circumstantially also supports the inference that Cain intended those
changes to be operative. Cain told petitioner that she and her children were the
beneficiaries and he wanted them to have everything. After Cain received petitioner’s
August 8, 2009 e-mail thanking him for leaving his “money” to her, he did not disabuse
her of that understanding. Rather, he thanked her for the e-mail and then forwarded it to
Eads. Cain retained petitioner’s e-mail with his trust documents.
       Cain’s statements to petitioner and son-in-law during and after the family’s
summer 2009 visit and his thorough and exclusive mentoring of petitioner regarding the
trust assets, financial matters, and taxes are consistent with an intention to leave the entire
trust estate to petitioner and her progeny. Cain’s statement to his nephew in the fall of
2009 that he had had a falling out with Eads over money is also consistent with an intent
to eliminate Eads as a beneficiary.
       Eads argues that “[o]ne would think ‘the meticulous man’ described by the court
in its ruling from the bench . . . would at least have described or reported his action to
‘eliminate’ two substantial dispositive provisions to at least one witness . . . .” The

                                              18
evidence reflects, however, that he did tell petitioner that she and her children were the
beneficiaries of the Trust and he wanted them to have everything in the summer of 2009.
He had also told petitioner that he was not leaving anything to Larry.
       Eads suggests that, given Cain’s meticulousness, Cain’s failure to formally sign
and notarize a new trust instrument with an attorney indicates that he did not intend his
handwritten notations to be operative. We are not persuaded. Neither the original trust
instrument nor statute required him to use such method to effectively amend or partially
revoke the Trust. (See §§ 15401, 15402.)
       Eads complains that the “pencil interlineations were not taken as a whole by the
trial court” and the court erred in considering the words “eliminate” in isolation. She
does not provide any record citation to support her contentions, and it is not apparent
from the record that the court did not consider all of Cain’s notations and marks on the
trust instrument.
       Moreover, the fact that Cain had placed question marks and other handwritten
notations in the margins of trust instrument does not demonstrate, as Eads asserts, that all
of them were merely preliminary steps toward a possible future amendment of the entire
trust instrument. (Cf. Estate of Uhl (1969) 1 Cal.App.3d 138, 143 [The handwritten
notation, “Revise whole mess,” in the margin of the first page of a will was not “a
conclusive indication that the other markings on the will merely represented possible
future changes”].) Cain did not, for example, write “Eliminate?” next to the provisions at
issue. Instead, Cain went to some length to make clear his intent to make operative
changes by both adding the words “eliminate” and arrows pointing to those provisions
and lining out those provisions.
       We are satisfied, as was the lower court, that Cain intended his handwritten
notations and markings related to the paragraphs providing for distributions to Eads and
Larry to effect a change to his existing trust document, and they were not merely
preliminary or tentative.

                                             19
       “The words of an instrument are to be given their ordinary and grammatical
meaning unless the intention to use them in another sense is clear and their intended
meaning can be ascertained.” (§ 21122.) The word “eliminate” ordinarily means “to take
out; remove; get rid of.” (Webster’s New College Dict. (2008) p. 461.) That is the
correct construction of the word in this context, regardless of how that change is
characterized.
C. Method of Amendment or Revocation
       The remaining issue is whether Cain used an effective method to implement his
intent to eliminate the paragraphs providing for annual distributions to Eads and Larry.
       Section 15401 provides in pertinent part: “(a) A trust that is revocable by the
settlor or any other person may be revoked in whole or in part by any of the following
methods: [¶] (1) By compliance with any method of revocation provided in the trust
instrument. [¶] (2) By a writing, other than a will, signed by the settlor or any other
person holding the power of revocation and delivered to the trustee during the lifetime of
the settlor or the person holding the power of revocation. If the trust instrument explicitly
makes the method of revocation provided in the trust instrument the exclusive method of
revocation, the trust may not be revoked pursuant to this paragraph.”
       Section 15402 provides in pertinent part: “Unless the trust instrument provides
otherwise, if a trust is revocable by the settlor, the settlor may modify the trust by the
procedure for revocation.” “This section codifies the general rule that a power of
revocation implies the power of modification. [Citations.] An unrestricted power to
modify may also include the power to revoke a trust. [Citations.]” (Cal. Law Revision
Com. com., 54 West’s Ann. Prob. Code (1991 ed.) foll. § 15402, p. 575.)
       In this case, the trust instrument did not explicitly make the methods of
amendment or revocation provided in the trust instrument exclusive. Therefore, Cain, as
the settlor, could accomplish a modification or revocation by complying with the method
provided in the trust instrument or by complying with the statutory method. The trust

