Filed 2/24/20
                      CERTIFIED FOR PUBLICATION

       IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         FIRST APPELLATE DISTRICT

                                    DIVISION TWO



 MARK ROTH,
         Plaintiff and Appellant,
                                             A155742
 v.
 PHILIP M. JELLEY, as Trustee,               (Contra Costa County
 etc., et al.,                               Super. Ct. No. MSP1700555)
         Defendants and Respondents.


       Petitioner Mark Roth (Mark) petitioned the probate court to be
recognized as the beneficiary of a trust created by his grandfather pursuant
to the default distribution provision of his grandfather’ will. The probate
court rejected the petition on the ground that an order made in the probate of
the grandfather’s estate in 1991 (which we refer to as the “1991 Decree”)
eliminated Mark’s interest in the trust and was binding on him, even though
he received no notice of the court proceeding that resulted in the 1991 Decree.
This appeal presents the question whether Mark had a property interest in
the testamentary trust created by his grandfather such that he had a due
process right to notice and an opportunity to be heard before the probate
court could enter the 1991 Decree that eliminated his interest in the trust.
       Mark’s grandfather, McKie Roth Sr. (McKie Sr.) created a trust in his
will for the benefit of his wife Yvonne Roth (Yvonne) during her life and
granted her a testamentary power of appointment over the remainder. The



                                         1
will provided a default distribution scheme in case Yvonne did not exercise
her appointment power, under which McKie Sr.’s three adult children from a
prior marriage and the Yvonne’s one adult son from a prior marriage would
each take a one-quarter share of the remainder of the trust, with the proviso
that, if an adult child did not survive Yvonne, then that child’s surviving
issue would take that child’s share per stirpes. Thus, under the will, the
issue of each of the four adult children had a contingent remainder interest in
the trust, subject to divestment by Yvonne’s exercise of her appointment
power.
      When McKie Sr. died in 1988, his three adult children raised claims
against their father McKie Sr.’s estate unrelated to the trust; they eventually
settled their claims with McKie Sr.’s estate, Yvonne (his surviving wife), and
the estate executor. One of the terms of the settlement was that the McKie
Sr.’s three adult children disclaimed any interest in the trust.
      In 1991, the probate court issued a decree of final distribution of the
McKie Sr.’s estate—the 1991 Decree—which included language changing the
default distribution of the trust upon Yvonne’s death, ostensibly based on the
terms of the settlement. The 1991 Decree specified that the remainder of the
trust was to be distributed solely to Yvonne’s son or his surviving issue in
case of default (i.e., failure of Yvonne to exercise her testamentary power of
appointment). But McKie Sr.’s grandchildren (specifically, Mark and the
other then-living issue of McKie Sr.’s three adult children) were not given
prior notice of the 1991 decree, even though the decree eliminated their
contingent interests in the remainder of the trust. Yvonne died in 2016
without having exercised her testamentary power of appointment.
      Mark’s father McKie Roth Jr. (McKie Jr.) predeceased Yvonne. Mark
petitioned the probate court to be recognized as a beneficiary of the trust



                                       2
pursuant to the default distribution provision of McKie Sr.’s will. He
asserted the 1991 Decree was void because he never received notice of the
proceeding that culminated in the 1991 decree.
      At the parties’ agreement, the probate court decided the following
dispositive issue in a bifurcated proceeding: was the 1991 Decree binding on
the parties? The court determined the 1991 Decree was binding even though
Mark received no prior notice because, in the court’s view, Mark had no
cognizable property interest in the trust.
      We conclude, however, that Mark did have a property interest in the
trust in 1991 and that the 1991 Decree adversely affected his interest. Since
it is not contested that Mark’s existence and address were reasonably
ascertainable at the time, due process required that Mark be given notice of
the proceeding that resulted in the 1991 Decree and an opportunity to object.
Because Mark was not given such notice, the 1991 Decree is void.
Accordingly, we reverse.
            FACTUAL AND PROCEDURAL BACKGROUND
      McKie Sr. and his wife Marion Roth had three children, McKie Jr.
(Mark’s father), Diane Roth Lauer (Diane), and Joanne Roth Gibbons
(Joanne). Marion Roth died in 1966.
      After Marion died, McKie Sr. married Yvonne, who had one son from a
prior marriage, respondent James Barron (James).
      McKie Sr. died in 1988.
The MWR Will and the FYR Trust
      McKie Sr. left a will and codicil (MWR Will), which created two trusts,
the “First Yvonne Roth Trust” (FYR Trust) and the “Second Yvonne Roth
Trust” (SYR Trust) with respondent Philip M. Jelley, an attorney, named as
trustee. In both trusts, the trustee was to pay the net income to Yvonne, and



                                       3
portions of the principal could be distributed to Yvonne as necessary for her
maintenance, support, and comfort and as needed in an emergency. This
appeal involves the FYR Trust only.
      The FYR Trust was described in the fourth paragraph of the MWR
Will. Subparagraph (c) of the fourth paragraph specified that the trust would
terminate upon Yvonne’s death, and Yvonne was granted a testamentary
power of appointment over the balance of the trust. Subparagraph (d)
provided a default scheme of distribution of the balance of the trust at its
termination if Yvonne did not exercise her testamentary power of
appointment.
      The relevant language reads, “Any portion of the principal and accrued
and undistributed income of this trust not validly and effectively appointed
by my said wife pursuant to subparagraph (c), shall, upon the death of my
said wife, be distributed in equal portions to McKie W. Roth, Jr., Diane Roth
Lauer, Joanne Roth Gibbons and James Barron, provided however if such
persons should not be then living, but leave issue surviving them, then such
issue shall take per stirpes, the portion that such individual would have
taken if then living . . . .”
Probate of McKie Sr.’s Estate
      In 1988, Jelley filed a petition for probate of the MWR Will and to be
appointed executor of McKie Sr.’s estate. Notice of the probate petition was
served by mail to Yvonne, McKie Jr., Diane, Joanne, James, William Henry
Barron (James’s son), and James C. Soper (the person named as alternate
executor in the MWR Will). These persons’ names, their relationships to
McKie Sr., and their addresses were listed in the MWR Will.
      Mark, who was over the age of 21 when McKie Sr. died, was not named
on the proof of service of the notice of the probate petition.



