Urick v. Urick

Filed 10/5/17
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

WILLIS E. URICK, III, B278257

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BP171001)
v.

DANA URICK, as Trustee, etc.,

Defendant and Respondent.

APPEAL from order of the Superior Court of Los
Angeles County, Lesley C. Green, Judge. Reversed.
Meserve, Mumper & Hughes, Michael A. Angel and
Cliff Melnick, for Plaintiff and Appellant.
Sacks, Glazier, Franklin & Lodise, Robert N. Sacks and
Eunice Y. Lim, for Defendant and Respondent.
__________________________
 A beneficiary filed a petition for instructions as to
whether the “no contest” clause of his mother’s trust had
been violated after his sister sought to reform the trust to
eliminate his interest. The sister, in her capacity as trustee,
filed a special motion to strike the petition under Code of
Civil Procedure section 425.16 (the anti-SLAPP statute),1
which the probate court granted. On appeal, the brother
recognizes that petitions to enforce a no contest clause under
the Probate Code necessarily satisfy the first step of the
anti-SLAPP analysis, because they are based on protected
petitioning activity. He contends that petitions to enforce a
no contest clause should be exempt from the anti-SLAPP
statute, however, because applying the anti-SLAPP statute
in this context undermines the purposes of both statutory
schemes. He also contends that he showed a probability of
prevailing under the second step of the analysis, because his
sister filed the reformation petition in her individual
capacity, it was a direct contest and the grounds included
fraud, and she had no probable cause to file it. Although we
appreciate the strength of the argument in favor of
exemption, the plain language of the anti-SLAPP statute
applies to a petition to enforce a no contest clause. We
conclude, however, that the brother established the minimal

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

2
merit necessary to show a probability of success at this stage
of the proceedings. The order is reversed.

FACTS AND PROCEDURAL HISTORY

Allyne Urick’s Estate Plan

On March 8, 2013, Allyne Urick executed the Allyne L.
Urick Trust Agreement.2 On her death, her daughter Dana
Urick would be the successor trustee. If Dana should cease
to serve, Allyne’s son Willis E. Urick, III would serve as
trustee. The trust was structured as a charitable remainder
annuity trust, which pays a fixed amount of income to the
donor’s beneficiaries and gives the remainder to a charity.
At Allyne’s death, after certain payments and distributions
from the trust estate, the remaining trust principal would be
annuitized and the income distributed in equal shares to
Willis, Dana, and Dana’s son Trentyn Urick-Stasa. Upon
termination of the annuity, the remaining principal would be
distributed to Phillips Academy Andover, “In Memory of
Willis E. Urick, Jr., Class of 1934.” Allyne executed a pour-
over will as well.
On January 3, 2014, Allyne addressed a handwritten
note “[t]o whom it may concern,” which stated, “I hereby

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

3
delete my son Willis E. Urick III from the assets of my
Family Trust, established March 8, 2013. [¶] I have shared
my reasons in a document which is in a sealed envelope, to
be opened and read in the event of a contest.”
On August 6, 2014, however, Allyne executed an
“Amendment and Full Restatement of the Allyne L. Urick
Trust Agreement dated March 8, 2013.” It stated that its
provisions “shall control over all earlier statement of the
Trust provisions.” Dana was appointed as the successor
trustee. If she ceased to serve, Wells Fargo Bank was named
as successor trustee. The restated trust was also a
charitable remainder annuity trust. After certain payments
and distributions from the trust estate, the remaining
principal was to be annuitized and the income generated
would be distributed in equal shares to Willis, Dana, and
Urick-Stasa. Payment of the annuity amount was to cease
“upon the earliest of [Urick-Stasa] attaining the age of
thirty-five (35) years, upon the death of the last surviving
named recipient of a share of the annuity amount or upon
the latest date allowed by Internal Revenue Code §[]664.”
Distributions to Urick-Stasa were to be held in trust and
distributed on a schedule. When the payment of the annuity
amount ceased, the remaining principal and any
undistributed income was to be distributed to Phillips
Academy in memory of Willis E. Urick, Jr., Class of 1934.
The trust contained a no contest clause providing, “In
the event that any Beneficiary or other individual who is
specifically not named as a Beneficiary, including

4
grandchildren or spouses of the Trustor’s children, shall
contest any aspect of this Trust or attempt to set aside,
nullify, or void the Trust or the distribution thereof in any
way, whether successfully or unsuccessfully, then the
Trustor directs that such rights of such person shall be
ascertained as it would have been determined had that
person predeceased the execution of this instrument without
living issue.”
Dana was appointed as the successor trustee under the
trust. Allyne passed away on August 18, 2015, and Dana
assumed the role of trustee.

