Urick v. Urick CA2/5

Filed 9/20/22 Urick v. Urick CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

WILLIS E. URICK, III, B313980, B315720

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BP171001
v. consolidated with
Nos. 16STPB00850,
DANA URICK, 16STPB00852,
16STPB00854)
Defendant and Appellant.

APPEALS from orders of the Superior Court of Los Angeles
County, Paul T. Suzuki, Judge. (Retired judge of the L.A. Sup.
Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the
Cal. Const.) Reversed and remanded.
Horvitz & Levy, John A. Taylor, Jr., and Rebecca G. Powell;
Higgs, Fletcher & Mack, John Morris, Roland H. Achtel and
Rachel M. Garrard for Defendant and Appellant.
Snell & Wilmer, Michael A. Angel, Roger A. Grad, Jing
Hua; Greines, Martin, Stein & Richland and Robin Meadow for
Plaintiff and Respondent.
 Appellant Dana Urick’s attorney was hospitalized 10 days
before trial on two complex probate petitions with potentially
devastating consequences, which had been filed against Dana by
her brother, respondent Willis E. Urick, III.1 The probate court
denied Dana’s request for a continuance, and after holding a trial
with no appearance for Dana, granted petitions to remove Dana
as trustee of their mother’s trust and to disinherit her. Dana
appeals from the orders granting the petitions on the ground that
the trial court abused its discretion by denying her request for a
continuance and it is reasonably probable that she would have
obtained a more favorable result.
We conclude that it was an abuse of discretion under the
circumstances of this case to deny the request for a continuance,
and to the extent that Dana must show prejudice, it is highly
likely that she would have obtained a more favorable outcome
had the continuance been granted. To meet his burden to show
Dana violated the “no contest” clause of the trust, Willis needed
to prove Dana filed a direct contest to the trust without probable
cause. Specifically, in this case, he had to show that Dana filed a
petition to reform the trust in her individual capacity as a
beneficiary based on specific statutory grounds, including fraud,
duress, or undue influence, and that she had no probable cause to
believe the probate court would grant the relief that she sought
with additional investigation or discovery. The record reveals
that Dana intended to present evidence at trial that, if credited
by the trier of fact, conclusively established she filed the pleading

1 Because multiple parties share the last name Urick, they
will be referred to by their first names for ease of reference.
Phillips Academy Andover joined in the petitions in the probate
court, but has not filed a respondent’s brief on appeal.

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solely in her capacity as trustee. In addition, Dana’s evidence
reflected that her pleading was based on allegations of mistake,
and any stray allegations suggesting fraud, undue influence, or
duress were merely incidental background allegations for context.
There is a reasonable chance the trier of fact would find, based on
the totality of the evidence, that someone in Dana’s position
would have believed there was a reasonable likelihood her
petition to reform the trust would be granted after an opportunity
for further investigation or discovery. The probate court’s order
granting the petition for removal and surcharge was based in
significant part on the order granting the no contest petition.
Therefore, both orders must be reversed, and the matter
remanded for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND2

Drafts by Attorney William Eick

In the summer of 2012, Allyne Urick met with attorney
William Eick to create an estate plan. Based on their
conversations, he provided a draft for her trust in July 2012. At
Allyne’s death, the trustee would distribute a specific dollar
amount of $600,000 to her son Willis and $1,000,000 to a trust for
her grandson Trentyn (Dana’s son). If Trentyn died before

2 On its own motion, the court takes judicial notice of the
published opinion in Urick v. Urick (2017) 15 Cal.App.5th 1182
(Urick I), as well as the unpublished opinions in Urick v. Boykin
(Mar. 23, 2020, B295773), Urick v. Elkins Kalt Weintraub Reuben
Gartside, LLP (Nov. 18, 2021, B310056), and Urick v. Lewitt
(May 23, 2022, B312238).

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age 45, the assets in his trust would be distributed to Philips
Academy Andover. The remainder of the assets in Allyne’s trust
would be distributed to her daughter Dana, or if she predeceased
Allyne, to Trentyn’s trust.
In August 2012, Eick provided a revised draft. Instead of a
specific dollar amount to Willis, the draft provided $2,000,000 to
a trust for Willis, from which Willis would receive $5,000 per
month. Eick explained that by placing the money in trust, Willis
could not give the assets to his wife or their children. He noted
that Willis was the designated beneficiary on some of her bank
accounts.
In September 2012, at Allyne’s request, Eick provided
another draft of her estate plan that removed Willis as a
beneficiary. Eick sent a draft in October 2012, which also did not
provide anything to Willis. Eick noted that because Willis
received his share of assets outside of the trust, the no contest
provision of the trust would have no effect on his share and there
would be no incentive for him to refrain from filing a lawsuit to
contest the trust or allege alienation of affection.

Drafts by Attorney Mark Boykin

Frustrated with the lengthy planning process, Allyne
turned to attorney Mark Boykin to draft her estate plan. In
December 2012, Boykin confirmed in a letter that Allyne wanted
Willis and Dana to receive a fixed percentage of her estate in the
form of an annuity for the rest of their lives, with the remainder
to Phillips Academy, and wanted her grandson Trentyn to receive
a substantial sum in trust. After hearing Allyne’s interest in
providing annuity payments to her children for their lifetimes,

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Boykin had suggested a charitable remainder annuity trust
(CRAT) for the primary gift and a conventional trust for Trentyn.
Allyne wanted to reduce potential estate taxes, but was more
concerned about providing for her grandson and not having her
children receive a large sum of money at her death.
After further research and discussion between them,
Boykin confirmed in a letter that Allyne wanted Willis and Dana
to receive a fixed amount of five percent per year. She wanted
two-thirds of her estate placed in the CRAT and the balance in a
trust for Trentyn, to pay for his education and necessities, with
the principal distributed at ages 25, 30, and 35. Boykin’s
analysis of the CRAT demonstrated it would not qualify for
charitable treatment under the tax laws, because there was not a
sufficient probability of any assets remaining for Phillips
Academy after the deaths of Dana and Willis, due to their
relatively young ages. As a result, there would be no reduction in
estate taxes using a CRAT. Allyne had preferred to use the
CRAT approach, although it might not provide tax savings.
Boykin provided her with a draft for the trust in January
2013. He noted that Allyne wanted Willis and Dana to receive an
annuity of five percent of her net estate for their lifetimes, with
the remainder to Trentyn. A substantial generation skipping
transfer tax might be imposed. He added, “You have instructed
me that you wish to minimize the taxes imposed upon your estate
at your death, but that you[r] desire to provide for Trentyn is to
take priority over that concern; accordingly, I have drafted the
Trust in such a manner as to carry this out.” Although the trust
used many technical legal terms to ensure proper interpretation
in litigation, he assured her that she did not need to be overly
concerned with language other than the distribution provisions.

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 Allyne responded that she wanted Trentyn to have an
equal annuity share to her children. Boykin explained that he
could not even approximate the tax treatment for such a plan.
He would complete the trust as instructed, but warned that
giving Trentyn a present annuity interest in addition to the
remainder interest could lead to substantial additional taxes.
In February 2013, Boykin provided another revision of the
trust based on the CRAT approach, because Allyne decided to
name Phillips Academy to receive the remainder, even though
the gift would probably not qualify for charitable treatment. He
had advised leaving the option open, because tax regulations
could change and make it possible for the gift to qualify.

Execution of the Estate Plan

Allyne executed the Allyne L. Urick Trust on March 8,
2013, at age 89. The trust was structured as a CRAT. Upon
Allyne’s death, the trust principal would be annuitized and
distributed in equal shares to Willis, Dana, and Trentyn. The
annuity payments would end upon the earlier of Trentyn
reaching age 35 or the death of the last surviving named
recipient of a share of the annuity. Dana was approximately
52 years old and Trentyn was nine years old when Allyne
executed the trust. Trentyn’s distributions were to be held in
trust and distributed on a schedule. Upon termination of the
annuity, the remainder of the trust assets would be distributed to
Phillips Academy. The distribution provision stated, “The
Trustor acknowledges that this gift may, but indeed may not,
qualify as a Charitable Remainder Trust under the laws and
regulations in effect at the time of her death.” The trust

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contained a no contest clause to discourage litigation by
beneficiaries or individuals who were specifically not named as
beneficiaries.
The trust’s primary asset was a 60-unit apartment building
held in a joint venture with Lucien Seifert. The building was
constructed on real property that had been owned by the Urick
family for nearly 100 years. The trustee’s powers included the
power to retain the original assets in the trust and to continue to
retain and operate any business interest that was part of the
trust. The trust also provided the trustee, in the trustee’s
absolute discretion, with the right to take any action to minimize
tax liabilities.
Boykin videotaped Allyne’s execution of her estate planning
documents. Allyne stated that she did not want to leave her
estate outright to her two children. Her estate consisted of a
large piece of property that was quite valuable and brought in a
good income. Boykin noted that her estate was large enough to
be subject to federal estate tax, even under the current
guidelines. Boykin explained that Dana, Willis, and Trentyn
would receive five percent of the trust for the rest of their lives, or
until Trentyn reached age 35. They held a conversation off the
record and returned to clarify that the beneficiaries would receive
five percent of the entire trust each year, split three ways. At
that point, Boykin misstated the distribution, saying, “And then
that is going to continue until both of your children have passed
away and Trentyn attains age 35 years; correct?” Allyne agreed.
Boykin asked where the trust fund would be distributed
once Trentyn reached age 35. They held another discussion off
the record. Allyne thought she might want to extend the length
of time that the annuity would be paid to Trentyn. She added,

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“Because if this trust and the assets in the trust should remain as
valuable as they are at the present time, meaning the building, of
course—it’s such an old building anyway—the school would get
several million dollars, wouldn’t it?” She asked Boykin to
estimate how much the remainder would be. Boykin stated that
although they discussed the fact that the Internal Revenue
Service (IRS) tables showed the remainder going to Philips
Academy would be zero, he didn’t think the school would actually
receive zero. He believed the remainder would probably be
somewhere between $3 and $10 million. Allyne responded, “Oh,
that’s a lot of dough right there.” Boykin agreed it was a lot of
money, but they had discussed that it needed to go somewhere
and this was the plan she came up with that she wanted. Allyne
responded, “Well, it was the first thing that I could think of.” She
decided to leave it as it written for the present, but to give the
distribution further consideration. She executed the documents.
In April 2013, Boykin sent correspondence documenting
that Allyne had expressed concern again that Trentyn should
receive annuity payments until age 45, but after discussing the
matter with Boykin, ultimately instructed him to leave the trust
as it was, with distribution of the annuity to Trentyn terminating
at age 35.
On January 3, 2014, in a handwritten note, Allyne removed
Willis as a beneficiary of her trust. Boykin prepared trust
amendments that eliminated Willis as a beneficiary.