                                        4
        Notice of the probate petition was also given by publication.
        Settlement Agreement
        Prior to his death, McKie Sr. served as trustee of the Marion Roth
Trust, whose beneficiaries were McKie Sr., McKie Jr., Diane, and Joanne.
When McKie Sr. died, McKie Jr. became the successor trustee. In July 1988,
McKie Jr. filed a creditor’s claim against McKie Sr.’s estate. By 1990, there
were various claims and objections pending in the probate of McKie Sr.’s
estate and the separate probate of the Marion Roth Trust and two lawsuits
alleging legal malpractice against Jelley and his law firm pending in Marin
County. These claims, objections, and lawsuits were based on allegations of
misconduct by McKie Sr., his attorney Jelley and Jelley’s law firm (among
other things) and included objections to the final account and report of
trustee McKie Sr. in the Marion Roth Trust probate case and objections to
the first account and report of executor Jelley in the McKie Sr. estate probate
case.
        In April 1990, the disputants reached a settlement embodied in a
document titled “Settlement and Release Agreement” (Settlement
Agreement). The signatories were, on one side, McKie Sr.’s adult children,
McKie Jr., Diane and Joanne (together referred to as “Claimants” in the
Settlement Agreement) and, on the other side, Jelley, his law firm and
Yvonne (“Respondents”). Claimants settled and released all pending claims
related to McKie Jr.’s alleged misconduct in managing Claimants’ mother’s
trust (the Marion Roth Trust), as well as all other claims known or unknown
against Respondents in exchange for consideration that included payment of
$ 2,250,000. The payment was from McKie Sr.’s estate (not from the FYR
Trust) and was paid in part to Diane as a beneficiary of the Marion Roth




                                         5
Trust and in larger part to McKie Jr. as the successor trustee of the Marion
Roth Trust.
      The Settlement Agreement included a term regarding Claimants’
interest in the FYR Trust. Paragraph 2.a.(i) of the agreement provided,
“Claimants irrevocably disclaim and renounce all other interest in the Estate
of McKie W. Roth, Sr., and the First Yvonne Roth Trust . . . .” The agreement
also provided, “All of the terms and provisions contained herein shall inure to
the benefit of and shall be binding upon Claimants and Respondents and
their respective legal representatives, successors and assigns.”
      The probate court approved the Settlement Agreement and authorized
the executor to pay out of McKie Sr.’s estate $2,250,000 according to the
terms of the Settlement Agreement. There is no record evidence that a copy
of this order was formally served on Mark, and Mark denies being served
with the order.
      1991 Decree
      In August 1991, Jelley as executor of McKie Sr.’s estate filed his third
and final account and report and petition for final distribution of the estate
(Final Account and Petition for Distribution). In the Final Account and
Petition for Distribution, Jelley averred that the bulk of the estate was
distributable “upon the terms set forth in paragraphs FOURTH [describing
the FYR Trust] and SIXTH of the [MWR W]ill . . ., as modified by paragraphs
2.a.(i) and 2.a.(iv) of the Settlement and Release Agreement.” 1 (Italics


      1 As we have seen, McKie Sr.’s three adult children disclaimed any
interest in the FYR Trust in paragraph 2.a.(i) of the Settlement Agreement.
In paragraph 2.a.(iv), they promised (1) not to assert any claims against the
McKie Sr. estate, (2) not to object to the second account and final report of the
executor in the McKie Sr. estate, and (3) as to the SYR Trust, not to object to
any account or other proceeding except as provided elsewhere in the
agreement (regarding administration of the SYR Trust only).

                                       6
added.) However, no proposed modified terms of the FYR Trust were
included in the Final Account and Petition for Distribution.
      Mark was not named on the proof of service for the hearing on the
Final Account and Petition for Distribution.
      In September 1991, the probate court approved an order prepared by
Jelley’s law firm titled “Order Settling Third and Final Account and Report of
Executor, Approving Payment of Balance of Statutory Compensation to
Executor and His Attorneys and For Final Distribution of the Estate.” This
is the 1991 Decree that Mark claims is void due to lack of notice.
      The 1991 Decree stated the distribution of assets was based on “the
terms of the decedent’s will, the Settlement and Release Agreement and the
laws of the State of California.” Subdivision IV of the 1991 Decree described
the terms of the FYR Trust (to which estate assets were distributed). The
first three subparagraphs generally tracked the language of the MWR Will.
      Subparagraph (d) of Subdivision IV, however, varied from paragraph
fourth, subparagraph (d) of the MWR Will, the default distribution provision.
It stated the following term of the FYR Trust: “(d) Any portion of the
principal and accrued and undistributed income of this trust not validly and
effectively appointed by Yvonne Roth pursuant to subparagraph (c), shall,
upon the death of Yvonne Roth, be distributed to James Barron, or, if James
Barron shall not be then deceased leaving descendants then living, to the
then living descendants of James Barron per stirpes . . . .” Thus, under the
1991 Decree, if Yvonne did not exercise her testamentary power of
appointment, the remainder of the FYR Trust would be distributed to James
or, if he predeceased Yvonne, to his issue alone upon Yvonne’s death.
      There is no record evidence that a copy of the 1991 Decree was formally
served on Mark, and Mark denies being served with the decree.



