## Facts

- Ardene Joan Lange executed a revocable living trust in 1997.
- The trust’s only significant asset was Lange’s residence.
- The trust provided that, upon Lange’s death, the trustee had sole discretion to use any and all trust assets to care for any cats in Lange’s possession at death.
- After providing for the cats, the trust residue was to be distributed 58% to Lange’s daughter, Lynda Nusser, and 42% to Lange’s other two children and one grandchild (the other beneficiaries).
- The trust contained a no-contest clause stating that a beneficiary who contested the trust would forfeit any interest.
- Nusser lived with Lange in the home from 2004 until Lange’s death in 2007 and then became successor trustee.
- After Lange’s death, Nusser continued to live in the house and cared for the cats for more than a year.
- Nusser did not pay rent, but she paid house expenses and the costs of caring for the cats; she also allowed her children to live in the home rent-free in exchange for help with expenses.
- The other beneficiaries filed a probate petition seeking interpretation of the trust, an accounting, damages for alleged breach of fiduciary duty, and removal of Nusser as trustee.
- The petition asserted that the cat-care provision was unenforceable or ambiguous because no cats were identified, and it asked the court to determine whether any cats covered by the provision were still alive.
- The petition also sought directions that would allow alternative placement of any living cats, sale of the residence, and distribution of the proceeds to the residual beneficiaries once the cat-care purpose had ended.
- The probate court ruled for Nusser and found that the petition violated the no-contest clause, resulting in forfeiture of the other beneficiaries’ interests.
- The other beneficiaries appealed the forfeiture determination.

## Issues

1. Whether the residual beneficiaries’ petition seeking interpretation of the trust’s cat-care provision, an accounting, and fiduciary relief constituted a “contest” that triggered the trust’s no-contest clause under then-applicable California law.
2. Whether requests to determine the existence or survival of cats covered by the trust and to direct distribution after the cat-care purpose ended were requests to administer and carry out the trust, rather than an attack on the trust’s validity or dispositive plan.

## Decision

- The Court of Appeal reversed the probate court’s order enforcing the no-contest clause forfeiture.
- The court held that the beneficiaries’ petition was not a “contest” of the trust within the meaning of the no-contest clause and the governing Probate Code provisions in effect at the time.
- The matter was remanded for further proceedings consistent with the reversal of the forfeiture ruling.

## Legal Principles

- Under former California law governing no-contest clauses (including former Probate Code provisions addressing when a filing constitutes a “contest”), courts distinguish between filings that attack the validity of the instrument or seek to defeat its dispositive terms and filings that seek interpretation, instructions, or supervision of administration.
- A petition asking the court to interpret a trust provision, resolve ambiguity relevant to administration, or determine facts needed to apply the trust’s distribution sequence can be treated as an effort to carry out the settlor’s plan rather than a prohibited contest.
- California’s animal-trust statute (Probate Code § 15212) contemplates that an animal-care trust ends when the last covered animal dies, after which remaining trust property passes to the remainder beneficiaries as directed; a petition requesting determinations needed to apply that termination-and-distribution scheme is consistent with administration of the trust.
- Claims for accounting, surcharge or damages for breach of fiduciary duty, and removal of a trustee generally challenge the trustee’s conduct in managing trust assets and exercising discretion, not the validity of the trust itself, and therefore do not automatically trigger a no-contest clause absent language that clearly and enforceably reaches such actions.

## Conclusion

The Court of Appeal held that the residual beneficiaries did not forfeit their interests by filing a probate petition seeking interpretation and court instructions regarding the trust’s cat-care provision, along with an accounting and fiduciary-duty remedies, because the petition sought judicial guidance and oversight to administer the trust and determine when distribution to the human remainder beneficiaries should occur, rather than to invalidate the trust or defeat its intended distribution plan.


Lange v. Lynda Nusser, as Trustee, 2011 Cal. App. Unpub. LEXIS 1576 (2011)