Operative Restated Trust

On August 6, 2014, Allyne executed a full restatement of
the trust. Like the original, the restated trust continued to be

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structured as a CRAT and provided annuity payments in equal
shares to Willis, Dana, and Trentyn. The restatement provided,
however, that annuity payments would end on the earliest of
Trentyn reaching age 35, the death of the last named recipient of
a share, “or upon the latest date allowed by Internal Revenue
Code §[ ]664.” Although not specified in the document, the latest
date allowed by the Internal Revenue Code was 20 years. The
distribution provisions stated: “The Trustor acknowledges that
this gift may, but indeed may not, qualify as a Charitable
Remainder Trust under the laws and regulations in effect at the
time of her death due to the value of the annuity interest, or
other reasons, but desires that it so qualify.”
The restated trust continued to have a no contest clause
providing: “In the event that any Beneficiary or other individual
who is specifically not named as a Beneficiary, including
grandchildren or spouses of the Trustor’s children, shall contest
any aspect of this Trust or attempt to set aside, nullify, or void
the Trust or the distribution thereof in any way, whether
successfully or unsuccessfully, then the Trustor directs that such
rights of such person shall be ascertained as it would have been
determined had that person predeceased the execution of this
instrument without living issue.”
The restated trust continued to give the trustee “the power
to retain, without liability for loss or depreciation resulting from
such retention, the original assets and all other property
hereafter transferred . . . to the Trustee, although such property
may not be of the character prescribed by law or by the terms of
this instrument for the investment of other Trust assets; and,
although it represents a large percentage or all of the Trust
Estate, this said original property may accordingly be held as a

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permanent investment.” The trustee continued to have the
power to retain and operate any business interest that became
part of the trust estate. The trust also continued to provide the
trustee with the power, in the trustee’s absolute discretion, “to
take any action and to make any election to minimize the tax
liabilities of this Trust and its Beneficiaries and to allocate the
benefits among the various Beneficiaries and to make
adjustments in the rights of any Beneficiaries or between the
income and principal accounts, to compensate for the
consequence of any tax election.”
Miscellaneous provisions related to the CRAT were
inserted at the end of the document. One of the new provisions
stated, “The operation of the Trust shall be governed by the laws
of the State of California. However, the Trustee is prohibited
from exercising any power or discretion granted under said laws
that would [be] inconsistent with the qualification of the Trust as
a charitable remainder annuity trust under [Probate Code section
664, subdivision (d)(1)] and the corresponding regulations, unless
the Trust has been previously determined not to qualify
thereunder.” In addition, it provided, “The Distribution Trust
will be irrevocable. However, the Trustee shall have the power,
acting alone, to amend the Trust from time to time in any
manner required for the sole purpose of ensuring that the Trust
qualifies and continues to qualify as a charitable remainder
annuity trust within the meaning of [Probate Code section 664,
subdivision (d)(1)], unless it has been previously determined not
to qualify thereunder.”
In contrast with the creation of Allyne’s original estate
plan, Boykin did not correspond with Allyne in writing prior to
execution of the restated trust. He did not videotape her

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execution of the restated trust. His letter transmitting a copy to
her contained no explanation of the contents of the restated trust
or the reasons for its execution. He did not correspond with her
again about her estate plan.
When Allyne passed away in 2015, Dana was appointed as
the successor trustee. Trentyn was 12 years old at the time of
Allyne’s death.

Petition to Reform the Trust

Attorney Kira Masteller filed a petition on February 16,
2016, to reform the trust under the provisions of Probate Code
sections 17200 (the reformation petition). The attorney caption
and the attorney signature block stated simply, “Attorneys for
Dana Urick.” The petition began, “Petitioner, Dana Urick,
Trustee of The Allyne L. Urick Trust, herein hereby seeks to
reform the Allyne L. Urick Trust” on the grounds that it was not
drafted in accordance with Allyne’s intent, the stated terms were
misrepresented by the drafter, Allyne had mistakenly signed the
trust believing it reflected her intent, and the trust did not
contain the distribution plan that Allyne requested of the
drafting attorney.
Among other defects, the reformation petition alleged that
a CRAT was not an appropriate vehicle for the estate plan,
considering Allyne’s desired distribution and the nature of her
assets. As written, the CRAT was unworkable and would incur
substantial unnecessary taxes. In addition, prior to executing the
full restatement of her trust, Allyne handwrote an amendment
disinheriting Willis, and her attorney prepared several draft

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amendments providing solely for Dana and Trentyn upon her
death.
The petition noted that mistake of law is a ground for
reformation under Civil Code sections 1578, and a written
instrument may be reformed on the application of an aggrieved
party under Civil Code section 3399. Dana proposed to reform the
trust to correctly state the trustor’s intent as follows: After
distributing specific bequests and personal property, the
remaining principal would be divided into two shares, with one
share for Dana and one for Trentyn. The assets would be held in
trust for 10 years, then distributed outright to Dana and Trentyn.
If no beneficiaries survived, the assets would be distributed in
equal shares to four charitable institutions that had been
consistently named as recipients of charitable bequests in
versions of Allyne’s estate plan, one of which was Phillips
Academy.
The proposed reformation eliminated Willis’s interest in
the trust and substantially reduced the likelihood that Phillips
Academy would receive any assets from the trust. Dana attached
Allyne’s correspondence, prior estate documents, and unexecuted
drafts of estate plans. She signed a verification of the
reformation petition that did not state whether she was signing
in her role as trustee.
Willis and Phillips Academy each objected to the
reformation petition.

Petitions Filed by Willis

In May 2016, Willis filed a petition for instructions as to
whether the reformation petition violated the no contest clause of

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the trust (the no contest petition). He argued that the
reformation petition was based on allegations of duress, fraud,
and undue influence. He sought instructions from the court as to
whether Dana lacked probable cause to file the reformation
petition, and if so, whether she and her issue should not receive
her interest under the trust in accordance with the no contest
provision.
Willis also filed a petition to remove Dana as trustee,
surcharge her for breach of trust, reimburse the trust for attorney
fees and costs, and compel an accounting (the removal petition).
The removal petition argued that Dana breached her fiduciary
duties owed to the beneficiaries of the trust by filing a
reformation petition to exclude named beneficiaries and by
taking the position that the trust did not satisfy the requirements
for a CRAT.
Among the exhibits that Willis attached to the removal
petition was a letter from attorney Masteller dated October 6,
2015, stating that she represented Dana as trustee of the trust.
Masteller provided a copy of the trust, but stated that the trust
as drafted failed as a CRAT, and significant concerns existed
about Allyne’s intent compared to the actual document. She
copied “Dana Urick, Trustee” on the letter.
Willis also filed a petition for an order conforming the
charitable remainder annuity trust (the CRAT petition). He
requested the probate court amend and reform the trust to be a
CRAT, so that as of the date of Allyne’s death, it qualified for the
federal estate tax charitable deduction. In addition, he sought
instructions to the trustee to distribute the annuity for a term of
20 years or such term that the court deemed proper. He alleged
that the trust established a CRAT on Allyne’s death, and that

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Allyne’s intent was clear and unambiguous that the CRAT would
qualify for the estate tax deduction. He alleged that the trustee
was prohibited by law from taking actions that impair the
charitable deduction and had a duty to administer the trust
according to its terms, including taking steps necessary to qualify
the trust as a CRAT within the meaning of the Internal Revenue
Code.
Willis alleged that additional mandatory operating
provisions and an alternate charitable remainderman needed to
be added for the trust to qualify as a CRAT. Willis argued that
the trust otherwise qualified for the charitable deduction. In
particular, the term of the annuity was saved by the language of
the distribution provision. A CRAT may only make annuity
payments to a “person” for a term of 20 years or less, but can
make distributions to an individual for life. Because Trentyn’s
share was paid to a trust administered for his benefit, the CRAT
must be limited to a term of years not exceeding 20 years. The
distribution provisions of the trust required payments to cease
upon the latest date allowed by the Internal Revenue Code, so
the term could not fail. Willis asked the court to instruct the
trustee that the term of the CRAT is 20 years, which was the
maximum period allowed under the Internal Revenue Code to be
sure the trust qualified for the charitable deduction.
Willis acknowledged that Dana’s competing reformation
petition attempted to eliminate the CRAT, despite the saving
language limiting the term to the maximum allowed by law.
Under the applicable tax code provisions, the value of the
remainder interest must be at least 10 percent of the net fair
market value of all property placed in the trust, so the annuity
term cannot be so long as to exhaust the remainder interest and

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cause it to be less than 10 percent of the initial net fair market
value at the inception of the trust. Calculations attached to the
petition showed the CRAT could make annuity payments for 20
years without coming near the 10 percent remainder threshold.
The CRAT petition alleged that due to the drafting errors, the
trust did not currently qualify as a CRAT, and therefore, the
amendments must be retroactive to before Allyne’s death.
Dana, as trustee, opposed the CRAT petition. She noted
that her reformation petition and the competing CRAT petition
agreed the trust as drafted did not meet the requirements of a
valid CRAT. She argued that Willis’s CRAT petition altered the
distribution even farther from Allyne’s intent and was
inappropriate for the assets in the trust. The purpose of
reformation was to salvage the trustor’s intent; distorting the
terms of the distribution trust to limit payments to a maximum
term of 20 years would eviscerate Allyne’s intent to leave the
majority of her estate to the annuity beneficiaries.