                                       7
      Declination of Exercise of Power of Appointment
      On August 12, 2005, Yvonne signed a document called “Declination of
Exercise of Power of Appointment” (Yvonne’s declination). It was prepared
by James Soper, identified as the attorney for Jelley as “Trustee,” and was
captioned for filing in the McKie Sr. estate probate case. Yvonne’s
declination referred to and quoted from the 1991 Decree as the source of her
testamentary power of appointment and did not mention the MWR Will. It
provided, “Yvonne Roth does hereby decline to exercise her power of
appointment set forth in the [1991] Decree . . . .”
The Current Petition
      McKie Jr. predeceased Yvonne, leaving Mark as his sole issue. In
October 2016, Yvonne died without having exercised the power of
appointment over the remainder of the FYR Trust. McKie Sr.’s other
children, Diane and Joanne, survived Yvonne.
      Mark Petitions to be Recognized as a Beneficiary of the FYR Trust
      In April 2017, Mark filed a petition in the matter of the FYR Trust.
Mark sought orders directing the trustee to recognize him as a beneficiary of
the trust and imposing a constructive trust on one-half of any distributions of
the residue already made, among other things.
      Mark alleged that, as a consequence of the Settlement Agreement, he
and James are now the only two vested beneficiaries of the residue of the
FYR Trust pursuant to the default distribution provision of the MWR Will
(Diane and Joanne having disclaimed their interest in the trust). He
asserted the 1991 Decree was void to the extent it “purports to affect [his]
interests” in the FYR Trust on grounds of (1) “lack of due process rights to
notice and opportunity to be heard” and (2) “failure to comply with Cal.




                                        8
Probate Code §§ 15403, et seq.,” which govern the modification or termination
of an irrevocable trust such as the FYR Trust.
      Jelley and James Respond to the Petition
      Jelley as trustee and James filed separate answers, objections, and
responses. In his answer, Jelley alleged the FYR Trust was created by the
1991 Decree and denied Mark was a beneficiary of the trust. Jelley and
James both asserted as affirmative defenses laches, estoppel, waiver, unjust
enrichment, and lack of standing.
      The Parties Agree to Bifurcation
      At a hearing on April 3, 2018, Mark, Jelley, and James agreed to
bifurcate the trial of certain issues raised by Mark’s petition. The parties
framed the first issue to be decided as whether the parties were bound by the
1991 Decree. The parties together filed “Stipulated Facts re Bifurcated Issue
as to Whether 1991 Decree of Distribution Binds Parties,” which included
documents related to the probate of McKie Sr.’s estate. According to the
probate court, the parties “agreed to brief the issues and submit them on oral
argument as a matter of law.”
      The Probate Court Rules Against Mark
      The court issued its decision in a written “Order Denying Mark Roth’s
Petition for Orders Regarding the First Yvonne Roth Trust” on September 27,
2018. It rejected Jelley and James’s argument that the FYR Trust did not
exist until it was funded by the 1991 Decree and determined instead that the
FYR Trust came into existence when McKie Sr. died in 1988. The court
further recognized that “Mark’s future interest as a contingent remainder
beneficiary also came into existence when McKie Sr. died” and that “Mark’s
interest could not be defeated by McKie Jr.’s forfeiture of his intermediate or
precedent interest,” citing Estate of Lefranc (1952) 38 Cal.2d 289, 297.



                                       9
      But, the court found, “McKie Jr. received his interest in the trust” “[b]y
way of the Settlement Agreement,” and “because McKie Jr. received his
interest under the trust while he was alive (before he predeceased Yvonne),
Mark’s contingent remainder interest did not vest.”
      The court next observed, “Because he may have had a property right
based on his future contingent remainder interest in the trust, Mark should
have objected at the time of the Court’s approval of the Settlement
Agreement [in 1990], or before the issuance of the 1991 [Decree].” The court
went on to consider whether Mark received sufficient notice of the McKie Sr.
estate probate proceedings “from a due process perspective.”
      First, the court found Mark was not statutorily entitled to personal
notice of the hearing on the 1991 Decree under Probate Code section 11000. 2
Second, it determined that due process considerations did not entitle Mark to
personal notice of the hearing either. The court believed Mark “had no more
than a unilateral expectation to a share of the [FYR] Trust” and “[t]hat
expectation never amounted to a legitimate claim of entitlement to it because
his interest did not vest for lack of . . . two conditions precedent.” 3 It


      2 Probate Code section 11000 provides that notice of a hearing on an
account of an estate “shall” be given to “[e]ach known heir whose interest in
the estate would be affected by the account” and “[e]ach known devisee whose
interest in the estate would be affected by the account.” (Prob. Code, § 11000,
subd. (a)(2) and (3).) Here, the probate court reasoned, “Mark’s contingent
remainder interest in the estate, however, was so far removed from McKie Sr.
that his interest could be affected only by the account, potentially, and did
not amount to an heir whose interest would be affected by the account,
certainly, as the Legislature intended.” (Further undesignated statutory
references are to the Probate Code.) The probate court further found that, as
a contingent remainder beneficiary, Mark was not statutorily entitled to
personal notice under sections 1201, 1202, and 1206.
      3The probate court described the two “condition precedents” or
contingencies that had to occur for Mark to have an interest in the FYR Trust

                                         10
concluded, “In these circumstances, although he may have had an abstract
concern in obtaining an inheritance through McKie Jr., Mark did not have a
property interest sufficient to require the trustee, other beneficiaries, or the
Court to notice him of the hearing when the orders were issued approving the
settlement agreement and distributing the estate’s funds, and more
importantly, approving McKie Jr.’s actions as to his vested interest in the
trust and estate at that time.”
      Third, the court rejected Mark’s argument that the 1991 Decree
modified the FYR Trust by changing the default distribution provision
specified in the MWR Will. The court reasoned that the signatories to the
Settlement Agreement “did not modify the terms of the testamentary trust.
Instead, they bargained for the vesting and release of their interests.”
      In its conclusion, the court denied Mark’s petition for an order directing
the trustee to recognize him as a beneficiary of the trust and other relief.
                                  DISCUSSION
A.    Standard of Review
      We review de novo questions of law submitted on stipulated facts.
(Employers Mutual Casualty Co. v. Philadelphia Indemnity Ins. Co. (2008)
169 Cal.App.4th 340, 347.) We independently review due process claims
“because ‘the ultimate determination of procedural fairness amounts to a
question of law.’ ” (In re Jonathan V. (2018) 19 Cal.App.5th 236, 241.)




as (1) “Yvonne had to leave property in trust for distribution to McKie Jr.”
and (2) “McKie Jr. had to outlive Yvonne before receiving his interest in the
trust,” but “[n]either of these contingencies occurred.”

