Sachs v. Sachs ( 2020 )

Filed 1/7/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
BENITA SACHS, as Trustee, 2d Civil No. B292747
etc., (Super. Ct. No. 18PR00032)
(Santa Barbara County)
Plaintiff and Respondent,
v.
AVRAM M. SACHS,
Defendant and Appellant.
Probate Code1 section 21135 provides that transfers
of property to a person during the transferor’s lifetime will be
treated as an at death transfer to the person under certain
conditions. All of these conditions require a writing. Here we
decide that the transferor’s record of amounts he periodically
distributed to his children is a writing that satisfies the
requirements of section 21135.
Avram M. Sachs appeals from the probate court’s
order granting a petition for instructions. (§ 17200.) The order
1
All further statutory references are to the Probate Code
unless otherwise specified.
allowed the trustee (his sister, Benita Sachs) to treat lifetime
gifts to trust beneficiaries as advances on their inheritances. We
affirm.
FACTUAL AND PROCEDURAL HISTORY
David L. Sachs had two children, Benita and Avram.2
David established a trust in 1980 when Benita was 20 years old
and Avram was 12. The trust provided for small distributions to
other beneficiaries, but most of the trust corpus would be
distributed to Benita and Avram equally on David’s death. David
was the original trustee.
In 1989 David began to keep track of money
distributed to his children on papers he referred to as the
“Permanent Record.” When a child asked for money, David
would tell the child that the distribution would be reflected on
the Permanent Record.
In June 2013 David began to experience cognitive
problems due to a stroke. He hired Ronda Landrum as his
bookkeeper to help manage his finances. At David’s instruction
Landrum continued to make distributions to Avram and Benita.
Landrum said David was adamant that she keep a record of the
distributions. After a distribution was made David would often
confirm that the distribution was on the list. Landrum kept a list
for each child in the form of an electronic spreadsheet. David told
Landrum on more than one occasion that keeping the list was
important so that payments made to his children could be
deducted from their respective inheritances.
In October 2013 David resigned as trustee and
Benita became the successor trustee. Following her appointment,
2 We refer to all parties by their first name for ease of
identification. No disrespect is intended.
2
she found the Permanent Record among her father’s papers. The
record consists of a separate file for each child. The entries were
made entirely in David’s handwriting. The papers list the dates
and the amounts distributed beginning when each child attained
age 30. The entries were not all made with the same pen, and
the papers were of different types and ages.
In September 2014 Landrum advised the children
that expenditures for David’s residential care and payments to
the children were depleting the trust at a rapid rate. Avram
continued to ask Benita for distributions from the trust. Benita’s
resistance caused friction between the siblings. In a series of e-
mails Avram sought to assure Benita by repeatedly stating that
the distributions would go on his record. One of the e-mails
acknowledged that previous distributions made by David went on
his record.
In October 2015 Benita learned that Avram was
contending the Permanent Record did not exist or that he was
not bound by it. By then, David’s mental condition had
deteriorated to such an extent that he could not be asked about
his intention in creating the Permanent Record.
After David’s death, Benita filed this petition for
instructions to equalize the distribution of assets from the trust.
She claimed that the disparity in lifetime distributions in favor of
Avram should be deducted from Avram’s distributive share of the
trust. The trial court granted the petition, and found that Avram
received $451,027 more than Benita in lifetime distributions.
DISCUSSION
Section 21135, subdivision (a) provides in part:
“Property given by a transferor during his or her lifetime to a
person is treated as a satisfaction of an at-death transfer to that
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person in whole or in part only if one of the following conditions is
satisfied: [¶] (1) The instrument provides for deduction of the
lifetime gift from the at-death transfer. [¶] (2) The transferor
declares in a contemporaneous writing that the gift is in
satisfaction of the at-death transfer or that its value is to be
deducted from the value of the at-death transfer. [¶] (3) The
transferee acknowledges in writing that the gift is in satisfaction
of the at-death transfer or that its value is to be deducted from
the value of the at-death transfer.” (Italics added.)