Anti-SLAPP Motion and Appeal

Dana, as trustee, filed a motion to strike Willis’s no contest
petition under Code of Civil Procedure section 425.16 (the anti-
SLAPP statute). The motion argued that the no contest petition
should be stricken because: (1) the provision could not be
enforced against Dana’s interest as a beneficiary based on a
pleading that she filed in her capacity as trustee; (2) the
reformation petition was not a direct contest, because it did not
seek to invalidate the trust and was brought on the ground of
mistake, not duress, fraud, or undue influence; and (3) Dana had

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probable cause to believe the requested relief would be granted
after an opportunity for further investigation and discovery.
Willis opposed the anti-SLAPP motion. He argued that no
contest petitions were not subject to the anti-SLAPP statute.
Even if they were, based on references to “Dana Urick” in the
petition and the verification, he argued that Dana brought the
reformation petition in her individual capacity, not as trustee of
the trust. Relying on isolated allegations , he argued the
reformation petition was not brought solely on grounds of
mistake, but also on grounds of undue influence, fraud, and
duress. Lastly, he argued that Dana had no probable cause to
believe the reformation petition would be granted, based on the
evidence that Willis was an intended beneficiary of all Allyne’s
prior estate plans.
Willis submitted Boykin’s declaration as to the following.
In January 2014, Allyne said she wanted to remove Willis as a
beneficiary and leave her estate to Dana, Trentyn, and ultimately
Phillips Academy. Boykin met with her in March 2014, and she
executed an amendment removing Willis from the trust. On
April 1, 2014, she called and said that she had reconsidered
eliminating Willis. She wanted to revert to the trust that she
originally signed. Boykin met with Allyne that night. She wrote
“revoked” on the amendment and tore it up. She allowed him to
keep a copy, which he attached to his declaration. She asked that
Willis not be made aware of her actions to exclude him from the
trust.
Boykin met with Allyne in August 2014. She appeared
irritated or resentful that Willis might be seeking a
conservatorship over her and asked about removing him from the
trust. Boykin explained that Willis would challenge the trust if

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he had nothing to lose, but a challenge would be avoided if she
kept him as a beneficiary of one-third of the annuity payment.
She agreed Willis should continue to be a beneficiary. To avoid
any doubt, Boykin prepared the restated trust, which Allyne
executed in his presence. After that, she did not contact Boykin
again to request any action to remove Willis as a beneficiary of
the trust.
Dana filed a reply arguing that as trustee, she had
authority to petition for reformation of the trust, and the petition
stated in the very first sentence that the petitioner was the
trustee of the trust. Although Willis argued the allegations may
support causes of action for duress, fraud and undue influence,
Dana had not challenged the trust on any of the asserted grounds
and the petition was not a direct contest. The evidence that she
had would lead a reasonable person to believe the reformation
petition would be granted after an opportunity for further
investigation and discovery.
Judge Lesley C. Green heard argument, reviewed the
pleadings and the evidence, and granted the anti-SLAPP motion.
The court found the anti-SLAPP statute applied, because the no
contest petition was based on protected litigation conduct. The
reformation petition was not a direct contest, however, because
the petition was brought in Dana’s capacity as trustee, not as a
beneficiary, and the grounds for seeking reformation did not fit
into any of the categories required for a direct contest. The court
noted that simply because the factual scenario alleged in the
petition could support a claim for fraud did not make it a direct
contest under the Probate Code. In the court’s assessment, Willis
had not made even the minimal showing necessary to
substantiate a legally sufficient claim. The court struck the no

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contest petition, and Willis filed an appeal from the order
denying his anti-SLAPP motion.
In October 2017, another panel of this appellate court
reversed the order denying the anti-SLAPP motion. (Urick I,
supra, 15 Cal.App.5th 1182, 1186.) We agreed the no contest
petition was litigation activity protected by the anti-SLAPP
statute. We concluded, however, that Willis had demonstrated
the minimal merit necessary to proceed to trial on his petition.
He had shown a reasonable probability of prevailing if the trier of
fact credited his evidence and arguments. Dana provided
conflicting evidence and arguments as to each point, from which
the trier of fact could find that she filed the reformation petition
in her capacity as a trustee, the petition was brought on the basis
of mistake alone, and Dana had a reasonable basis to believe the
petition would be reformed, but Dana’s evidence did not
conclusively establish any of those facts as a matter of law, and
therefore, the anti-SLAPP motion had to be denied. (Urick I,
supra, 15 Cal.App.5th at pp. 1196–1198.)

Additional Litigation on Behalf of the Trust, Amended
Reformation Petitions, and Suspension of Trustee

Dana, as trustee, elected to dissolve the joint venture and
exercised an option to buy out Seifert’s interest in the apartment
building, but the purchase was not completed. In November
2017, attorney Boykin filed a lawsuit on behalf of Seifert to
enforce the buyout against Dana as trustee. Dana, as trustee,
filed a cross-complaint against Seifert to enforce the buyout
against Seifert (collectively the Seifert litigation). Ultimately,

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the trial court disqualified Boykin from further representing
Seifert based on his conflict of interest.
In February 2018, Dana, as trustee, filed an action for
professional negligence against Boykin. The trial court found the
statute of limitations had started to run when Dana filed her
reformation petition, more than one year before she filed the
malpractice action, and therefore, the action was barred by the
one-year statute of limitations. Dana appealed the trial court’s
ruling. In an unpublished case, this appellate court reversed,
finding that Dana should have been granted leave to amend to
allege that a tolling agreement with Boykin extended the statute
of limitations. (Urick v. Boykin, supra, B295773.)
With the assistance of new law firms, Dana, as trustee,
filed an amended petition for reformation of the trust in May
2018. In support of the amended petition, she filed the
declaration of attorney Masteller. Masteller declared that her
law firm represented Dana only in her capacity as trustee. The
firm was not retained by, and never at any point represented,
Dana in her individual capacity as a beneficiary. In fact, Dana
was represented in her individual capacity as a beneficiary by
independent counsel.
Specifically, Masteller served as counsel for Dana in her
capacity as trustee in connection with the February 16, 2016
reformation petition. The first sentence of the February 16, 2016
reformation petition showed Masteller filed the petition for Dana
as trustee by stating, “Petitioner, Dana Urick, Trustee of the
Allyne L. Urick Trust, herein hereby seeks to reform the
Allyne L. Urick Trust.” Masteller’s intent in drafting the first
sentence of the petition was to define the petitioner as “Dana
Urick, Trustee of the Allyne L. Urick Trust.” The petition never

19
stated that it was brought by Dana as an individual, and the firm
did not represent Dana as an individual. References to Dana in
the attorney caption, signature block, and verification did not
repeat that it was brought in her capacity as trustee, but the
omission was inadvertent, because the firm represented Dana
only as trustee. In the petition, Masteller referred to Civil Code
section 3399 for the proposition that a written instrument may be
reformed by the aggrieved party. In Masteller’s analysis, Allyne
was the aggrieved party as a result of the incorrectly drafted
trust, and the successor trustee Dana brought the action to
reform the trust to reflect Allyne’s wishes. Masteller
acknowledged, however, that the reference to Civil Code 3399
might not have been the clearest use of the citation.
Dana subsequently filed a second amended petition for
reformation of the trust in July 2018. In August 2018, Phillips
Academy joined in Willis’s no contest petition. Willis filed an
amended no contest petition in October 2018, and a supplement
to the amended petition in January 2019. Dana filed objections
to the amended no contest petition and the supplement.
On the first day of trial on the reformation petition in July
2019, the probate court made preliminary comments and Dana
withdrew the second amended petition for reformation. The
probate court dismissed the petition without prejudice.
On July 16, 2019, Willis filed a petition to suspend Dana’s
powers as trustee and appoint interim successor co-trustees. On
October 25, 2019, Judge David J. Cowan granted Willis’s petition
for an order conforming the CRAT. On January 23, 2020, Judge
Cowan granted Willis’s request in the trust proceedings to
suspend Dana as trustee and appointed interim successor
trustees.

20
Preliminary Offer of Proof

On January 10, 2020, at the probate court’s request, Dana
submitted a preliminary summary of legal issues and evidentiary
offer of proof. She noted that Willis had the burden of proof at
trial. She provided an extensive list of witnesses. Masteller
would confirm her deposition testimony in which she
unequivocally testified that Dana filed the 2016 reformation
petition in her capacity as trustee. In addition, Dana would
testify that she intended and understood that she filed the
reformation petition in her capacity as trustee.
Dana’s expert witness would testify about the requirements
for a trust instrument to qualify as a CRAT, the remedies for a
trust that is not drafted to qualify as a CRAT, and the
appropriate use of a CRAT in an estate plan. Dana also
anticipated calling Boykin as a hostile witness. Among other
points, his testimony would demonstrate a lack of understanding
of the technical requirements of a CRAT, which resulted in a
trust instrument that did not qualify as a CRAT.
Other witnesses would testify to their personal knowledge
that Allyne paid for Trentyn’s private school education and set up
a college fund for him. In addition to witness testimony, Dana
would present extensive documentary evidence, including the
transcription of Allyne’s videotaped execution of the 2013 trust
instrument and the drafts of testamentary documents
eliminating Willis as a beneficiary.
She included a portion of her deposition testimony. She
had been a practicing lawyer since 1988, primarily in family law
for the past 10 years. She brought the reformation petition in her
capacity as trustee, as stated in the body of the petition.

21
 In her deposition, Dana explained that Allyne repeatedly
told her the trust assets would provide for Dana for her lifetime.
Dana’s understanding of the trust that was drafted, however, was
that the bulk of the estate went to Phillips Academy, and not at
the end of Dana’s or Trentyn’s lifetimes, but after a period of
years. Allyne had also told Dana that money was there for
whatever Trentyn needed. Allyne had paid for Trentyn’s private
school tuition, saying it was her privilege to do so. Dana’s
understanding of the trust that Boykin drafted, however, was
that it did not allow Trentyn’s share to be accessed at all until he
was age 25, which contradicted what her mother had always
expressed that she wanted for Trentyn. If the trust did not allow
the money for Trentyn to be used for his school tuition, there was
an error in the drafting, based on everything that Allyne had ever
said she wanted for Trentyn.
Dana’s understanding was that the trustee, on behalf of the
trust, was aggrieved and had an obligation to bring to the court’s
attention that the trust was not drafted in accordance with the
testator’s wishes. Her understanding was also that, as drafted,
the trust did not qualify for the tax relief that Boykin referred to
in correspondence with Allyne.
She had no knowledge of making an allegation of fraud in
the reformation petition. She relied on her counsel to draft the
trust and tax provisions of the proposed reformation in
accordance with her mother’s intent, but aside from that, she
believed the proposed trust reformation accurately set forth her
mother’s testamentary intent.
Allyne had a serious heart attack in March 2014. Dana
was asked about text messages that she wrote to Willis’s wife
expressing frustration with Allyne’s behavior during this period

22
of her life. The portrait of Allyne that emerged was a mother who
was demanding, controlling, anxious, easily slighted, and
punitive. Dana did not tell her mother in advance about a
vacation that she was taking with her family for fear of her
mother’s emotional manipulation. Dana visited and cared for
Allyne every week, as Allyne preferred, despite having her own
family and business, and Trentyn’s schoolwork suffered due to all
the late nights at Allyne’s house and the hospital.
Dana testified about multiple conversations that she had
with her mother on different occasions over a period of many
years in which her mother insisted that Dana honor her wishes
and ensure her brother did not receive anything from the estate.
Her mother was very hurt that Willis and his third wife had big
family holiday celebrations that Allyne was never included in and
heard about later. Willis had stepchildren that Allyne had never
met. Allyne told Dana that she had taken steps to disinherit
Willis. At one point, Allyne had considered giving Willis a
specific amount of money, but decided not to, because she did not
want Willis to receive anything. A few days before her death,
Alleyne told Dana that her lawyer had the documents, and Willis
was going to fight Dana, but Dana must honor her wishes and
ensure Willis got nothing. When Dana reviewed the trust
document for the first time about a month after her mother’s
death and learned her brother had an interest as a beneficiary,
her initial reaction was confusion, because it was contrary to
what her mother told Dana that she wanted.
As trustee, Dana paid the remaining contract for Trentyn’s
education and advanced funds against Trentyn’s share of the
estate for tuition and educational expenses. She paid herself
between $20,000 and $22,000 per month as trustee’s fees.