                                        11
B.    Mark Was Entitled to Notice of the Proceeding that Resulted in the 1991
      Decree as a Matter of Due Process Because the Decree Affected His
      Property Interest in the FYR Trust
      Mark contends due process required that he be mailed notice of the
proposed change to the default distribution provision and an opportunity to
be heard before the probate court could issue the 1991 Decree because that
decree affected his property interest in the FYR Trust. Respondents argue
Mark had no due process right to notice because he had no property right in
the FYR Trust or, alternatively, because his property right was so remote,
mailed notice was not required. We agree with Mark.
      1.    Due Process Requires Reasonable Notice of Any Proceeding
            Adversely Affecting a Property Interest
      In 1950, the United States Supreme Court in Mullane v. Central
Hanover Bank & Trust Co. (1950) 339 U.S. 306, 314 (Mullane) “recognized
that prior to an action which will affect an interest in life, liberty, or property
protected by the Due Process Clause of the Fourteenth Amendment, a State
must provide ‘notice reasonably calculated, under all circumstances, to
apprise interested parties of the pendency of the action and afford them an
opportunity to present their objections.’ . . . [T]he Court held that published
notice of an action to settle the accounts of a common trust fund was not
sufficient to inform beneficiaries of the trust whose names and addresses
were known. The Court explained that notice by publication was not
reasonably calculated to provide actual notice of the pending proceeding and
was therefore inadequate to inform those who could be notified by more
effective means such as personal service or mailed notice.” (Mennonite Bd. of
Missions v. Adams (1983) 462 U.S. 791, 795 (Mennonite).)
      In Mennonite, the United States Supreme Court succinctly stated the
rule, “Notice by mail or other means as certain to ensure actual notice is a



                                        12
minimum constitutional precondition to a proceeding which will adversely
affect the liberty or property interests of any party . . . if [that party’s] name
and address are reasonably ascertainable.” (Mennonite, supra, 462 U.S. at p.
800.)
        In California, courts have applied Mullane in probate matters since at
least 1968. In Estate of Reed (1968) 259 Cal.App.2d 14, a decedent’s will
created a trust under which his children Paul and Bessie each received half of
the income of the trust, the trust was to end upon the death of Bessie, and
Paul was given the power of appointment over both his half of the income and
the corpus of the trust at its termination. (Id. at p. 15.) Paul died before
Bessie, and his will left the remainder of his estate to three named charities.
After Paul died, the trustee filed a sixteenth account of the trust, which
included a request that the probate court find Paul’s will was ineffective as
an exercise of the appointment power over the trust. The trustee, however,
did not give notice of the sixteenth account of the trust to any of the three
charities named in Paul’s will even though the trustee knew about these
residuary charity beneficiaries. Following the trustee’s request, the probate
court in 1954 made an order finding Paul failed to exercise his power of
appointment. In 1967, after Bessie died and the trust terminated, the three
named charities moved to vacate the 1954 order, and the probate court
granted the motion. (Id. at pp. 16–19.)
        The Court of Appeal affirmed, observing that Mullane “on the facts
before us, clearly holds that the statutory notice cannot be equated with due
process.” (Estate of Reed, supra, 259 Cal.App.2d at p. 20.) The court
explained, “Mullane discusses at some length the in rem character of some
judgments but holds that a proceeding to determine the rights of
beneficiaries under a trust is not embraced within the in rem classification



                                        13
and that when the rights of beneficiaries to a trust are inevitably affected, they
are entitled to notice and are indispensable parties. The mere statement of
this principle as a general proposition, is to accept it.” (Id at p. 21, italics
added.) “At the very least, the beneficiaries [i.e., the three charities] in the
present case were entitled to notice ‘reasonably calculated’ to reach them. . . .
The statutory notice which was given was in effect no notice to respondents.”
(Id. at p. 22, fn. omitted.) The court concluded, “the failure of the trustee to
join the respondents and/or give more adequate notice to enable them to
defend their interests in the trust resulted in a void order.” (Ibid., italics
added.)
      In 1975, an appellate court citing Mullane stated, “The United States
Supreme Court has now made it clear that blind labeling of probate
proceedings as ‘in rem’ does not satisfy constitutional requirements of due
process. Those requirements mandate that ‘notice reasonably calculated,
under all the circumstances, to apprise interested parties of the pendency of
the action and afford them an opportunity to present their objections. . . .’ is
necessary to meet constitutional standards.” (Estate of Lacy (1975) 54
Cal.App.3d 172, 187.) 4




      4 The United States Supreme Court itself applied Mullane/Mennonite
due process principles in the probate context in Tulsa Professional Collection
Services, Inc. v. Pope (1988) 485 U.S. 478. In that case, the court recognized
that an unsecured creditor’s claim against an estate was an intangible
property interest protected by the Fourteenth Amendment and that statutory
notice of the debtor’s probate by publication alone did not necessarily comply
with due process. As to known or reasonably ascertainable creditors, actual
notice of the debtor’s probate proceeding was required for a state nonclaims
statute to satisfy due process. (Id. at pp. 480–481, 485–490.)