Subdivision (a)(2) has been satisfied
No special form or even the decedent’s signature is
necessary to satisfy the writing required by section 21135,
subdivision (a)(2). (Estate of Nielsen (1959) 169 Cal.App.2d 297,
303.) Here, the trial court could reasonably conclude that the
Permanent Record is sufficient to satisfy the writing
requirement. The writing is in David’s hand and appears to be
contemporaneous. The court noted David used different pens and
the papers on which the notations were made were of various
ages. As the court stated, “The existence of [David’s] record, in
and of itself is highly persuasive . . . .” In fact, keeping such a
record would seem to have no purpose other than to equalize
distributions between David’s children.
Avram cites In re Estate of Vanderhurst (1915) 171
Cal. 553, for the proposition that unsigned ledgers alone are
categorically insufficient to establish a donor’s intent to treat
lifetime transfers as advancements. In Vanderhurst the testator
died leaving several children. His will provided that sums paid to
a son and his children as shown by testator’s books of accounts
shall be treated as advancements. The court held the trial court
erred in treating the amounts paid to his two daughters as shown
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in testator’s books of accounts as advancements, based on the
language of the will. Vanderhurst is simply a case involving the
construction of a will. It does not stand for the proposition that
unsigned ledgers alone are categorically insufficient to establish
a donor’s intent.
Avram argues the Permanent Record was not
properly authenticated. There is no particular requirement for
how a writing is authenticated. (Evid. Code, § 1410.) The trial
court’s finding that sufficient foundational facts were shown is
reviewed for abuse of discretion. (Ramos v. Westlake Services
LLC (2015) 242 Cal.App.4th 674, 684.) Benita’s testimony that
she found the Permanent Record among her father’s papers, and
that the record is in her father’s hand is sufficient. There was no
abuse of discretion.
Parole evidence was properly admitted to interpret the writing
Avram argues the trial court erred in considering
parole evidence of David’s intent. If parole evidence was
necessary, the court did not err in considering it.
Section 21102, subdivision (c) provides that extrinsic
evidence is admissible, to the extent otherwise authorized by law,
to determine the intention of the transferor. The subdivision
applies to a will, trust, deed, or any other instrument. (§ 21101.)
Such extrinsic evidence includes parole evidence. (Estate of
Karkeet (1961) 56 Cal.2d 277, 283 [trial court erred in excluding
testimony to aid in interpreting will].) Nothing in the language
of section 21135, subdivision (a)(2) indicates that the writing
required by that subdivision is an exception to the rule allowing
parole evidence to aid in interpreting a writing.
Avram refers us to what he considers the legislative
history of section 21135, consisting of reports by the California
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Law Revision Commission (CLRC) calling for the relaxation of
requirements for proving an advancement by repealing section
21135. An attorney responding to the report opposed repealing
section 21135, and recommended an amendment to the section
eliminating the need for a writing to prove an advancement.
Avram argues the Legislature’s failure to adopt the attorney’s
proposed amendment shows that it rejected the use of parole
evidence in the context of section 21135.
That the Legislature ignored the report and comment
says nothing about legislative intent. No member of the
Legislature is required to read a CLRC report, much less consider
a private attorney’s comment on it. Moreover, the report and
comment recommended eliminating the requirement of a writing
to prove an advancement. They say nothing about the use of
parole evidence to explain the writing required by section 21135,
subdivision (a)(2).
Nor do the cases on which Avram relies convince us
that parole evidence is not admissible to explain the writing. In
Estate of Rawnsley (1949) 94 Cal.App.2d 384, 387, no writing was
offered into evidence. The only evidence offered to show the
testator intended an advancement was parole evidence. The
court’s statement that parole evidence is excluded must be read
in that context. Rawnsley does not hold that parole evidence
cannot be admitted to authenticate and explain a writing.
In Estate of Lackey (1971) 17 Cal.App.3d 247, a
husband and wife made reciprocal wills. The wills provided for
gifts to specified relatives upon the death of the survivor. Wife
predeceased husband. After wife died, husband distributed
checks to the relatives named in the wills in the amounts
specified in the wills. On husband’s death, his personal
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representative claimed the checks were advances of the amounts
specified in his will. Most of the beneficiaries acknowledged in
writing that the gifts were advances, but two of the beneficiaries
did not. Husband’s personal representative sought to introduce
evidence of a letter from husband to the beneficiaries stating
husband was paying the beneficiaries what wife’s will “‘stated
before it was probated.’” (Id. at p. 252.) The Court of Appeal
stated that the letter, assuming it was admissible, was not
evidence of husband’s intent to make advances from amounts
stated in his will, because it referred only to his wife’s will; that
the checks indicated nothing of his intent to make advancements;
and that oral evidence was not admissible. (Id. at pp. 252-253,
citing Estate of Rawnsley, supra, 94 Cal.App.2d 384.) In so
holding the Court of Appeal acknowledged its holding defeated
husband’s intent. (Lackey, at p. 253.)