23
 Dana submitted Eick’s deposition testimony. Eick met
with, corresponded, and prepared drafts of estate plans for Allyne
over the course of several months before she turned to Boykin for
estate planning services. Eick’s notes from their conversations
reflect that Allyne said Willis was financially secure, a successful
professional, and had plenty of money. He married a third time
and had stepchildren that Allyne had never met. Allyne was
concerned Willis would leave his assets to his wife, and Allyne
did not want her assets to go to Willis’s wife or the wife’s
children. Allyne said her son and daughter did not get along and
had different views about selling property.
Eick explained to Allyne that if a particular person does not
receive anything under the trust, there is no incentive for the
person not to contest the trust. Even if she did not want to leave
assets to a person, it was better to leave them something so that
the person has something to lose by contesting the document,
rather than to leave the person nothing. Allyne was going to
provide Willis with $600,000 as a disincentive from contesting
the trust. Allyne consistently expressed that she wanted to make
sure her daughter got most of her money and her son really did
not get anything except a relatively small amount of money to
discourage him from contesting the estate plan. She wanted to
leave almost everything to her daughter and not her son.
At one point, Allyne told Eick that she changed her mind
and did not want Willis to have any assets from the trust. She
wanted to effectively disinherit him. Eick removed Willis as a
beneficiary from the next draft. Allyne did not want Willis to be
a trustee, because she was concerned that he would know rules
that Dana did not know and would not treat his sister fairly.

24
 Dana submitted Boykin’s deposition testimony. Boykin
explained that a CRAT pays a fixed percentage to certain
individual beneficiaries, which must be at least five percent of the
value of the trust corpus at the creation of the trust, and in no
more than 20 years, passes the remainder to charity. The tax
benefit of a CRAT is the deduction on the estate tax return for
the present value of the remainder to the charity.
Boykin did not employ a secretary, administrative assistant
or paralegal during the time that he represented Allyne. He also
did not have errors and omissions malpractice insurance. Boykin
had completed a CRAT for one client prior to drafting Allyne’s
estate plan, although he had helped to administer several more.
He was subsequently sued for legal malpractice by the other
client’s estate with respect to the CRAT that he drafted. Boykin’s
standard fee to draft a trust was between $1,000 and $2,500, but
he charged $5,000 for a CRAT.
When Boykin first met with Allyne to discuss her estate
plan, she was adamant that she did not want the beneficiaries to
receive a large amount at one time. She wanted the beneficiaries
to get annuity payments for their lifetimes and anything left
after their deaths would go to Philips Academy. She wanted
Trentyn’s annuity to be paid until he was 35 years old, but
Boykin knew there was a limited period of 20 years duration for a
CRAT. He told her that her goal of providing an annuity for
three family members with any remainder to Philips Academy
was very close to a CRAT, except that she wanted Trentyn to
receive distributions until age 35. He recognized that a CRAT
did not exactly match the distribution that she wanted. He told
her that if she could be flexible about the end date for Trentyn’s
annuity payments, then she would be able to use a CRAT.

25
 Boykin did not calculate the tax savings or tax benefit of a
20-year CRAT, because Allyne was more interested in who was
getting distributions than in how much it would save in taxes.
Tax deductions and tax savings were a secondary consideration.
Allyne was clear that the tax objectives were secondary in her
mind to the distribution scheme. She would rather pay less in
taxes, but it was more important to her to get money to Trentyn.
Boykin found the form that he used for the CRAT on the
internet after looking at six or eight sites. He believed that he
was drafting a 20-year CRAT. He drafted the CRAT to continue
for the maximum time allowed, which was 20 years. If Trentyn
was 12 years old when Allyne died, the annuity would cease
when he was 32 years old, and that was okay with her.
In his first meeting with Allyne, before he knew about her
interest in the apartment building, he explained that a trustee
would liquidate the assets of the estate. Although he did not
discuss using a CRAT in that meeting, he thought she understood
that her estate would be liquidated for the CRAT. He never
discussed liquidation with her again. Boykin did not think about
the tax treatment failing if the trustee kept the apartment
building in the CRAT, because he assumed everything would be
liquidated, even though he knew the property had been in the
family for a very long time.
Boykin entered the amount of the annuity, the percentage
of the annuity, and the terms of the trust in an IRS calculator on
the internet. The calculator stated the remainder value was zero,
and therefore, the trust did not qualify as a CRAT. In Boykin’s
experience, even though a plan did not pass on the IRS
calculator, the CRAT would be approved by the IRS on the estate
tax return. He believed the remainder for Philips Academy, in

26
his experience, would be 20 percent of the amount in the trust at
the time it was created. He advised Allyne that the website
calculator said the remainder would be zero, but in his
experience, it would be more like $3,000,000. He limited the
annuity to 20 years, even though the IRS calculator showed the
trust would not qualify as a CRAT, because the IRS calculator
had been wrong before and he was confident it would qualify.
The trust that he drafted accomplished Allyne’s distribution
objectives, even if it did not receive the charitable tax benefit it
would otherwise be entitled to.
After executing the trust, Allyne had Boykin draft an
amendment to disinherit Willis, because she said Willis had it too
easy, made plenty of money on his own, had two daughters who
did not pay any attention to Allyne, and had too many young
people freeloading off him in his home. She was adamant that
Willis’s wife not receive any of her money.
Boykin stopped writing letters to Dana after she told him
that someone went into her desk and took her documents.
Instead, Boykin took extensive notes about their conversations on
his computer, which he saved to keep a record. The computer
with his notes crashed. His data was recovered from the cloud,
but due to transferring the data back from the cloud, he does not
know what the data would indicate about when it was entered or
stored.
In reviewing his previous declaration about the
circumstances surrounding restatement of the trust, Boykin
explained that Allyne said Willis would object to any treatment
different from his sister. Boykin mentioned leaving Willis a
specific dollar amount instead of an annuity interest, but Allyne
said no amount of money that she could leave Willis would stop

27
him from contesting the document if it was different from Dana’s
share. Allyne said not to repeat her comments about Willis
unless Boykin was forced to do so.
In April 2016, Willis’s attorney called Boykin to say that
Dana had filed a reformation petition accusing Boykin of nothing
less than malpractice. Willis’s attorney sought a tolling
agreement from Boykin for a malpractice claim on behalf of
Willis. Otherwise, he would be forced to sue Boykin to preserve
the statute of limitations, even though it was too early to
determine whether he had a claim. Boykin signed a tolling
agreement, which is still in effect.
Dana also provided deposition testimony and background
information for her expert witnesses.

Litigation Against Former Counsel

In March 2020, Dana filed a complaint against Masteller
and her law firm on the ground that they failed to advise Dana of
fiduciary duties as trustee or inform her that the reformation
petition could violate those duties. The trial court sustained a
demurrer to the complaint on the ground that Dana suffered
actual injury in October 2017 when Urick I was issued and she
incurred attorney fees to defend her actions in filing the
reformation petition, rather than when she was suspended as
trustee in January 2020. As a result, her malpractice complaint
was barred by the one-year statute of limitations. In an
unpublished case, Division Four of this appellate court affirmed
the lower court’s decision. (Urick v. Lewitt, supra, B312238.)
On May 7, 2020, Dana filed a malpractice complaint on
behalf of herself as the former trustee, as a third-party

28
beneficiary, and as guardian ad litem for Trentyn, against some
of the attorneys who provided legal services to her in her capacity
as trustee which could result in her being disinherited, removed
as trustee, and surcharged personally in the pending probate
litigation. The attorneys filed an anti-SLAPP motion, which the
lower court denied. Division Two of this appellate court affirmed
the lower court in an unpublished opinion. (Urick v. Elkins Kalt
Weintraub Reuben Gartside, LLP, supra, B310056.)

Request for Continuance

Trial was set to begin on Willis’s no contest petition and his
removal petition on Monday, May 17, 2021, before Judge Paul T.
Suzuki. On May 10, 2021, Dana’s trial counsel, James Bohm,
advised the attorneys for the other parties that he was in the
hospital with a medical emergency. He would not be able to try
the case and needed a continuance.
Bohm’s associate Cynthia Beek appeared at a hearing on
motions in limine on Thursday, May 13, 2021, to inform the
probate court that Bohm had two emergency surgeries over the
past weekend and had just been released from the hospital. He
had major surgery, lost half his blood, and received blood
transfusions. He was recovering on strict bed rest. His doctor
said he is not supposed to engage anything strenuous, including
trial work, for 30 to 60 days.
The court responded, “If I continue this case, it’s going to go
to 2023, in February. You’re talking about almost two years from
now. I blocked out almost five weeks for this trial.” Willis’s
counsel objected to a continuance. Phillips Academy’s counsel
was sympathetic, but ready for trial. A continuance for two years

29
would cause a lot of structural problems. Willis’s counsel stated
that Beek had been heavily involved in the case drafting
paperwork, so was eminently qualified to step in for Bohm. He
shared the biographies for Beek and other colleagues on the law
firm’s website. Beek had “a wide breadth of experience assisting
clients in a variety of areas of law, including trust litigation,” “is
well-versed in all phases of litigation,” and “assisted clients in
complex multimillion dollar trust litigation, at both the trial
court and appellate level.”
Beek responded that some of the lawyers perform
transactional work and very few of the trial attorneys do probate
work. She added, “As for myself, I’ve never even attended a trial,
let alone tried a case. So, it wouldn’t be me. We simply will not
have a trial attorney to go forward.” She stated that the law firm
would file a motion and get a declaration from Bohm’s doctor, if
the probate court needed to see paperwork. “But[ ] frankly, I
don’t know what—you know, we don’t have anybody who’s
familiar with this case to go forward as trial counsel come
Monday.”
The court continued the hearing on the motions in limine to
Monday, May 17, and offered to continue the trial two days to
Wednesday to allow Beek to get ready for trial or someone from
her office to assist her. The court stated, “I am sympathetic with
Mr. Bohm’s medical condition, and normally I’m very, very
generous with providing continuances, but I think that all the
parties are in a very difficult situation because there’s a
possibility that there might be a five-year violation if I continue it
to 2023 and that this litigation has been going on for a long
period of time, and I do not see any other time that I can cutout
prior to 2023.” The court added that Bohm’s health was