Petition for Reformation of Trust

On February 16, 2016, Dana filed a petition to reform
the trust under Probate Code sections 17000, subdivision
(b)(1), and 17200, subdivisions (b)(3), (b)(4), and (b)(13)–(14).
The petition stated that “Petitioner, Dana Urick, Trustee of
The Allyne L. Urick Trust,” sought to reform the trust on the
grounds that its terms were misrepresented by the drafter,
Allyne had mistakenly signed the trust believing it reflected
her intent, and the trust did not contain the distribution
plan that she requested of the drafting attorney. The
petition noted that mistake of law is a ground for
reformation under Civil Code sections 1578, and that a
written instrument may be reformed on the application of an
aggrieved party under Civil Code section 3399. Dana
proposed to reform the trust to correctly state the trustor’s

5
intent as follows: after distributing specific bequests and
personal property, the remaining principal would be divided
into two shares, with one share for Dana and one for Urick-
Stasa. The assets would be held in trust for 10 years, then
distributed outright to Dana and Urick-Stasa. If no
beneficiaries survived, the assets would be distributed in
equal shares to four institutions, one of which was Phillips
Academy. No mention was made of the distribution to
Phillips Academy being in memoriam.
The attorney caption at the top of the petition and the
attorney signature block on the final page stated that the
attorneys represented Dana, but did not mention her role as
trustee. Dana signed a verification of the petition which did
not state that she was signing it as trustee.
Dana attached several documents to the reformation
petition, including a letter to Allyne from her attorney Mark
Boykin dated December 14, 2012. Boykin confirmed that
Allyne wanted her son and daughter to receive a fixed
percentage of her estate in the form of an annuity for the
rest of their lives and wanted her grandson to receive a
substantial sum in trust, with the remainder to Phillips
Academy. She wanted to reduce potential estate taxes, but
was more concerned about providing for her grandson and
not having her children receive a large sum of money at her
death.
In a letter dated January 7, 2013, Boykin provided
Allyne with a draft of the trust. He confirmed that Allyne
wanted Willis and Dana to receive an annuity of five percent

6
of her net estate for their lifetimes, with the remainder to
Urick-Stasa. Allyne responded that she wanted Urick-Stasa
to have an equal annuity share to her children. Boykin
explained that he could complete the trust as she asked, but
giving Urick-Stasa a present annuity interest in addition to
the remainder interest could lead to substantial additional
taxes.
In a letter dated February 6, 2013, Boykin enclosed a
draft for Allyne. He explained that he used a charitable
remainder trust based on their telephone conversation in
which she stated that she wanted Phillips Academy to
receive the remainder, even though the gift would probably
not qualify for charitable treatment.
Allyne signed the trust on March 8, 2013. The trust
was funded with her residence, an apartment building, and
several investment accounts. She had a number of bank
accounts payable on death through beneficiary designations
which were not placed in the trust.
After Allyne’s handwritten note on January 3, 2014,
expressing her intent to disinherit Willis, Boykin prepared
an amendment to the trust that made Dana the sole trustee
and distributed annuity amounts to Dana and Urick-Stasa
only. The amendment was never signed. He prepared a
similar amendment in February 2014, which was also never
signed. In August 2014, Boykin prepared the fully restated
trust, which Allyne executed.
Willis and Phillips Academy each objected to the
reformation petition.