                                              20
instrument’s method for revoking the Trust, in part or whole, did not require Cain’s
signature. The other permissible methods for amending or revoking the trust did require
his signature.
       Eads’s argument is that lower court erred in finding that Cain partially revoked the
Trust. She maintains, as she did below, that Cain merely sought to amend the trust
instrument and the purported amendment fails because Cain did not sign it. She argues
that Cain did not revoke the Trust in part because no rights of testamentary disposition
were restored to Cain and the Trust remained intact.6
       Black’s Law Dictionary defines the noun “amendment” to mean “[a] formal and
usu. minor revision or addition proposed or made to a statute, constitution, pleading,
order, or other instrument; specif., a change made by addition, deletion, or correction;
esp., an alteration in wording.” (Black’s Law Dict. (10th ed. 2014) p. 98.) It defines the
verb “amend” to mean the following: “1. To correct or make usu. small changes to
(something written or spoken); to rectify or make right . . . . 2. To change the wording of;
specif., to formally alter . . . by striking out, inserting, or substituting words . . . .” (Ibid.)
A standard dictionary meaning of the verb “amend” is to “alter in any way esp. in
phraseology . . . ; specif: to alter . . . formally by modification, deletion, or addition.”
(Webster’s 3d New Internat. Dict. (1993) p. 68.)
       Black’s Law Dictionary defines the term “revocation” as “[a]n annulment,
cancellation, or reversal, usu. of an act or power.” (Black’s Law Dict., supra, p. 1515.)
It defines the verb “revoke’ to mean: “To annul or make void by taking back or
recalling; to cancel, rescind, repeal, or reverse.” (Ibid.) A standard dictionary meaning
of the term “revocation” is “an act of revoking: the act by which one having the right
annuls something previously done, a power or authority given, or a license, gift, or

       6
        A complete revocation of a trust terminates it. (§ 15407, subd. (a)(5).) No one is
suggesting that a complete revocation occurred here.


                                                21
benefit conferred . . . .” (Webster’s 3d New Internat. Dict., supra, p. 1944.) The verb
“revoke” is commonly defined as “to annul by recalling or taking back . . . : RESCIND,
CANCEL, REPEAL . . . .” (Ibid.)
       Eads’s understanding of word “revocation” in the context of the Trust is too
narrow. “A trust is a fiduciary relationship with respect to property in which the person
holding legal title to the property—the trustee—has an equitable obligation to manage the
property for the benefit of another—the beneficiary. [Citations.]” (Moeller v. Superior
Court (1997) 16 Cal.4th 1124, 1133-1134; see Rest.3d Trusts, § 2, p. 17.) “In the strict,
traditional sense, a trust involves three elements: (1) a trustee, who holds the trust
property and is subject to duties to deal with it for the benefit of one or more others;
(2) one or more beneficiaries, to whom and for whose benefit the trustee owes the duties
with respect to the trust property; and (3) trust property, which is held by the trustee for
the beneficiaries.” (Rest.3d Trusts, § 2, com. f., p. 21; see §§ 15200, 15201, 15202,
15205.)
       Cain’s elimination of the paragraphs providing for annual distributions to Eads
and Larry eliminated them as beneficiaries of the Trust. While those changes could be
described as amendments by deletion, they could equally be characterized as revocations
of part of the Trust. Since the trust instrument permits partial revocations without a
signature, we conclude that Cain effectively partially revoked the Trust. The probate
court properly determined that Eads was not a beneficiary of the Trust.
                                       DISPOSITION
       The February 7, 2014 order is affirmed. Petitioner is entitled to costs on appeal.




                                              22
                                  _________________________________
                                  ELIA, ACTING P.J.


WE CONCUR:




_______________________________
BAMATTRE-MANOUKIAN, J.




_______________________________
MIHARA, J.