Avram’s reliance on Lackey is misplaced. Assuming,
as the Court of Appeal did, that the letter was admissible for the
truth of the matter, the letter stated husband was making
payments under wife’s will, not his own. Moreover, the court
cited Rawnsley for the principle that parole evidence is
inadmissible to determine the testator’s intent to make
advancements without noting that the only evidence offered in
Rawnsley was parole and that there was no writing to interpret.
The holding in Lackey violates sections 21101 and 21102,
subdivision (c), allowing extrinsic evidence to determine the
intent of the transferor. We decline to follow Lackey.
Subdivision (a)(3) has been satisfied
Avram contends the e-mails he sent to Benita do not
constitute sufficient evidence to satisfy section 21135, subdivision
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(a)(3), that “[t]he transferee acknowledges in writing that the gift
is in satisfaction of the at-death transfer.” We disagree.
Avram argues the statement in his e-mails that “it
goes on my record” is too amorphous to constitute an
acknowledgement. But Avram’s argument is based on the claim
that parole evidence is inadmissible. We have rejected that
argument.
The statement (“it goes on my record”) was made in
the context of Avram’s request for distributions from the trust.
Given the context, the trial court could reasonably conclude the e-
mails constitute a written acknowledgement that the
distributions are advancements.
Avram argues that he never gave such an
acknowledgement to David. But subdivision (a)(3) does not
require that the acknowledgment be contemporaneous with the
advancement. An acknowledgment that a distribution goes on
Avram’s record as an advancement can reasonably be construed
as an acknowledgment that prior distributions reflected on the
record were also advancements.
The court properly found a disparity in payments
between the parties
Avram contends Benita failed to demonstrate there
is a disparity between amounts given to Avram and Benita. We
again disagree.
Avram’s argument is based on a view of the evidence
most favorable to himself. But that is not how we view the
evidence. We look only to the evidence supporting the prevailing
party. (GHK Associates v. Mayer Group, Inc. (1990) 224
Cal.App.3d 856, 872.) We reject evidence unfavorable to the
prevailing party as not having sufficient verity to be accepted by
8
the trier of fact. (Ibid.) Where the trier of fact has drawn
reasonable inferences from the evidence, we have no power to
draw different inferences. (McIntyre v. Doe & Roe (1954) 125
Cal.App.2d 285, 287.) The trier of fact is not required to believe
even uncontradicted testimony. (Sprague v. Equifax, Inc. (1985)
166 Cal.App.3d 1012, 1028.)
Avram argues there is insufficient evidence that the
Permanent Record is “complete, accurate and/or corresponds to
lifetime gifts that [David] made to his children.” But it does not
purport to be a complete and accurate record of lifetime gifts. It
only reflects those gifts David chose to be taken into account in
adjusting the final trust distributions. In addition, Avram’s e-
mails to Benita confirmed that the distributions Benita made to
Avram would go on his Permanent Record.
Avram did not challenge any specific distribution in
the trial court, and he waited until his reply brief to challenge
specific distributions on appeal. This presents a double bar to
considering the issue. We will not consider points on appeal that
were not presented to the trial court. (In re Marriage of Hinman
(1997) 55 Cal.App.4th 988, 1002 [failure to raise the point in the
trial court waived right to challenge on appeal].) Moreover, we
will not consider matters raised for the first time in the reply
brief. (Scott v. CIBA Vision Corp. (1995) 38 Cal.App.4th 307,
322.)
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DISPOSITION
The judgment (order granting petition for
instructions) is affirmed. Benita shall recover her costs on
appeal.
CERTIFIED FOR PUBLICATION.
TANGEMAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
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Colleen K. Sterne, Judge
Superior Court County of Santa Barbara
______________________________
The Stone Law Group, Kenneth H. Stone and Scott
G. Braden, for Defendant and Appellant.
Reicker, Pfau, Pyle & McRoy, Alan A. Blakeboro,
Diana Jessup Lee and Meghan K. Woodsome, for Plaintiff and
Respondent.