7
Petition for Instructions as to Violation of No Contest
Clause

On May 31, 2016, Willis filed a petition for instructions
as to whether Dana’s petition violated the no contest clause
of the trust. He argued that the reformation petition was a
direct contest to invalidate the distributive provisions of the
trust on the basis of fraud, undue influence, and duress, in
violation of Probate Code section 21310, subdivision (b)(4).
Willis sought instructions from the court as to whether the
reformation petition constituted a direct contest under
Probate Code section 21310 et seq., and whether Dana
lacked probable cause to file the petition.

Anti-SLAPP Motion

On August 4, 2016, Dana filed an anti-SLAPP motion
in her capacity as trustee. She argued that the anti-SLAPP
statute applied because filing a petition to reform the trust
was protected litigation activity under the anti-SLAPP
statute. Willis could not show a probability of prevailing on
the merits, because: (1) she filed the reformation petition in
her capacity as trustee; (2) it was not a direct contest,
because she sought to reform the trust on the ground of
mistake; and (3) she had probable cause for filing the
petition.

8
Opposition to Anti-SLAPP Motion

Willis opposed the anti-SLAPP motion. He argued that
the anti-SLAPP statute should not apply to the no contest
provisions of the Probate Code. Even if the statute applied,
he had a reasonable probability of prevailing on the merits.
The evidence showed Dana filed the reformation petition in
her individual capacity as a beneficiary rather than as an
independent trustee. In her petition, for example, she
alleged standing as an aggrieved party under Civil Code
section 3399. Dana could only claim to be an aggrieved
party in her capacity as a beneficiary. Dana’s petition was a
direct contest because it sought to invalidate the distributive
provisions of the trust by disinheriting her brother and the
charity. She lacked probable cause because the restated
trust had superseded the handwritten amendment
disinheriting Willis.
Boykin had videotaped Allyne’s execution of her
original estate plan in 2013. Willis submitted a transcript of
the discussion and the execution of the documents. Allyne
stated that she did not want to leave her estate outright to
her two children. Boykin explained that Dana, Willis, and
Urick-Stasa would receive five percent of the trust for the
rest of their lives, or until Urick-Stasa reached age 35.
Allyne corrected him and said it would be five percent for
each child. They went off the record. On the record, Boykin
stated, “Mrs. Urick, you and I had a discussion off the record
about your desires for the distribution of your estate.”

9
Allyne answered, “That’s correct.” Boykin continued, “And
it’s not five percent to each of your three children.” Allyne
said, “I understand that now.” Boykin responded, “And you
understand that it’s five percent of the entire value of the
trust every year.” Allyne answered, “Correct.” Boykin
added, “Split three ways.” Allyne said, “Right. Got it.”
Boykin asked, “And that’s what you want to do?” Allyne
said, “Yes, I do.” Boykin said, “Okay.” Allyne added, “That
is quite a bit of money from where I am sitting.” Boykin
continued, “All right. And then that is going to continue
until both of your children have passed away and [Urick-
Stasa] attains age 35 years; correct?” Allyne said, “Correct.”
Boykin asked, “Then what do you want to have happen
to the trust fund? [¶] Where would it be distributed at the
point [Urick-Stasa] reached 35?” They had a discussion off
the record about the length of time that the annuity would
be paid to Urick-Stasa. Allyne thought she might want to
extend it. She wanted to confer and ask for Boykin’s advice.
Boykin explained that the remainder going to Phillips
Academy would not be zero, and would probably be
somewhere between three and ten million dollars. Allyne
responded, “Oh, that’s a lot of dough right there.” She
decided that they would have to give some consideration to
the distribution, but at present she would leave it as it was
written. Before Allyne signed the documents, Boykin asked
if she had an opportunity to review them that morning and
previously. She said that she did. Boykin asked, “And we
had discussion about [Urick-Stasa’s] distribution at age 35?”

10
Allyne said they had. Boykin asked, “And you are now okay
with that; correct?” Allyne answered, “Yes. At the present
time. Yes.” Allyne signed the documents.