30
important, “but we have so many parties here who have been
waiting, and since the law firm does have 16 attorneys, I’m not
going to parse out who’s the litigation attorney and who’s the
transactional attorney. As far as I’m concerned, they’re all
attorneys licensed to practice law and they can come to court.
But I will give a couple more days so that whoever is going to do
this can get prepared for it.”
Beek reiterated her request for a continuance. She argued
the five-year deadline was not in jeopardy, because Willis had
appealed the order striking the no contest petition and the
matter was stayed on appeal for a year, and after that, the
shutdown for the COVID pandemic further continued the
limitation period. She noted that Willis’s attorneys had
requested a continuance just a few months earlier. The matter
was very complex and the firm did not have attorneys who could
get up to speed over the weekend. Dana selected Bohm as her
trial counsel, and his emergency came on suddenly. He thought
he was going to the doctor about an ear infection, because he was
very dizzy, and the doctor told him to go to the hospital. Beek
had been unable to appear any earlier in the week to inform the
court, because she was on the east coast where her grandfather
was in the hospital, and she had not been expecting to be
involved in the trial. The court did not change its ruling denying
a continuance.
On May 14, 2021, Dana, individually and as the suspended
trustee, filed an ex parte application to continue the trial. Her
trial counsel Bohm had suffered a sudden, life-threatening
medical condition that required emergency hospitalization, two
emergency surgeries, and blood transfusions to address internal
bleeding. He had been hospitalized for five days. He was unable,

31
medically, to proceed on the scheduled trial date. His physicians
placed him on strict bedrest for a week and ordered him not to
engage in any stressful activities, such as trial, for a minimum of
30 to 60 days to ensure his full recovery. She requested a 60-day
continuance of the trial. She noted that she had not previously
requested a continuance in the matter.
She asserted that Bohm was the only attorney qualified
and prepared to try the case. Beek, who assisted Bohm with
some tasks in the case, had never been to trial, even as a second
chair, and never even attended a civil or probate trial. No other
attorneys at Bohm’s firm had been involved in the proceedings or
had knowledge of the issues in the case.
The matters had been actively litigated for multiple years
and the potential financial impact was very high. Dana selected
Bohm for his trust litigation expertise and extensive complex
trial experience. At Dana’s individual expense, Bohm had spent
more than 300 hours preparing for trial. No other attorney could
adequately represent her with 48 hours of preparation.
Dana attached Bohm’s declaration providing the details of
his condition, his preparation for trial, and the inability to
substitute another attorney from his firm. She provided her own
declaration. In addition, she attached the declaration of Bohm’s
primary care physician providing the details of his treatment and
his medical opinion that Bohm required a week of strict bed rest.
After a week of bed rest, Bohm could return to light work, but in
the doctor’s opinion should not engage in the stress of trial until
his blood levels returned to normal in 30 to 60 days. Failure to
follow the doctor’s instructions, in his opinion, would place
Bohm’s health in jeopardy.

32
 Willis opposed the request for a continuance. He argued
that another lawyer in Bohm’s firm could represent Dana at trial.
Willis would be prejudiced if the trial was continued, because the
court could not reset the trial until 2023, and Willis had
expended $200,000 for trial preparation that he should not be
forced to incur again. Willis attached the biographies for every
attorney in Bohm’s law firm and information on the firm’s
practice areas from their website. He also attached local rules
requiring an application for continuance of trial to be filed no less
than one week prior to trial.
A hearing was held on the application for a continuance on
May 17, 2021. Beek appeared for Bohm on behalf of Dana. The
court stated that it was a very hard decision, because the court
was very sympathetic to Bohm’s situation, but the court was also
sympathetic to the amount of fees spent in preparation for trial
by Willis and other counsel. The court thought there was a
possibility that Beek would step in, at least temporarily, if the
court denied the continuance. The court also considered that
other attorneys at Bohm’s firm had experience in probate law.
Many trials were delayed throughout the court due to the
pandemic, so parties in other cases were frustrated. As soon as
the probate court began holding trials again in November 2020,
the court had been engaged in back-to-back trials. Judge Suzuki
had allocated more than one month for the Urick matters, and if
the case were continued, the court would remain idle for four
weeks. If the court could continue the case without harming
other litigants, the court would do so. But it was a significant
imposition to the court to be idle for a month and continue the
case to 2023.

33
 In addition, Dana had used at least five or six other law
firms in the past, half of which she had sued for malpractice. The
court had to weigh all the interests. Technically, local rules
stated a continuance had to be requested within one week before
trial, so a continuance should be denied based on that alone.
Upon weighing the interests, the court reached the difficult
decision to deny the continuance.
Beek responded that the firm would not have any attorney
ready to go to trial on Wednesday. She suggested using a judge
pro tem or private judge. She noted Dana had incurred as much
in attorney fees to allow Bohm to prepare for trial as the other
parties had incurred for their attorneys. Bohm prepared more
than 300 hours for the trial. There was no way any other
attorney could be prepared to adequately represent Dana in two
days. She also noted that there had been multiple judges in the
proceeding over the course of five years.
Willis’s counsel responded that sending the matter out to
another judge was not an acceptable solution. Judge Suzuki was
the fifth judge on the case, and to expect another judge to get up
to speed for this case was an unreasonable request. It would
prejudice every party and was not a reasonable solution. He
appreciated the concern and the seriousness in which the court
had weighed the equities, it was a difficult situation for everyone,
but he saw no other solution other than to move forward.
Phillips Academy’s counsel stated again that he was torn.
The “reality here is that there is a horrible burden that is going
to have to be visited upon someone here. And, in my analysis,
given the number of counsel that Ms. Urick has had over the
period, given the fact that when it comes to balancing the relative
equities of the parties, one of the parties here to this trial is a

34
now suspended for cause fiduciary. Where the burden must be
visited is, unfortunately, on Ms. Urick.” He noted that Dana was
a licensed attorney, although not a trust litigator.
Beek responded that the argument about the prejudice
caused by involving another judge was an acknowledgement of
the complexity of the case. Trentyn’s attorney noted that if the
trial went forward and it led to Dana’s default, then there would
simply be a motion for relief from default. He did not see a way
to move forward with the trial as scheduled. He urged the
parties to attempt mediation again, but otherwise, 30 to 60 days
was an opportunity for a judge pro tem to get up to speed on the
matter.
Willis’s attorney replied, “Let me answer [Trentyn’s
attorney] directly in terms of what happens with the default. We
go right from a default into a prove-up. And I intend to proceed
with the prove-up should Dana not appear pursuant to the notice
to attend trial.” He did not think sending the matter out for 30 or
60 days was a reasonable solution. He also argued that Dana
had 14 attorneys in the matter, five or six of which had been sued
for malpractice. “So I just say that to set the record straight in
terms of any empathy that might otherwise befall Ms. Urick’s
position.” He also stated that it would be an uncontested trial,
not a default.
The court stated that it did not construe the situation as a
default hearing. It would be a trial. The court found Dana
should bear the consequences of not going forward with the trial
and denied the application for a continuance. The trial court
heard argument and ruled on the motions in limine.

35
 Dana filed a writ petition seeking a stay of the trial, which
this appellate court denied on the ground that she had an
adequate remedy by way of appeal from any adverse judgment.
Trial began on May 19, 2021. Two attorneys from another
law firm appeared on behalf of Bohm, Beek, and their law firm.
There was no appearance for Dana. The attorneys on Bohm’s
behalf presented information from Bohm’s doctor about his
condition, argued Bohm was the only individual who could try the
case on Dana’s behalf, represented that Bohm had never been in
such a dire situation in their long history with him, fell on the
mercy of the court, and again requested a continuance of the
trial. The court interpreted the argument as a motion to
reconsider the court’s ruling. The court stated that it was the
only long cause probate court, the matter could not be heard by
any other judge, and because of the COVID pandemic, the court
was backed up. The court denied the motion for reconsideration
of a continuance, even a continuance of two weeks. The court
expressed a lack of confidence that the case would even finish
within the time originally estimated by the parties. The
attorneys for Bohm, Beek, and the law firm concluded their
participation and left the hearing.

Trial

Trial was held on the no contest petition. The probate
court granted Phillips Academy’s motion for evidentiary or
terminating sanctions or an order striking Dana’s objection to the
no-contest petition, in light of her failure to appear at trial under
Probate Code section 17206. Willis noted that the trustee was
prohibited from exercising any power or discretion granted under

36
California law that would be inconsistent with qualification of the
trust as a CRAT under Probate Code section 664. The trustee
also had the power to amend the trust as required to ensure the
trust qualified and continued to qualify as a CRAT, unless it had
been previously determined not to qualify.
Willis discussed the differences between the restated trust
and Dana’s proposed reformation. He noted all of the features of
the reformation petition that suggested the petition was brought
by Dana as a beneficiary. Willis did not provide any extrinsic
evidence, however, to support finding that Dana filed the
reformation petition as a beneficiary. Willis argued the
reformation petition was based on undue influence, fraud, and
duress, based on selected allegations. Willis introduced Dana’s
amended reformation petitions as circumstantial evidence that
she had no probable cause to file the original petition, because
her subsequent petitions were based solely on allegations of
mistake. Phillips Academy also argued that lack of probable
cause was demonstrated by the inconsistent positions taken
among the petitions.
Willis argued Dana’s objections, as trustee, to the CRAT
petition had interfered with qualification of the trust as a CRAT
in violation of her duties as trustee, and therefore independently
violated the no contest provision of the trust. Willis was honoring
his mother’s expressly stated wishes by reforming the trust
instrument to qualify as a CRAT, while Dana, as trustee, opposed
it.
Counsel for Phillips Academy argued that the reformation
petition was a wish lists of terms that Dana wanted as a
beneficiary. The action was inappropriate for a trustee. He
noted that after so many years of litigation, when it was time for