                                         14
       2.     Mark Had a Property Interest in the FYR Trust
       As we have seen, the MWR Will created the FYR Trust, granted
Yvonne a testamentary power of appointment over the remainder of the
trust, and provided a default distribution if Yvonne did not exercise her
testamentary power of appointment. In case of default, the MWR Will
provided that the remainder “shall, upon the death of my said wife, be
distributed in equal portions to McKie W. Roth, Jr., Diane Roth Lauer,
Joanne Roth Gibbons and James Barron, provided however if such persons
should not be then living, but leave issue surviving them, then such issue
shall take per stirpes, the portion that such individual would have taken if
then living . . . .”
       We agree with the probate court that the FYR Trust came into
existence at the death of McKie Sr. pursuant to the MWR Will and that
Mark’s “future interest as contingent remainder beneficiary also came into
existence when McKie Sr. died.” (See Ludwicki v. Guerin (1961) 57 Cal.2d
127, 131–132 [if a will “creates an express trust, the legal title of the trustee
and the equitable title of the beneficiary vest as of the date of death” of the
testator]; (Estate of Baird (1955) 135 Cal.App.2d 333, 341 [regardless of
whether their remainder interests were vested or contingent, the interests of
the remaindermen came into existence on the testator’s death]; Estate of
Lefranc, supra, 38 Cal.2d at pp. 291, 297 [where income of a testamentary
trust was to go to the decedent’s niece during her life and, upon the niece’s
death, contingent remaindermen were to take the balance of a trust, the
remaindermen held “future interests” that came into existence at the
decedent’s death]; § 24, subd. (c) [as it relates to a trust, a “beneficiary”
includes “a person who has any present or future interest, vested or
contingent”].)



                                        15
      Mark’s property interest in the FYR Trust was contingent, not vested,
because Mark would only take a share of the remainder if certain conditions
precedent occurred: McKie Jr. had to predecease Yvonne (“not be then living”
upon Yvonne’s death) and Mark had to survive McKie Jr. (“leave issue
surviving them”). Further, there had to be some balance left in the trust at
its termination and Yvonne had to refrain from using her testamentary
power of appointment. Mark’s interest was future, not present, because he
could only take a share of the remainder upon Yvonne’s death in the future.
      But we reject the probate court’s determination that Mark “had no
more than a unilateral expectation to a share of the [FYR] Trust.” Mark had
an actual property interest in the trust as set forth in the MWR Will. Mark’s
property interest was contingent and subject to divestiture if Yvonne
exercised her testamentary power of appointment, but it was more than a
“mere unilateral expectation” as claimed by respondents. First, “[t]he law
has long recognized that a contingent future interest is property [citation] no
matter how improbable the contingency” (In re Marriage of Brown (1976) 15
Cal.3d 838, 846, fn. 8), and “a contingent remainder is an estate and not a
mere expectancy” (Estate of Zuber (1956) 146 Cal.App.2d 584, 591). Second,
takers in default (i.e., persons specified by a donor of a power of appointment
to take property in default of the appointment) hold property interests even
though “their interests are subject to complete divestment” through exercise
of a power of appointment. (Ammco Ornamental Iron, Inc. v. Wing (1994) 26
Cal.App.4th 409, 418-419 [“persons in existence, who are specifically
designated in a trust instrument to take in default of the exercise of a power
of appointment by the holder of the preceding estate, are beneficiaries of that
trust and acquire vested remainder interests, although their interests are
subject to complete divestment”]; see § 672, subd (a) [“if the powerholder of a



                                      16
discretionary power of appointment fails to appoint the property, releases the
entire power, or makes an ineffective appointment, in whole or in part, the
appointive property not effectively appointed passes to the person named by
the donor as taker in default”].) Thus, Mark’s contingent future interest in
the remainder of the FYR Trust created by the MWR Will upon McKie Sr.’s
death was a cognizable property interest, not a mere expectancy, and this
property interest did not disappear simply because it was subject to complete
divestment if Yvonne chose to exercise her testamentary power of
appointment.
      3.    The 1991 Decree Adversely Affected Mark’s Property Interest
      If a proceeding will “adversely affect” a person’s property interest, due
process requires that the person be given notice by mail of the proceeding and
an opportunity to be heard when the person’s name and address are
reasonably ascertainable. (Mennonite, supra, 462 U.S. at pp. 795, 800.) That
the 1991 Decree adversely affected Mark’s property interest in the FYR Trust
seems undeniable. Under the MWR Will, Mark had a contingent future
remainder interest in the trust, but under the 1991 Decree, he had no
property interest in the trust.
      Respondents, however, take the position the 1991 Decree did not affect
Mark’s property interest because Mark lost his interest under the MWR Will
when McKie Jr. signed the Settlement Agreement. Respondents rely on the
language of the default distribution provision that if the identified adult
children “should not be then living, but leave issue surviving them, then such
issue shall take per stirpes, the portion that such individual would have
taken if then living.” (Italics added.) Respondents argue that, if McKie Jr.
had been living, he would not have taken anything because he disclaimed his




                                       17
interest in the FYR Trust in the Settlement Agreement, and urge that Mark
likewise must take nothing.
      But the Settlement Agreement did not alter the MWR Will. (Estate of
Muhammad (1971) 16 Cal.App.3d 726, 736 (Muhammad) [an agreement of
compromise, even when approved by the court, does not modify the will; the
rights of parties under the agreement are contractual not testamentary].)
Nor could the Settlement Agreement bind Mark, who was not a party to the
agreement. (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th
793, 810–811 [a settlement agreement is a contract, and an essential element
of any contract is consent]; see Ferraro v. Camarlinghi (2008) 161
Cal.App.4th 509, 542 [stipulated judgment based on settlement agreement
had no preclusive effect on a stranger to the settlement agreement].)
      The phrase “that such individual would have taken if then living” as
used in the MWR Will, therefore, cannot reasonably be read to incorporate
later contracts McKie Jr. may have made promising not to enforce his own
contingent remainder interest. As Mark argues, “because McKie Sr. could
not possibly know or control what circumstances might occur beyond his will,
he obviously meant that Mark might take the share that McKie Jr. would
take by virtue of the terms of the MWR Will if McKie Jr. was living at the time
of Yvonne’s death.” 5