Reply and Trial Court Ruling

Dana, in her capacity as trustee, filed a reply. She
filed a notice of joinder in her individual capacity. Willis
opposed the joinder motion. A hearing was held on
September 19, 2016. The court denied the joinder motion
and took the matter under submission.
On September 28, 2016, the trial court issued a minute
order granting the anti-SLAPP motion. The court found the
disinheritance petition arose out of protected litigation
activity. The court further found that Willis had failed to
show a probability of prevailing because Dana’s petition was
brought in her capacity as trustee. It was not a direct
contest because she brought it on the grounds of mistake and
misrepresentation, not duress, fraud, or undue influence.
The trial court granted the motion to strike and awarded
attorney fees to Dana. Willis filed a timely notice of appeal
from the order granting the motion to strike. On November
18, 2016, the trial court awarded attorney fees to Dana of
$24,795.00 and costs of $83.50.

11
 DISCUSSION

Anti-SLAPP Statute and Standard of Review

“Courts construe the anti-SLAPP statute broadly to
protect the constitutional rights of petition and free speech.”
(Anderson v. Geist (2015) 236 Cal.App.4th 79, 84.)
“Resolution of an anti-SLAPP motion involves two steps.”
(Baral v. Schnitt (2016) 1 Cal.5th 376, 384 (Baral).) In the
first step, the moving party must establish that the claim at
issue arises from free speech or petitioning activity protected
by section 425.16. (Ibid.) Under section 425.16, an “‘act in
furtherance of a person’s right of petition or free speech
under the United States or California Constitution in
connection with a public issue’ includes: (1) any written or
oral statement or writing made before a legislative,
executive, or judicial proceeding, or any other official
proceeding authorized by law, (2) any written or oral
statement or writing made in connection with an issue under
consideration or review by a legislative, executive, or judicial
body, or any other official proceeding authorized by law, (3)
any written or oral statement or writing made in a place
open to the public or a public forum in connection with an
issue of public interest, or (4) any other conduct in
furtherance of the exercise of the constitutional right of
petition or the constitutional right of free speech in
connection with a public issue or an issue of public interest.”
(Code Civ. Proc., § 425.16, subd. (e).)

12
 If the moving party establishes that the claim arises
from protected activity, the burden shifts to the opposing
party to demonstrate a probability of prevailing on the
merits. (Baral, supra, 1 Cal.5th at p. 384.) The second step
has been compared to a “summary-judgment-like procedure.”
(Taus v. Loftus (2007) 40 Cal.4th 683, 714; Baral, supra, 1
Cal.5th at p. 384.) “The court does not weigh evidence or
resolve conflicting factual claims. Its inquiry is limited to
whether the plaintiff has stated a legally sufficient claim and
made a prima facie showing sufficient to sustain a favorable
judgment. It accepts the plaintiff’s evidence as true, and
evaluates the defendant’s showing only to determine if it
defeats the plaintiff’s claim as a matter of law. [Citation.]
‘[C]laims with the requisite minimal merit may proceed.’
[Citation.]” (Baral, supra, at pp.384–385.)
We review an order granting or denying an anti-
SLAPP motion de novo. (Park v. Board of Trustees of
California State University (2017) 2 Cal.5th 1057, 1067.)
“‘We exercise our independent judgment to determine not
only whether the anti-SLAPP statute applies, but whether
the complainant has established a reasonable probability of
prevailing on the merits. [Citation.]’ [Citation.]” (Greco v.
Greco (2016) 2 Cal.App.5th 810, 820 (Greco).)

No Contest Clauses

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

13
beneficiary for filing a pleading in any court.” (Prob. Code,
§ 21310, subd. (c).)3
“A no contest clause ‘essentially acts as a
disinheritance device, i.e., if a beneficiary contests or seeks
to impair or invalidate the trust instrument or its provisions,
the beneficiary will be disinherited and thus may not take
the gift or devise provided under the instrument.’ [Citation.]
‘The purpose of no contest clauses “is to discourage will
contests by imposing a penalty of forfeiture against
beneficiaries who challenge the will.”’ [Citation.] ‘In
essence, a no contest clause conditions a beneficiary’s right
to take the share provided to that beneficiary under such an
instrument upon the beneficiary’s agreement to acquiesce to
the terms of the instrument. [Citation.]’ . . . [Citation.]”
(Betts v. City National Bank (2007) 156 Cal.App.4th 222,
231, fn. omitted.)
“No contest clauses, whether in wills or trusts, have
long been held valid in California. [Citations.] Such clauses
promote the public policies of honoring the intent of the
donor and discouraging litigation by persons whose
expectations are frustrated by the donative scheme of the
instrument. [Citation.] [¶] In tension with these public
policy interests are the policy interests of avoiding
forfeitures and promoting full access of the courts to all

3 “‘Pleading’ means a petition, complaint, cross-
complaint, objection, answer, response, or claim.” (Prob.
Code, § 21310, subd. (d).)