37
decisions to be reached, Dana was not present and had not put on
any evidence.
After a hearing of less than eight hours, the court granted
the no contest petition in favor of Willis and Phillips Academy.
The court found that Dana filed the no contest petition as a
private individual. The court noted the features of the petition
which led to the conclusion that Dana filed the petition
individually and not in her capacity as trustee, whereas her
subsequent amended reformation petitions clearly stated that she
was signing them in her capacity as trustee. The reformation
petition constituted a direct contest of the trust brought without
probable cause, and therefore, violated the no contest clause of
the trust. Dana would not be entitled to a distribution under the
trust. The trial court continued the question of attorney fees to
be considered as part of the trial on the petition for surcharge.
The trial court ultimately entered an order granting the no
contest petition in favor of Willis and Phillips Academy on
May 26, 2021.
On May 20, 2021, the interim successor co-trustees notified
counsel that the IRS had granted the charitable deduction for the
value of the charitable remainder interest, valued at $2,405,273,
which was greater than anticipated. The ruling reduced the
estate taxes owed by $1,045,424.
Dana filed further briefing on the issue of a continuance
and appearance at trial. Willis objected to the filing, which he
characterized as an unnoticed motion for reconsideration of the
order denying a continuance.
On May 24, 2021, trial began on the removal petition.
There was no appearance for Dana. The court construed Dana’s
further briefing to be a motion for reconsideration, which the

38
court denied. Willis argued that the court could consider the
evidence presented in connection with the no contest petition as
equally relevant to the removal petition. The probate court
agreed that some of the evidence and the ruling on the no contest
petition would be used in the court’s removal decision.
Willis called expert witness John Hartog, who was a
certified specialist in estate planning, probate, and trust law. He
reviewed the trial exhibits, including the reformation petition. In
his opinion, Dana, as trustee, fell below the standard of care
when pursuing the reformation petition and the amended
petitions. Among other aspects, she favored one set of
beneficiaries over another. She disguised her personal interests
as a reformation petition and used trust assets to advance that
personal interest. In addition, she fell below the standard of care
when she opposed the petition to reform the trust to qualify as a
CRAT, in contravention of her statutory obligation, which would
have increased the tax liability of the trust estate. She also fell
below the standard of care with respect to her administration of
the trust based on these actions and her pursuit of the Seifert
litigation. She committed waste by failing to make her mother’s
residence productive and by expending trust assets on litigation
that was of no benefit to the trust. In his opinion, payment of
trustee fees to Dana was not justified. Falling below the
standard of care justified removal of the trustee. If a trustee
commits a breach of trust or falls below the standard of care, the
trustee is unfit to serve, which is a basis for removal.
The court found Hartog was very qualified in terms of
identifying the duties that Dana breached. The court stated that
it previously found Dana filed the reformation petition as the
trustee, as well as individually, for the benefit of some of the

39
beneficiaries and not others, which would in and of itself be
ground for removal. The court added further grounds that there
was a failure to maintain the administration of the trust, such as
continuing the Seifert litigation, which resulted in the
expenditure of a large amount of attorney fees. As trustee, she
should have filed her own action to conform the trust in the
manner that the trust provisions stated Allyne preferred,
specifically the trust provisions stating that Allyne wanted the
tax benefit to apply to the CRAT, and not have opposed the
petition to reform the CRAT. The court found a clear violation of
the duty of loyalty by filing the reformation petition and
expending enormous amounts of attorney fees. In addition,
failing to properly administer her mother’s residence was a
violation of the administration of the trust. Based on these
breaches and the prior ruling on the no contest petition, the court
ordered Dana removed as trustee.
The court turned to the surcharge issues. A real estate
broker estimated that the fair rental value of Allyne’s residence
in 2016 was $5,300 per month. Willis used Allyne’s accountings
to argue that payments for Trentyn’s private school tuition,
Dana’s trustee fees, expenditures in connection with Allyne’s
home and car, and attorney fees paid to various law firms were
inappropriate.
The probate court expressed concern that the amount for
attorney fees was large and might include legitimate expenses.
Attorneys for Willis and Phillips Academy argued that it was all
incurred for trust litigation and none of it was a legitimate
expense. Willis’s attorney argued that all of the fees listed were
incurred for the reformation petition, the CRAT objections, or the

40
Seifert litigation. The attorneys were of no benefit to the estate
and the attorney fees spent by Dana could be surcharged to her.
The probate court considered the no contest litigation and
the objection to reformation of the CRAT to be liable for
surcharge. The Seifert litigation was brought against the
trustee, however, and involved business decisions by the trustee.
A tax lawyer testified about the complicated negotiation and
financing decisions involved in the buyout of the apartment
building, as well as the complicated tax consequences. If the
agreement had been consummated under the terms that Dana
pursued and she had acquired the apartment building with seller
financing, it would have impaired the trust as a CRAT and
resulted in a complete loss of any tax benefit. Dana had offered
to pay cash, but no appearance was made at trial to assert a
defense for Dana based on her cash offer. The court concluded
liability for the Seifert litigation had been established.
Willis presented an expert in auditing legal billing to
discuss the various bills for attorney fees. Willis argued that
Dana should be surcharged from the time that her mother died
and she accepted the role of trustee, until the date that she was
suspended.
The presentation of evidence and argument for the removal
petition was completed in less than eight hours over a span of
two days. The probate court ruled on the morning of the third
day. The court confirmed the ruling removing Dana as trustee.
Dana was surcharged for attorney fees paid from the trust for her
reformation litigation and her objection to the CRAT. The court
found Dana breached her fiduciary duties and acted in bad faith
in prosecuting the reformation petition to exclude Willis and
reduce Philips Academy’s beneficial interest. The court also

41
found that the objections to the CRAT petition were in bad faith,
since the trust document itself required all efforts be taken to
qualify the CRAT for the benefit of the trust and the
beneficiaries. Opposing the petition to conform the CRAT
contravened the express terms of the trust. The total charges for
attorney fees surcharged against Dana based on these litigation
activities was $1,485,332.50.
The court found that Dana had made a bad business
decision with regard to the Seifert litigation, but found no bad
faith. In addition, the delay actually benefitted the trust,
because the property appreciated substantially before the sale
was eventually completed. Accordingly, no surcharge was
imposed on the Seifert litigation.
The trust did not provide for payment of Trentyn’s
education expenses, so Dana was surcharged $132,424.60. The
court also imposed a surcharge of $283,578.02 for the failure to
rent out Allyne’s home after her death. The court found the
trustee fees were excessive, especially under the circumstances,
and allowed $10,000 per month for the administrative duties that
Dana performed for the trust. As a result, the total surcharge for
overpayment of trustee fees was $562,200. The court excused the
first year of payments for Allyne’s car lease, but surcharged Dana
for the remaining years for a total of $33,742. The total amount
of the surcharges to be imposed against Dana was $2,497,076.52.
Willis’s attorney noted that another $72,000 must be surcharged
for overpayment of trustee fees based on another accounting
document, with which the probate court agreed.
On June 11, 2021, Dana filed a motion for relief from
default judgment in the no contest proceeding under Code of Civil
Procedure section 473, subdivision (b). Bohm filed his

42
declaration in support of the motion, attesting that his medical
emergency was sudden and unexpected. Willis opposed the
motion, and the probate court denied the motion for relief from
the judgment in the no contest proceedings.
On June 18, 2021, the probate court entered its order
removing Dana as trustee and ordering her to pay $2,132,905.20
to the trust as surcharges. The court awarded attorney fees and
costs to Willis. An amended final judgment on the removal
petition was filed on June 28, 2021.
On July 8, 2021, Dana filed a motion for relief from the
judgment in the removal proceeding under Code of Civil
Procedure section 473, subdivision (b). Willis opposed the
motion, and the probate court denied the motion.
Dana filed a timely notice of appeal from the May 26, 2021
judgment and the June 28, 2021 judgment, including all
appealable orders embraced therein.

DISCUSSION

Motion for Continuance

Dana contends the probate court abused its discretion by
refusing to continue trial in light of her attorney’s sudden
medical emergency. We agree.
Trial courts may grant continuances under California Rules
of Court, rule 3.1332(c), based on an affirmative showing of good
cause, including “unavailability of trial counsel because of death,
illness, or other excusable circumstances” or “substitution of trial
counsel, but only where there is an affirmative showing that the
substitution is required in the interests of justice.” (Cal. Rules of

43
Court, rule 3.1332(c).) In ruling on a motion for continuance, the
court considers all of the facts and circumstances relevant to the
determination, which may include the proximity to trial date,
previous delays due to any party, the length of the continuance
necessary, alternative solutions, prejudice to parties or witness as
a result of the continuance, the court’s calendar and the impact
on other pending trials, and the interests of justice. (Cal. Rules
of Court, rule 3.1331(d).)
“A motion for continuance is addressed to the sound
discretion of the trial court. (Link v. Cater (1998) 60 Cal.App.4th
1315, 1321.) However, the “ ‘trial judge must exercise his
discretion with due regard to all interests involved, and the
refusal of a continuance which has the practical effect of denying
the applicant a fair hearing is reversible error.’ ” (In re Marriage
of Hoffmeister (1984) 161 Cal.App.3d 1163, 1169.)” (Oliveros v.
County of Los Angeles (2004) 120 Cal.App.4th 1389, 1395
(Oliveros).)
“ ‘Judges are faced with opposing responsibilities when
continuances . . . are sought. On the one hand, they are
mandated by the Trial Court Delay Reduction Act (Gov. Code,
§ 68600 et seq.) to actively assume and maintain control over the
pace of litigation. On the other hand, they must abide by the
guiding principle of deciding cases on their merits rather than on
procedural deficiencies. (Thatcher v. Lucky Stores, Inc. (2000)
79 Cal.App.4th 1081, 1085.) Such decisions must be made in an
atmosphere of substantial justice. When the two policies collide
head-on, the strong public policy favoring disposition on the
merits outweighs the competing policy favoring judicial efficiency.
(Cf. Cordova v. Vons Grocery Co. (1987) 196 Cal.App.3d 1526,
1532, 1533 [when evaluating dismissal of action for delay in