      5 We also note that the MWR Will provided, “Each and every
beneficiary under this trust is hereby restrained from and is and shall be
without right, power or authority to sell, transfer, pledge, mortgage,
hypothecate, alienate, or in any other manner affect or impair his or her
beneficial or legal right, title, interest, claim or estate in and to the income
and principal, or income or principal, of this trust during the entire existence
thereof . . . .” This spendthrift provision further shows it was McKie Sr.’s
intent that the beneficiaries of the FYR Trust not be allowed to contract away
their interests in the trust. That the disclaimers by McKie Jr., Diane, and
Joanne of their own interest in the FYR Trust are nonetheless enforceable by

                                      18
      Here, we disagree with the probate court’s interpretation of what the
Settlement Agreement accomplished. It believed McKie Jr. bargained for the
vesting and release of his interest in the FYR Trust. But McKie Jr. could
only disclaim his own interest in the FYR Trust, which was a contingent
remainder. His interest could not vest until the condition precedent of
surviving Yvonne occurred (and this did not occur). Nor did Yvonne have the
power to “vest” McKie Jr.’s interest in the trust before she died. She had a
testamentary power of appointment, meaning she could appoint the
remainder in a will. She could not appoint the remainder while she was
alive, and she could not exercise her power by any instrument other than a
will. (See § 630, subd. (a) [“if the creating instrument specifies requirements
as to the manner, time, and conditions of the exercise of a power of
appointment, the power can be exercised only by complying with those
requirements”].) Accordingly, Yvonne and McKie Jr. could not agree to “vest”
McKie Jr.’s contingent interest in the FYR Trust in a manner that would
destroy Mark’s contingent remainder interest. 6 Moreover, the Settlement
Agreement involved claims McKie Jr., Diane, and Joanne made, as



the trustee against them is a matter of contract, not because the Settlement
Agreement modified the terms of the MWR Will. (See Estate of Muhammad,
supra, 16 Cal.App.3d at p. 736 [where the beneficiaries reached a settlement
agreement regarding the administration of a testamentary trust, “the rights
of the parties so far as they rest upon the agreement are contractual and not
testamentary”].)
      6 McKie Jr. and his siblings agreed that the Settlement Agreement
would be binding on “their respective legal representatives, successors and
assigns.” To the extent respondents suggest Mark is bound by the
Settlement Agreement because he is McKie Jr.’s successor, this suggestion is
unavailing. Mark does not claim a share of the remainder of the FYR Trust
as the successor or assignee of McKie Jr.’s property right. Mark’s property
right in the trust arises directly from the MWR Will.


                                      19
beneficiaries of the Marion Roth Trust, against McKie Sr. for alleged
misconduct in managing that trust. 7 Mark had nothing to do with these
claims, which were not related to the FYR Trust.
      In short, we reject respondents’ claim that McKie Jr. effectively signed
away Mark’s property interest in the FYR Trust through the Settlement
Agreement. It was only the 1991 Decree, and not the earlier Settlement
Agreement, that affected Mark’s property interest in the FYR Trust by
eliminating his contingent remainder interest.
      4.    Due Process Required Notice to Mark of the Proceeding That
            Resulted in the 1991 Decree
      Because the 1991 Decree adversely affected Mark’s property interest in
the FYR Trust, he was entitled to notice by mail and an opportunity to be
heard if his name and address were reasonably ascertainable. (Mennonite,
supra, 462 U.S. at pp. 795, 800.)
      At the time the 1991 Decree was adopted, Mark was McKie Jr.’s adult
son and McKie Sr.’s grandson, and Jelley had apparently been dealing with
disputes with McKie Jr. (and his siblings) for some years. It appears Jelley
only had to ask McKie Jr. for the names and addresses of his existing
children in order to provide Mark mailed notice. 8 Mark has maintained
below and on appeal that his existence and whereabouts were either known


      7Recall that McKie Sr.’s children settled claims against McKie Sr. in
his capacity as trustee of the Marion Roth Trust, and the payment to them
was made by McKie Sr.’s estate, not the FYR Trust. Although McKie Sr.’s
children agreed to give up their contingent remainder interests in the FYR
Trust as part of the settlement, the primary purpose of the Settlement
Agreement was to settle claims unrelated to the FYR Trust.
      8 Likewise, Jelley should have ascertained the names and addresses of
any children of Diane and Joanne since such persons were readily identifiable
contingent remaindermen and the proposed 1991 Decree adversely affected
their property interests in the FYR Trust by eliminating their interests.

                                      20
or reasonably ascertainable, and respondents do not contest this point.
Under these circumstances, we conclude due process required that Mark be
given mailed notice of the probate hearing that resulted in the 1991 Decree
and an opportunity to object.
      Respondents claim that even if Mark had a property interest in the
FYR Trust, Mullane does not require actual notice “given the remoteness of
his interest.” They rely on the Mullane court’s observation, “Nor do we
consider it unreasonable for the State to dispense with more certain notice to
those beneficiaries whose interests are either conjectural or future or,
although they could be discovered upon investigation, do not in due course of
business come to knowledge of the common trustee.” (Mullane, supra, 339
U.S. at p. 317, italics added.) They argue this observation shows Mark was
not entitled to mailed notice. We are not persuaded.
      First, Mark’s property interest in the FYR Trust was not conjectural.
The MWR Will created a contingent future remainder interest in the trust.
Second, we do not read Mullane to mean due process notice requirements do
not apply to holders of future property interests. In Mullane, the appellant
was “appointed special guardian and attorney for all persons known or
unknown not otherwise appearing who had or might thereafter have any
interest in the income of the common trust fund.” (Mullane, supra, 339 U.S.
at p. 310, italics added.) In this context, when the court spoke of interests
that were “future,” it likely was referring to persons who did not currently
have a property interest in the common fund but might acquire an interest in
the future, not to beneficiaries who currently had future property interests in
the fund. On the other hand, if the court did mean current beneficiaries with
future interests were not entitled to mailed notice, the court may have
determined that, because the common fund involved 113 trusts (id. at p. 309),