14
relevant information concerning the validity and effect of a
will, trust, or other instrument. [Citation.] In light of these
opposing interests, the common law in California recognized
the enforceability of no contest clauses, albeit strictly
construed, ‘so long as the condition was not prohibited by
some law or opposed to public policy.’ [Citation.]” (Donkin v.
Donkin (2013) 58 Cal.4th 412, 422 (Donkin).)
The California Law Revision Commission, after
studying the no contest law, issued a report in 2008
recommending retention of the statute with significant
revisions. (Recommendation: Revision of No Contest Clause
Statute (Jan. 2008) 37 Cal. Law Revision Com. Rep. (2007)
pp. 359, 391–399 (Revision Rep.).) “According to the
Commission, no contest clauses are still supported by a
number of important public policy interests, including
respecting a transferor’s ability to control the use and
disposition of his or her own property and to avoid the cost,
delay, public exposure, and additional discord between
beneficiaries involved in litigation over the transferor’s
estate plan. (Revision Rep., supra, at pp. 364–366.)”
(Donkin, supra, 58 Cal.4th at pp. 424–425.)
“The Commission acknowledged, however, that other
public policy concerns ‘can trump a transferor’s intention to
create a no contest clause.’ (Revision Rep., supra, 37 Cal.
Law Revision Com. Rep. at p. 369.) It noted that as a matter
of general public policy, ‘a person should have access to the
courts to remedy a wrong or protect important rights.’
(Ibid.) The Commission stated that a no contest clause

15
should be applied conservatively to avoid a forfeiture that is
not intended by the transferor. (Id., at pp. 369–370.) The
Commission agreed that judicial proceedings may be
necessary to determine a transferor’s intentions. (Id., at pp.
370–372.) And it emphasized that important public policy
interests support judicial supervision of an executor, trustee,
or other fiduciary. (Id., at p. 372.)” (Donkin, supra, 58
Cal.4th at p. 425.)
To resolve uncertainty, the Commission recommended
simplifying the statute by defining the types of contests
narrowly. (Donkin, supra, 58 Cal.4th at p. 425.) “‘A
beneficiary should not be punished for bringing an action to
ensure the proper interpretation, reformation, or
administration of an estate plan. Such actions serve the
public policy of facilitating the fair and efficient
administration of estates and help to effectuate the
transferor’s intentions . . . . [¶] The proposed law would
merely extend that principle to its logical end . . . .’
([Revision Rep., supra, 37 Cal. Law Revision Com. Rep.] at p.
395.)” (Id. at p. 426.) The Legislature repealed and replaced
the statutes governing no contest clauses based on the
recommendations of the Commission. (Stats. 2008, ch. 174,
§§ 1, 2, p. 567 [repealing former § 21300 et seq., and adding
§ 21310 et seq.]; Sen. Rules Com., Off. of Sen. Floor
Analyses, Unfinished Business Analysis of Sen. Bill No. 1264
(2007–2008 Reg. Sess.) as amended June 18, 2008; Donkin,
supra, at pp. 426–427.)