44
prosecution, policy favoring expeditious administration of justice
by compelling prompt and diligent prosecution of actions
subordinate to policy favoring trial on merits].)’ (Bahl v. Bank of
America (2001) 89 Cal.App.4th 389, 398–399.)” (Oliveros, supra,
120 Cal.App.4th at p. 1395.)
In this case, the probate court refused to grant a
continuance because the court had set aside five weeks for trial,
the shutdown of the courts due to the COVID pandemic had
caused several trials to be delayed and litigants who were
waiting for trial dates were frustrated, and the parties had spent
time and money preparing for trial. The court expected Beek to
take Bohm’s place in this high-stakes litigation with a few days of
preparation, despite her representation that she had not even
planned to be present for the trial because her grandfather was
in the hospital, and despite the fact that Beek had never even
seen a civil trial. Alternatively, the court expected another
attorney to fill in for Bohm with a few days of preparation. Had
another attorney been substituted in to try the case as a result of
Bohm’s medical emergency, that circumstance alone would have
been good cause to allow a continuance of 30 to 60 days to allow
the new attorney to adequately prepare.
The fact that over a span of five years, Dana engaged
multiple attorneys for civil litigation and probate matters, both in
her capacities as trustee and as an individual beneficiary, was
not a reason to deny her request for a continuance, as Bohm was
the attorney who had prepared for trial. The fact that she sued
several of her former attorneys for legal malpractice, both in her
capacity as trustee and individually, was also not a factor to deny
a continuance. In fact, Division Four of this appellate court
found that she waited too long to file a malpractice action against

45
Masteller and her firm, so her claims were barred by the statute
of limitations. (Urick v. Lewitt, supra, B312238.) Many of the
cases that she filed against other former attorneys preserved the
statute of limitations based on potential damages in the current
matter. (Urick v. Elkins Kalt Weintraub Reuben Gartside, LLP,
supra, B310056.) Willis himself entered into a tolling agreement
with Boykin to extend the statute of limitations for legal
malpractice.
If the time and expense spent preparing for a trial were
sufficient reason to deny a continuance, no trial would be
continued based on the sudden illness or death of a party’s
attorney. “The death or serious illness of a trial attorney or a
party ‘should, under normal circumstances, be considered good
cause for granting the continuance of a trial date[.]’ (Cal. Stds.
Jud. Admin., § 9.)” (Hernandez v. Superior Court (2004)
115 Cal.App.4th 1242, 1247–1248.) The extraordinary
circumstances of the COVID pandemic and the resulting
complications required the court to provide greater
accommodations to parties, not fewer, and was not an excuse to
deprive a litigant of a fair hearing.
“We recognize, as did the courts in Bahl v. Bank of
America, supra, 89 Cal.App.4th 389, Estate of Meeker (1993)
13 Cal.App.4th 1099, Link v. Cater, supra, 60 Cal.App.4th
1315, Wantuch v. Davis (1995) 32 Cal.App.4th 786, and most
recently Hernandez[, supra,] 115 Cal.App.4th 1242, that trial
courts are under great pressure to expedite their case loads to
achieve judicial efficiency. ‘But efficiency is not an end in itself.
Delay reduction and calendar management are required for a
purpose: to promote the just resolution of cases on their merits.
(Thatcher v. Lucky Stores[, supra,] 79 Cal.App.4th 1081, 1085;

46
Gov. Code, § 68507; Cal. Stds. Jud. Admin., § 2.) Accordingly,
decisions about whether to grant a continuance or extend
discovery “must be made in an atmosphere of substantial justice.
When the two policies collide head-on, the strong public policy
favoring disposition on the merits outweighs the competing policy
favoring judicial efficiency.” (Bahl v. Bank of America[, supra,]
89 Cal.App.4th 389, [at pp.] 398–399.) What is required is
balance. “While it is true that a trial judge must have control of
the courtroom and its calendar and must have discretion to deny
a request for a continuance when there is no good cause for
granting one, it is equally true that, absent [a lack of diligence or
other abusive] circumstances which are not present in this case, a
request for a continuance supported by a showing of good cause
usually ought to be granted.” (Estate of Meeker, supra,
13 Cal.App.4th at p. 1105.)’ (Hernandez v. Superior Court,
supra, 115 Cal.App.4th at pp. 1246–1247.)” (Oliveros, supra, 120
Cal.App.4th at p. 1396.)
Dana had not previously requested a continuance. We
conclude the probate court abused its discretion under the
circumstances of this case by denying Dana’s request for a
continuance of a length necessary to accommodate her trial
attorney’s sudden and serious medical emergency.

Prejudice

Willis contends that Dana must show she was prejudiced
by the probate court’s denial of a continuance. Assuming,
without deciding, that Dana must show prejudice, the evidence in
the record demonstrates a reasonable probability that she would

47
have achieved a more favorable result had she been granted a
continuance.

A. No Contest Clauses Generally

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

3 “ ‘Pleading’ means a petition, complaint, cross-complaint,
objection, answer, response, or claim.” (Prob. Code, § 21310,
subd. (d).) A “contest” is “a pleading filed with the court by a
beneficiary that would result in a penalty under a no contest
clause, if the no contest clause is enforced.” (Prob. Code, § 21310,
subd. (a).)

48
promoting full access of the courts to all relevant information
concerning the validity and effect of a will, trust, or other
instrument. [Citation.] In light of these opposing interests, the
common law in California recognized the enforceability of no
contest clauses, albeit strictly construed, ‘so long as the condition
was not prohibited by some law or opposed to public policy.’ ”
(Donkin v. Donkin (2013) 58 Cal.4th 412, 422.)
Under current California law, a no contest clause will only
be enforced against a pleading that challenges certain property
transfers, a creditor’s claim, or “a direct contest that is brought
without probable cause.” (Prob. Code, § 21311, subd. (a)(1).) A
“ ‘[d]irect contest’ ” is a contest that alleges one or more terms of a
protected instrument are invalid based on a ground listed in
Probate Code section 21310, subdivision (b)(4), including
“[m]enace, duress, fraud, or undue influence.” “For the purposes
of this section, probable cause exists if, at the time of filing a
contest, the facts known to the contestant would cause a
reasonable person to believe that there is a reasonable likelihood
that the requested relief will be granted after an opportunity for
further investigation or discovery.” (Id., § 21311, subd. (b).)

B. Filing by a Beneficiary

To be considered a contest, the pleading at issue must have
been filed by a beneficiary. (Prob. Code, § 21310, subd. (a).) The
record in this case reflects that Dana intended to present
evidence at trial which established she filed the reformation
petition in her capacity as trustee and not as a beneficiary.
In connection with the anti-SLAPP proceedings, an
experienced and esteemed probate court judge considered the

49
2016 petition to have been filed by Dana as trustee, but this
appellate court concluded that whether Dana had filed the
petition in her role as trustee or beneficiary or both was
ambiguous from the face of the pleading. The body of the petition
referred to “Petitioner, Dana Urick, Trustee of The Allyne L.
Urick Trust,” without mentioning her status as a beneficiary,
suggesting the petitioner was Dana in her capacity as trustee.
The petition did not expressly state that Dana was filing the
petition in her individual capacity as a beneficiary, but it was
brought on behalf of an aggrieved party. Other aspects of the
reformation petition were consistent with a pleading filed by
Dana as a beneficiary, such as the attorney caption and the
signature blocks which lists her name without referring to her
position as trustee. In the context of an anti-SLAPP motion, the
evidence was reasonably susceptible of Willis’s interpretation
that Dana filed the petition in her capacity as a beneficiary.
At the trial on the no contest petition, Willis’s evidence that
Dana filed the pleading as a beneficiary consisted solely of
inferences from the ambiguous statements in the reformation
petition. He did not introduce any extrinsic evidence to support
finding that Dana brought the petition as a beneficiary, such as
other pleadings filed by Masteller on Dana’s behalf as a
beneficiary, letters Masteller wrote on behalf of Dana as a
beneficiary, or payments that Dana made personally for
Masteller’s legal work.
The record shows Dana’s extrinsic evidence, however, if
credited by the trier of fact, conclusively establishes Dana filed
the petition solely in her capacity as trustee. Masteller declared
that her law firm represented Dana in her capacity as trustee
only. The firm was not retained by, and never at any point

50
represented, Dana in her individual capacity as a beneficiary.
Dana was represented in her individual capacity as a beneficiary
by independent counsel.
Masteller explained the ambiguities in the 2016 petition.
Her intent in drafting the first sentence of the petition was to
define the petitioner as “Dana Urick, Trustee of the Allyne L.
Urick Trust.” The petition never stated that it was brought by
Dana as an individual. In the petition, Masteller referred to Civil
Code section 3399 for the proposition that a written instrument
may be reformed by an aggrieved party. In Masteller’s view,
Allyne was the aggrieved party as a result of the incorrectly
drafted trust, and Dana, as her successor trustee, brought the
petition to reform the trust to reflect Allyne’s intent. She did not
identify Dana as trustee in the attorney caption and signature
blocks, but the omissions were inadvertent, primarily because
Masteller believed the statements in the body of the petition were
controlling and sufficient to establish that the petitioner was
Dana as trustee.
Dana represented in her offer of proof that Masteller would
testify unequivocally at trial, as she had in deposition, that Dana
filed the 2016 reformation petition in her capacity as trustee. We
note that this testimony would be consistent with Masteller’s
October 2015 letter to Willis, before the reformation petition was
filed, stating that she represented Dana as trustee of the trust, in
which she copied Dana as trustee. If the trier of fact finds
Masteller’s testimony credible, then Dana’s 2016 reformation
petition could not have been filed in any capacity other than as

51
trustee.4 Masteller could not have filed a petition on behalf of a
client that she did not represent.
Other evidence in the record supports finding that Dana
did not file the pleading as a beneficiary. Dana represented she
would testify that she intended and understood the reformation
petition to be filed in her capacity as trustee. In the surcharge
trial, evidence showed the attorney fees paid in connection with
the reformation petition were paid by the trust, not by Dana
personally, which is further evidence that Dana filed the pleading
in her capacity as trustee. The trier of fact may credit Masteller’s
testimony, Dana’s testimony, or both, to find the 2016
reformation petition was filed in Dana’s capacity as trustee and
therefore was not a contest.

C. Statutory Grounds for a Direct Contest

Even if the trier of fact were to conclude that Dana filed the
2016 reformation petition as a beneficiary, however, the record
also contains evidence to support finding that the petition was
brought solely on the ground of mistake, which is not a basis for a
direct contest.
The petition expressly stated that it was based on the
ground of mistake, but mixed in allegations of misrepresentation
and nondisclosure consistent with a claim of fraud. As a result,
the grounds for the petition were ambiguous and reasonably
susceptible to Willis’s interpretation in the anti-SLAPP

4 In weighing Masteller’s credibility at trial, we note the
statute of limitations has run on any legal malpractice action
arising from Masteller’s drafting of the 2016 reformation petition.
(Urick v. Lewitt, supra, B312238.)