                                       21
it was too burdensome to expect the trustee to attempt to identify all current
holders of future interests in the fund; but even if that was the court’s
reasoning, it would not apply here since it cannot be said in this case that it
would have been burdensome for the trustee to ask the three adult children
of McKie Sr. for the names and addresses of their own children. In any
event, we do not think the Mullane court intended to exclude reasonably
ascertainable holders of future property interests from due process
considerations.
      That holders of future property interests are entitled to notice as a
matter of due process is demonstrated by the facts of Estate of Reed. There,
the court recognized that three charity beneficiaries were entitled to notice of
Paul’s probate proceeding in 1954 even though the charities at that time held
only future interests in the remainder of the trust (and their interest only
became present when Bessie died in 1964). (Estate of Reed, supra, 259
Cal.App.2d at pp. 16–17, 22.) The court recognized, “[W]hen the rights of
beneficiaries to a trust are inevitably affected, they are entitled to notice and
are indispensable parties.” (Id at p. 21.) The court did not differentiate
property interests that were present from property interests that were future.
      Respondent’s claim fails for another reason. They argue Mullane does
not require mailed notice given the remoteness of Mark’s interest. But “even
remote interests are entitled to a measure of due process.” (Estate of
Sigourney (2001) 93 Cal.App.4th 593, 604, citing Mullane, supra, 339 U.S. at
pp. 317–318.) In Mullane, the court held that published notice of the
trustee’s petition for settlement of account was sufficient as to “[t]hose
beneficiaries represented by appellant whose interests or whereabouts could
not with due diligence be ascertained.” (Mullane, supra, 339 U.S. at p. 317.)
Here, on the other hand, respondents do not claim Mark was given



                                       22
constructive notice by publication of the hearing that resulted in the 1991
Decree. We believe Mark was entitled to mailed notice under the
circumstances presented, but there can be no doubt he was entitled to some
form of notice, and he was given none.
      Respondents also argue that, in his capacity as executor of McKie Sr.’s
estate, Jelley followed the statutory requirements for notice of probate
proceedings and that should be enough to satisfy due process. But Mullane
itself shows that meeting a state’s statutory notice requirements does not
automatically satisfy federal due process. (Mullane, supra, 339 U.S. at p. 319
[holding “statutory notice to known beneficiaries” was inadequate as a matter
of due process].) Citing Mullane, Division Four of this court has observed,
“Notice given according to statutory ritual will not necessarily meet due
process standards.” (Dohrmann Co. v. Security Savings & Loan Assn. (1970)
8 Cal.App.3d 655, 664.)
      Estate of Sigourney, supra, 93 Cal.App.4th 593, is instructive on this
point. In that case, decedent Sigourney left a will that created a charitable
trust, named the initial two cotrustees, and provided that the successor
trustee was to be selected by the American Psychoanalytic Association (APA).
The executor of Sigourney’s estate filed a petition to construe, amend, and
conform the will and trust in a manner allegedly consistent with Sigourney’s
intent (petition to amend). The petition asked the probate court to amend the
charitable trust provisions so that the APA would not have ultimate
authority to select the successor trustees. But the executor gave no noticeto
the APA of the petition to amend. In 1989, the probate court granted the
petition and amended the terms of the charitable trust as proposed by the
executor. (Id. at pp. 596–598.)




                                      23
      Over 10 years later in 1999, one of the original trustees of the
charitable trust filed a petition for instructions in the matter of Sigourney’s
estate regarding appointing a successor trustee. At that point, the APA
objected and argued the 1989 order amending the terms of the charitable
trust should be declared void because the APA was not given notice of the
proceeding that resulted in the 1989 order. (Estate of Sigourney, supra, 93
Cal.App.4th at pp. 597–599.) The probate court granted the petition over the
objection, finding the APA was not entitled to statutory notice of the earlier
petition to amend, and the APA could not collaterally attack the 1989 order.
(Id. at pp. 600–601.)
      On appeal, the trustee of the charitable trust and the APA raised
various arguments about whether notice of the proceeding that resulted in
the 1989 order was required under various statutes. The Court of Appeal
acknowledged, “None of these statutory paths to a notice requirement leads
to a clear-cut answer. But constitutional due process principles do.” (Estate
of Sigourney, supra, 93 Cal.App.4th at p. 603.) The court then held the APA
was entitled to notice of the 1989 proceedings, finding the APA’s “rights and
powers” related to the selection of a trustee amounted to a property interest
protected by due process. (Id. at p. 604.) The court reasoned that, in 1989,
the executor knew or should have known that the APA would have an
opportunity to exercise its power to select a cotrustee and that, as a result,
the executor should have given the APA notice of the proposed amendment.
The court observed that the lack of notice deprived the APA of the
opportunity to advocate in favor of its interpretation of the will and argue
against the “redraft” of the will proposed by the executor. (Id. at p. 605.) The
court concluded with the observation, “We are constrained to add for the trial
court’s guidance that a trust can be modified if provisions are ambiguous or if



                                       24
‘slavish adherence” to the terms of the trust would defeat the primary
purpose of the trust; but neither former Probate Code section 17200 nor the
common law of trusts permits the creation of a new agreement under the
guise of a modification or reformation.” (Ibid.)
      In Estate of Sigourney, the court held that where a will gave an
organization authority to select future trustees of a testamentary charitable
trust, that organization had a property interest in the selection power created
by the will, and the executor could not simply eliminate the organization’s
interest in the charitable trust under the guise of construing the will without
providing notice to the organization and opportunity to be heard. Similarly,
in this case, the executor could not eliminate Mark’s contingent remainder
interest in the FYR Trust without notice to him under the guise of a petition
for final distribution of McKie Sr.’s estate.
      Finally, respondents suggest that requiring notice in this case will
cause great uncertainty for practitioners administering estates because they
will not be able to rely on compliance with statutory notice requirements to
meet their due process obligations. We do not share their concern. The
reason Mark is entitled to notice of the proceeding that resulted in the 1991
Decree is that the executor of McKie Sr.’s estate used this final order of
distribution as a vehicle to change the terms of the FYR trust in a manner
that eliminated Mark’s property interest. If a reasonably ascertainable
person has a property interest in a testamentary trust, it is not unreasonable
or onerous to require the executor to give notice to that person when the
executor seeks a court order in the testator’s probate case that would change
the terms of the trust from those specified in the testator’s will in a manner
that adversely affects the person’s property interest.