16
 Under the current law, a no contest clause will only be
enforced against a pleading that challenges certain property
transfers, a creditor’s claim, or “a direct contest that is
brought without probable cause.” (Prob. Code, § 21311,
subd. (a)(1).)4 A “direct contest” is a contest that alleges one
or more terms of a protected instrument are invalid based on
a ground listed in Probate Code section 21310, including
“[m]enace, duress, fraud, or undue influence.” (Id., § 21310,
subd. (b)(4).) “For the purposes of this section, probable
cause exists if, at the time of filing a contest, the facts known

4 Probate Code section 21311 provides in full, “(a) A no
contest clause shall only be enforced against the following
types of contests:
(1) A direct contest that is brought without
probable cause.
(2) A pleading to challenge a transfer of property
on the grounds that it was not the transferor’s property at
the time of the transfer. A no contest clause shall only be
enforced under this paragraph if the no contest clause
expressly provides for that application.
(3) The filing of a creditor’s claim or prosecution
of an action based on it. A no contest clause shall only be
enforced under this paragraph if the no contest clause
expressly provides for that application.
(b) For the purposes of this section, probable cause
exists if, at the time of filing a contest, the facts known to
the contestant would cause a reasonable person to believe
that there is a reasonable likelihood that the requested relief
will be granted after an opportunity for further investigation
or discovery.”

17
to the contestant would cause a reasonable person to believe
that there is a reasonable likelihood that the requested relief
will be granted after an opportunity for further investigation
or discovery.” (Id., § 21311, subd. (b).)

Protected Activity

Willis contends the anti-SLAPP statute should not be
applied to a petition to enforce a no contest clause. His
argument is not unreasonable, but it ultimately fails, as we
cannot disregard the plain language of the anti-SLAPP
statute.
A cause of action arises from a protected activity under
the anti-SLAPP statute if it arises from “any written or oral
statement or writing made before a . . . judicial proceeding.”
(Code Civ. Proc., § 425.16, subd. (e)(1).) A “contest” is “a
pleading filed with the court by a beneficiary that would
result in a penalty under a no contest clause, if the no
contest clause is enforced.” (Prob. Code, § 21310, subd. (a).)
Willis’s petition alleging a violation of the no contest clause
arises from a pleading filed with the probate court and
therefore is subject to the anti-SLAPP statute.
Willis contends applying the anti-SLAPP statute in
proceedings to enforce no contest clauses encourages
litigation and discord between beneficiaries and increases
litigation costs, contrary to the policies behind the no contest
provisions and the intent of testators. Willis also notes that
specific rules unique to the Probate Code should control over

18
general provisions of the Code of Civil Procedure. “The
general rules of the Code of Civil Procedure do not apply
when the Probate Code provides special rules. In the
absence of a special rule, the general rules of practice apply
to matters of procedure in the probate court. . . . [¶] Those
cases which have held provisions of the Code of Civil
Procedure inapplicable in probate proceedings involve
provisions of the Code of Civil Procedure which are
inconsistent with specific provisions of the Probate Code.
(See, e.g., Estate of Neilson[(1962)] 57 Cal.2d 733; Code Civ.
Proc., § 1033 inconsistent with Prob. Code, § 1232); Estate of
Wallace (1977) 74 Cal.App.3d 196, 201; Code Civ. Proc.,
§ 1003 inconsistent with Prob. Code, § 1233.)” (Swaithes v.
Superior Court (1989) 212 Cal.App.3d 1082, 1088–1089.)
We conclude that although the policies underlying the
no contest provisions have been carefully balanced by the
Legislature and the anti-SLAPP procedures may impede
some of those goals, including increasing litigation costs and
potential delay, no provision of the Probate Code has been
shown to be inconsistent with the anti-SLAPP provisions.
The language of the anti-SLAPP statute is clear and
unambiguous, and it has been applied to other probate court
petitions. (Greco, supra, 2 Cal.App.5th at pp. 823–826 [anti-
SLAPP statute applied to a claim for constructive fraud, but
trustee’s use of trust funds to pursue litigation against
beneficiaries was not a protected activity].) There may be
valid reasons to exempt enforcement of no contest clauses
from the anti-SLAPP statute, but if so, it is for the

19
Legislature to create an exception. (See generally Cassel v.
Superior Court (2011) 51 Cal.4th 113, 136 [“We express no
view about whether the statutory language, thus applied,
ideally balances the competing concerns or represents the
soundest public policy. Such is not our responsibility or our
province. We simply conclude, as a matter of statutory
construction, that application of the statutes’ plain terms to
the circumstances of this case does not produce absurd
results that are clearly contrary to the Legislature’s
intent.”].) The trial court properly found that Dana’s
reformation petition was a protected activity under the anti-
SLAPP statute.