52
proceedings that the pleading was based on a claim of fraud.
After this appellate court found Willis had made a prima facie
showing that the petition was based on fraud, Dana filed
amended reformation petitions which omitted the ambiguous
allegations. Omission of the allegations did not substantially
change the character of the petition, suggesting that the stray
allegations of misrepresentation and nondisclosure were included
for background context and were not a basis for the pleading.
Testimony by Masteller and Dana, if credited by the trier of fact,
would clarify that the petition was brought solely on the basis of
mistake, not on the basis of fraud, duress, or undue influence.

D. Probable Cause

Even if Dana brought the petition as a beneficiary on
grounds that included fraud, duress, or undue influence, there is
a reasonable probability that she would have achieved a more
favorable outcome on the issue of probable cause to bring the
2016 reformation petition. Under Probate Code section 21311,
probable cause existed if the facts known to Dana at the time
that she filed her pleading would have caused a reasonable
person to believe that there was a reasonable likelihood that the
requested relief would be granted after further investigation or
discovery.
In Willis’s brief on appeal, he concedes it is undisputed that
Allyne’s restated trust did not qualify as a CRAT. In fact, Willis
filed a competing petition to reform the trust as a CRAT, which
the probate court granted. These circumstances support finding
that a reasonable person in Dana’s place would believe the
restated trust failed to meet Allyne’s objectives and a petition to

53
reform the trust to accomplish Allyne’s intent would be granted.
To establish probable cause for the reformation petition, Dana
did not need to show that every line of the trust would be
reformed exactly as she proposed. Multiple distribution schemes
were possible to achieve Allyne’s stated intent, and under the
statute, probable cause exists even though a beneficiary
anticipates further investigation or discovery. The trier of fact
could find Dana had probable cause to believe the probate court
would reform the trust as she requested.
One of the primary reforms that Dana proposed was to
eliminate the CRAT structure. It was undisputed that the
restated trust, as drafted, did not qualify as a CRAT. A
reasonable person could believe from the evidence that the
probate court would reform the trust to eliminate the CRAT,
because it was inappropriate for the trust’s assets and did not
achieve Allyne’s testamentary goals. Allyne consistently stated
her testamentary goals were to provide an income to Dana for her
lifetime and an income to Trentyn for a set number of years until
he reached adulthood, while providing the smallest distribution
necessary to Willis to avoid a contest of her estate plan, and to
realize any tax savings that could be achieved without interfering
with her distribution goals.
Allyne’s primary asset was a lucrative income from an
apartment building on real property that had been in the Urick
family for nearly 100 years. Dana intended to offer expert
testimony that a CRAT was unworkable for the type of assets in
Allyne’s trust. Boykin stated that he expected the property
would be liquidated and had not considered whether a CRAT was
appropriate if the property were not liquidated. The evidence
showed, however, that Allyne expected the trustee to retain the

54
apartment building. In fact, the trust expressly gave Dana the
power as trustee to retain the property and to continue to operate
the business. In Allyne’s videotaped execution of the original
trust, she wanted to extend the annuity payments to Trentyn
because she thought if her assets remained as valuable as they
had been, specifically referring to the apartment building, then
Phillips Academy would end up getting several million dollars.
This evidence showed that Allyne expected and intended the
successor trustee to retain the apartment building in the trust,
and if the character of that asset was incompatible with the
requirements of a CRAT or destroyed the tax savings of a CRAT,
as Dana intended to show at trial, then Allyne’s express desire
was for the trustee to be able to retain the apartment building
rather than be required to reform the document and liquidate the
assets to take advantage of the tax savings of a CRAT.
There is also no evidence that Allyne wished to limit
annuity payments to the beneficiaries to a maximum of 20 years.
Allyne consistently told Boykin that she wanted her children to
receive payments for their lifetimes, and she wanted Trentyn to
receive a distribution directly from her in trust for a set period of
years. In a letter, Boykin acknowledged the relatively young
ages of her children. The original trust provided annuity
payments would end at the death of the last living recipient or
when Trentyn reached age 35. In the videotaped execution of the
trust, Boykin described the term correctly once and incorrectly
another time. It is not clear which distribution Allyne believed
she had provided in her trust. The incorrect description, that
payments would be made until her children passed away and
Trentyn reached age 35, was more consistent with the
distribution that Allyne requested.

55
 Boykin testified in his deposition that he drafted a 20-year
CRAT, but the original trust does not limit the annuity payments
to 20 years. If the payments in the original trust had been
limited to a maximum of 20 years and Allyne understood the
payments were limited to 20 years, there was no reason to
extensively discuss in the videotape and in subsequent letters
whether payments should be made to Trentyn until age 45.
Allyne would have needed to live to age 105 for Trentyn to receive
payments until age 45.
The restated trust obliquely altered the distribution term
by limiting the annuity payments to the latest date allowed by
the Internal Revenue Code. Allyne would not have been alerted
merely by reading the provision that annuity payments were
limited to a maximum of 20 years regardless of the other terms
providing for payments for the lifetime of the recipients or until
Trentyn reached age 35. Unlike the original version of the trust,
Boykin did not correspond with Allyne to explain the changes to
the trust or videotape Allyne’s execution of the restatement.
Based on this evidence, a reasonable person could suspect Allyne
was not informed or did not understand the limited number of
years that the annuity would be paid in order for the trust to
qualify as a CRAT, and that the provisions conflicted with
Allyne’s stated intent to provide a lifetime income stream for her
children and distributions for Trentyn, without regard to whether
it qualified for beneficial tax treatment.
It is true that under Probate Code section 21540, if a trust
indicates the transferor’s intent to comply with the requirements
for a CRAT, the provisions of the trust must be construed to
comply with statutory provisions to conform to that intent. The
restated trust in this case, however, could not simply be

56
construed to comply with statutory provisions and had to be
conformed to qualify. Also under Probate Code section 21540, in
no event may the fiduciary take an action or have a power that
impairs the charitable deduction. This is not a case, however,
where the trustee has taken an action that will disqualify a
charitable deduction that the trust is otherwise qualified to
receive. In this case, the parties agree that the trust did not
qualify as a CRAT, and therefore, it was not entitled to a
charitable deduction as drafted. Similarly, the provisions of the
trust that required the trustee to take actions consistent with
ensuring qualification of the trust as a CRAT did not apply if the
trust had been previously determined not to qualify as a CRAT,
which the parties agreed it did not.
Dana’s proposed reformation eliminated any distribution to
Willis. Dana believed Allyne had chosen to disinherit Willis
based on Allyne’s complaints about perceived slights and
statements that Willis would receive nothing from her estate.
The distributions to Willis in the estate plans that Eick drafted
were carefully crafted to provide the minimum amount necessary
to dissuade Willis from contesting the estate plan, or
alternatively provided him nothing at all. Even after Allyne
executed the original trust prepared by Boykin providing Dana
and Willis with equal shares, she promptly signed multiple
amendments disinheriting Willis. Boykin stated that Allyne
revoked the amendment that he prepared by writing the word
revoked and tearing it up in front of him, but she kept a
handwritten version disinheriting Willis at her home without
taking the same steps to revoke it.
There was no explanatory correspondence exchanged prior
to Allyne’s restatement of the trust or videography of Allyne’s

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execution of the restated trust, and the provisions added to the
restated trust primarily related to the CRAT. A reasonable
person in Dana’s position, knowing her mother said she had
disinherited Willis, could suspect the trust was restated to
include several boilerplate provisions necessary to qualify the
trust as a CRAT, but copied the distribution in the original trust
through oversight or mistake. Boykin’s explanation that Allyne
chose to provide equal shares for Willis and Dana in the restated
trust simply because Willis would have fought about any other
distribution was not consistent with Allyne’s previous statements
to Dana, her statements to her prior estate planning attorney, or
her conduct. Common estate planning techniques existed to
provide a distribution to Willis that was less than the amount
provided to Dana, yet substantial enough to discourage him from
litigation. A reasonable person with the information that Dana
had in 2016 could believe that further investigation and discovery
would support that Allyne did not intend to provide equal shares
of her estate to her children, and the drafter of the trust had
provided them with equal shares by mistake. In the event that
further investigation and discovery affirmed Allyne’s intent to
treat her children equally, the reformation petition could easily
have been amended by the probate court to insert Willis’s name
as a coequal beneficiary to Dana, and granted as amended.
Similarly, Dana’s proposed reformation significantly
limited the likelihood that Phillips Academy would receive a
distribution. Dana’s evidence suggested her mother selected
Phillips Academy as a remainder beneficiary simply for the
unlikely event that there were assets left in her estate after the
distributions provided. Boykin provided calculations to Allyne
that showed all of her assets would be distributed through

58
annuity payments to the beneficiaries, such that the remainder
received by Phillips Academy would be zero. Allyne executed her
original trust on the basis of these calculations, with the
understanding and agreement that the trust likely would not
qualify for favorable tax treatment as a result. When Boykin
estimated that Phillips Academy might receive as much as
$3,000,000 to $10,000,000, Allyne decided to sign the document,
but continue to consider the remainder to Phillips Academy.
Dana’s proposed reformation could easily have been amended to
provide a remainder amount to Phillips Academy approximating
the amount that Allyne expected the school would receive under
the trust that she signed.
In short, the parties agreed the trust did not qualify as a
CRAT. Both parties filed reformation petitions. Willis’s
arguments for reforming the trust to qualify as a CRAT were
primarily based on boilerplate trust provisions and statutory law.
His petition flipped Allyne’s distribution goals on their head to
make tax savings from the charitable remainder the primary goal
of the plan, with the distributions to named beneficiaries
subservient to qualification of the trust as a CRAT. Dana had as
much evidence of Allyne’s testamentary intent, or more, to
support her effort to reform the petition when she filed it in 2016.
If Dana had been able to present her evidence at trial, there is a
reasonable probability that the trier of fact would have concluded
Dana had probable cause to file her 2016 reformation petition
based on the facts known to her at the time.

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 E. Removal and Surcharge

The order granting Dana’s removal and surcharging her for
various costs was based in substantial part on the probate court’s
order granting the no contest petition. Both orders must be
reversed and remanded for further proceedings.

DISPOSITION

The order granting the petition for instructions as to
violation of the no contest clause and the order granting the
petition for removal and surcharge are reversed. The cause is
remanded for a new trial. The reversal of the petition for
removal does not impact the probate court’s January 23, 2020,
orders suspending Dana as trustee and appointing interim
successor trustees, which orders remain in effect. Appellant
Dana Urick is awarded her costs on appeal.
NOT TO BE PUBLISHED.

MOOR, J.

We concur:

BAKER, Acting P. J.

KIM, J.

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