                                        25
C.    The 1991 Decree is Void
      In Estate of Reed, supra, the interested charities were not given notice
of the sixteenth accounting which resulted in the 1954 order finding Paul did
not exercise his power of appointment. The court concluded the failure to
give notice to the charities and an opportunity to defend their interests
meant that the 1954 order was void. (Estate of Reed, supra, 259 Cal.App.2d
at p. 22.) In Estate of Lacy, supra, the court held that if trustees knew of the
existence of the remaindermen when the trustees petitioned for approval of
their account but did not give notice of the hearing to the known
remaindermen, under Mullane and Estate of Reed, the failure of notice
“would render void the order approving the act.” (Estate of Lacy, supra, 54
Cal.App.3d at pp. 188, 190–191.) Here, Mark did not receive notice of the
proceeding at which the court adopted the 1991 Decree and he had no
opportunity to object to the elimination of his property interest in the FYR
Trust. Therefore, the 1991 Decree is void.
      Respondents’ attempts to salvage the 1991 Decree are unavailing.
They argue the 1991 Decree cannot be collaterally attacked, citing Estate of
Callnon (1969) 70 Cal.2d 150, 157, in which the court stated, “If the decree
erroneously interprets the intention of the testator it must be attacked by
appeal and not collaterally. [Citations.] If not corrected by appeal an
‘erroneous decree . . . is as conclusive as a decree that contains no error.’’ ”
Estate of Callnon, however, did not involve a claim of voidness based on lack
of notice. “The doctrine of res judicata is inapplicable to void judgments.”
(Rochin v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228,
1239.) A void judgment “ ‘may be attacked anywhere, directly or collaterally,
whenever it presents itself.’ ” (Andrews v. Superior Court of San Joaquin
County (1946) 29 Cal.2d 208, 214.) In Estate of Reed, for example, the



                                        26
charities successfully moved to set aside a 1954 probate court order for
failure of notice more than a decade later in 1967. (259 Cal.App.2d at p. 18.)
      Respondents next argue Mark’s petition fails because he cannot prove
he would be entitled to a different decree. The simple answer to this is he
would have been entitled to a different decree that did not eliminate his
property interest. Had Mark been given notice of the proposed 1991 Decree,
he could have objected on the ground the Settlement Agreement could not
affect his contingent future remainder interest in the FYR Trust and he could
have argued (successfully) that the proposed change to the default
distribution provision improperly eliminated his property interest.
      Throughout their appellate brief, respondents suggest the equities
favor affirming the probate court’s order denying Mark’s petition because it
would accomplish Yvonne’s apparent intention to leave the remainder of the
FYR Trust solely to James. But respondents offer no authority for the
proposition that such equitable considerations can excuse the taking away of
Mark’s property interest without notice and an opportunity to be heard. 9
      We also agree with Mark’s response to respondents’ claims of equity.
He asserts, “[T]he equities are clearly not in Respondents’ favor. On the one
hand is Mark, a person whose grandfather gave him an interest in the FYR
Trust residue and which interest was taken from him without his knowledge
and without him having any opportunity to object. There was no evidence
before the probate court, and there is none before this Court, that Mark knew
anything about the 1991 Decree of Distribution or its purported effect on his
interest until he inquired of Respondent Jelley about that interest after


      9We further note it was testator McKie Sr.’s expressed intent that, if
Yvonne exercised her power of appointment, she do so “by will duly admitted
to probate and specifically referring to and exercising this power of
appointment,” and Yvonne did not do that.

                                      27
Yvonne’s death. . . . On the other hand is Respondent Jelley, whose law firm
represented Yvonne at least when she filed the Declination of Exercise of
Power of Appointment, whose law firm represents James now, and who was
the petitioner for the original probate proceeding, the petitioner for approval
of the Settlement Agreement in 1990, and the petitioner for the 1991 Decree
of Distribution. He is the person who did not give Mark notice of the Petition
for Final Distribution or the 1991 Decree of Distribution and thereby created
whatever inequity he claims were thereafter visited upon his clients. It is
Mr. Jelley who, through the auspices of the probate court, wrongfully took the
interest that McKie Sr. had given Mark and did so without bothering to give
notice to Mark and an opportunity to be heard. It is hardly unfair to charge
him and his clients with the consequences and not reward them for
wrongfully taking Mark’s interest and then hiding such action from him for
the remainder of Yvonne’s life.”
                                DISPOSITION
      The order denying the petition filed September 27, 2018, is reversed,
and the matter is remanded for further proceedings consistent with this
opinion. Respondents’ request for judicial notice is denied. 10




      10 The documents respondents ask us to take judicial notice of are not
relevant to the issues raised in this appeal. (See Hill v. San Jose Family
Housing Partners, LLC (2011) 198 Cal.App.4th 764, 770 [declining to take
judicial notice of a document that was “not relevant to our consideration of
the issues raised on appeal”]; Mangini v. R.J. Reynolds Tobacco Co. (1994) 7
Cal.4th 1057, 1063 [matters subject to judicial notice must be relevant to
issues raised on appeal], overruled on another ground in In re Tobacco Cases
II (2007) 41 Cal.4th 1257, 1276.)

                                       28
                                 _________________________
                                 Miller, J.


We concur:


_________________________
Kline, P.J.


_________________________
Stewart, J.




A155742, Roth v. Jelley




                            29
Trial Court: Superior Court of Contra Costa County


Trial Judge: Hon. John H. Sugiyama


Law Offices of James A. Bush, P.C., James A. Bush, for Plaintiff and
Appellant


Donahue Fitzgerald LLP, Lawrence K. Rockwell, Daniel B. Newbold, Lorin B.
Bender, for Defendants and Respondents




A155742, Roth v. Jelley




                                     30