Probability of Prevailing on Merits

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

A. Filing as a Beneficiary

A contest is a pleading filed with the court by a
beneficiary. Willis contends there is ample evidence to meet
his burden to establish that Dana filed the reformation
petition as a beneficiary of the trust. We agree.
The petition identified Dana as trustee only once in the
opening sentence, while every other reference to Dana, and
the petition as a whole, was consistent with her interest as a

20
beneficiary. The attorney caption and the attorney
signature block stated that the attorneys represented Dana,
without identifying her as trustee. Dana signed a
verification of the reformation petition which did not state
that she was filing as trustee. The petition alleged that
under Civil Code section 3399, a written instrument could be
reformed based on the application of an aggrieved party.
Dana was aggrieved as a beneficiary, not as a trustee. The
goal of the petition was to disinherit Willis and substantially
reduce any potential gift to Phillips Academy, making the
distribution of assets far more lucrative for Dana and her
son. The petition was consistent with the interests of Dana
as a beneficiary, not with her fiduciary duties as a trustee to
the beneficiaries, including Willis and Phillips Academy,
whose interests would be impaired or eliminated by the
reformation petition. Viewing the evidence in the light most
favorable to Willis, he made a prima facie showing that
Dana filed the reformation petition in her capacity as a
beneficiary, or in her dual capacity as trustee and
beneficiary.
Dana’s evidence, although conflicting, did not defeat
Willis’s claim as a matter of law. Dana noted that she was
not required to file the reformation petition as an aggrieved
party under Civil Code section 3399, because she had
standing to file it as trustee under Probate Code section
17200. Dana invoked Civil Code section 3399 in her petition,
however, which was evidence that she filed the petition as a
beneficiary. We also note that both trustees and

21
beneficiaries may petition the probate court under Probate
Code section 17200, so the statute does not definitively
support one interpretation over the other.

B. Grounds for Direct Contest

Willis contends he made a prima facie showing that the
reformation petition constituted a direct contest on the
ground of fraud. This is correct. There is sufficient evidence
to conclude that one of the grounds for the reformation
petition was fraud.
“‘The elements of fraud, which give rise to the tort
action for deceit, are (a) misrepresentation (false
representation, concealment, or nondisclosure); (b)
knowledge of falsity (or “scienter”); (c) intent to defraud, i.e.,
to induce reliance; (d) justifiable reliance; and (e) resulting
damage.’ [Citations.]” (Lazar v. Superior Court (1996) 12
Cal.4th 631, 638.)
The grounds for reformation alleged in the petition
included misrepresentation and nondisclosure. On the first
page of the petition, Dana alleged that the trust was not
drafted in accordance with Allyne’s intent and the terms of
the trust were misrepresented by the drafter. Dana later
alleged her belief that Boykin made a mistake, or “of his own
accord, Mr. Boykin had Allyne sign a document that did not
reflect her wishes with respect to the distributions upon her
death, the removal of her son as a beneficiary and trustee, or
the amount the named charity would ultimately get were

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Dana and [Urick-Stasa] both deceased.” The petition alleged
that Boykin removed Willis as a trustee but not a
beneficiary, slipped it by Allyne, and had her sign the
restated trust. Boykin knew some of the provisions might
not work, but had Allyne sign the restated trust anyway,
knowing Allyne thought the trust was being distributed to
Dana and Urick-Stasa. These are allegations of
misrepresentations made by Boykin, knowing they were
false, with the intent that Allyne would rely on them. The
petition also alleges justifiable reliance, in that Allyne
believed she was being properly advised and the trust was
drafted as she had requested. The resulting damages
alleged were that the trust provisions did not reflect the true
intent of the trustor. Willis made a prima facie showing that
the grounds alleged in the reformation petition included
fraud in the form of misrepresentation and nondisclosure.
Dana contends the reformation petition was not a
direct contest because she did not seek to invalidate the
trust, but merely to reform the trust to reflect the trustor’s
intent. This is incorrect. A direct contest is a pleading that
alleges one or more terms of a protected instrument are
invalid based on a ground set forth in Probate Code section
21310. Dana’s reformation petition sought to invalidate the
terms providing distributions to Willis as a result of Boykin’s
misrepresentations or concealment. The effect of Dana’s
proposed action—to invalidate certain distributive provisions
of the trust on grounds enumerated in section 21310—
controls over the label that she gave to the remedy that she

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

C. Probable Cause

Willis contends that Dana brought the reformation
petition without probable cause. We conclude Willis made a
prima facie showing that Dana did not have probable cause
to file the reformation petition.5
Allyne’s original trust provided after her death for an
annual income to her children for life and to her grandchild
in trust until age 35. She explained on videotape that she
did not want to leave her estate to her children outright.
Boykin explained the trust provisions to her on and off
camera. She wanted to consider the distribution age for her
grandson further, which she did, and she executed the trust
documents. Around the holidays in 2014, Allyne
disinherited her son by way of a handwritten amendment to
her trust. Boykin prepared two separate amendments to
disinherit Willis, but Allyne did not sign them. Instead, she
fully restated her trust more than a year later, superseding
her handwritten amendment and reinstating her son as a
beneficiary. The restated trust continued to be structured as

5 The trial court did not reach the issue of probable
cause. Because we review of the sufficiency of the showing
under the second prong of the anti-SLAPP analysis de novo,
we independently resolve the issue.

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a charitable remainder annuity trust. Thus, the original
trust and the restated trust both specify Allyne’s intent to
provide interests to Dana, Willis, Urick-Stasa, and Phillips
Academy. Both trusts also provided for Urick-Stasa’s
interest to remain in trust for him until age 35.
Willis has demonstrated a reasonable probability of
prevailing on the issue of probable cause. Although Allyne
handwrote an amendment to remove him as a beneficiary,
she did not sign later amendments Boykin prepared to
disinherit him. Instead, Allyne chose to restate her trust in
full to supersede her handwritten amendment and expressly
reinstate Willis as a beneficiary. Dana had no other
evidence to support her claim that her mother intended
Dana and Urick-Stasa to be the sole beneficiaries of her
trust. Willis has sufficiently established at this stage of the
proceedings that a reasonable person would not believe,
based on the facts known to Dana, that there was a
reasonable likelihood that the trust would be reformed to
provide solely for Dana and her son.
Even if the handwritten amendment could be the basis
for a reasonable person to believe that after further
discovery the probate court was likely to eliminate Willis’s
interest, there were no facts in the record that would cause a
reasonable person to believe the probate court would reform
Phillips Academy’s interest as the remainder beneficiary.
Allyne twice signed trust instruments that provided a
substantial remainder to Phillips Academy. There is no
evidence that she intended to make an outright gift to Dana

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and Urick-Stasa in 10 years, with a much smaller contingent
gift to Phillips Academy in the event of both their deaths.
Allyne wanted her grandson’s share held in trust for him
until age 35. Under the proposed reformation, Urick-Stasa’s
share would be distributed at age 18.
Dana contends that she had probable cause to file the
reformation petition because she had reason to believe the
relief would be granted after an opportunity for further
investigation or discovery. She contends the grounds for
reforming the trust will require further inquiry into Allyne’s
communications to determine whether the trust reflects
Allyne’s testamentary intent. At this stage, Dana has fallen
well short of establishing as a matter of law that she had a
reasonable basis to believe the relief she requested would be
granted based on the information available to her or after
further discovery. Willis presented evidence with the
minimal merit necessary to overcome the anti-SLAPP
motion.
Because the order granting the motion to strike must
be reversed, the order awarding attorney fees must be
reversed as well.

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 DISPOSITION

The order granting the motion to strike and the order
awarding attorney fees are reversed. The probate court is
directed to enter a new and different order denying the
motion to strike. Appellant Willis E. Urick, III is awarded
his costs on appeal.

KRIEGLER, Acting P.J.

We concur:

BAKER, J.

DUNNING, J.

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

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