Estate of Goulet

898 P.2d 425, 10 Cal. 4th 1074, 43 Cal. Rptr. 2d 111, 95 Cal. Daily Op. Serv. 6014, 95 Daily Journal DAR 10251, 1995 Cal. LEXIS 4315

• Court: California Supreme Court
• Decided: July 31, 1995
• Docket: S042636
• Status: Published

Opinions

Opinion

WERDEGAR, J.

Has a trustee the right to appeal an order determining that a trust beneficiary’s proposed claim would not violate the trust’s no contest clause? For the following reasons, we conclude the trustee does. Accordingly, we reverse the Court of Appeal, which held to the contrary.

Background. 1

On August 23, 1992, Donald R. Scott Goulet (Goulet) and Esther Montello (Montello), acquaintances for many years, married in Las Vegas, Nevada. They separated the next day. At the time, Goulet was terminally ill with Acquired Immune Deficiency Syndrome.

The same day as the marriage, Goulet and Montello executed a document entitled “Premarital Agreement.” The agreement provided, among other things, that the parties had separate property interests in premarital and postmarital assets and acquisitions. In addenda to the agreement executed the same day, Goulet promised to pay Montello $2,500 per month until she reached age 75, subject to cost-of-living increases. He also promised to buy her a home worth at least $500,000, lease her a new automobile, pay her and her children’s health and life insurance premiums, and pay her living expenses until the home was purchased.

Six weeks after the marriage, Goulet filed a petition for nullity of marriage in Los Angeles Superior Court, alleging he had been of unsound mind. Montello defaulted, and the court rendered a judgment of nullity on the ground alleged.

While the nullity proceedings were pending, Goulet executed a will and declaration of trust. The will declared all of Goulet’s property was his separate property pursuant to the provisions of the premarital agreement and transferred the entire estate to the trust. The will also stated Montello was disinherited, with Goulet “having made adequate provision for her and her children” in the trust. The will included a no contest clause, which revoked the share or interest of any beneficiary or heir who “contests this will or any of its provisions . . . .”

The trust instrument included general and charitable dispositions of real and personal property to numerous beneficiaries. It stated Montello would receive “$75,000 provided that she does not contest the validity of this trust or Settlor’s will . . . .” The trust instrument also contained a no contest clause revoking the interest of any beneficiary who “contests in any court the validity of this trust or of the Settlor’s Last Will or seeks to obtain an adjudication in any proceeding in any court that this trust or any of its provisions or that such will or any of its provisions is void, or seeks otherwise to void, nullify, or set aside this trust or any of its provisions

After rendition of the judgment of nullity, Goulet executed a codicil to the will and an amendment to the declaration of trust. The codicil recited that the marriage had been annulled. The codicil nominated Goulet’s friends, Clint Burke (Burke) and John J. Ferry (Ferry), to be co-executors of the will. The trust amendment restated (with some modifications) the $75,000 disposition to Montello. It described Montello as Goulet’s “former spouse.” The trust amendment also named Burke and Ferry as successor trustees and added a $50,000 gift to Ferry.

Goulet died on March 28, 1993. According to counsel, in November 1993, Goulet’s estate had a value of $3.5 million to $4 million. When future payments to be received under a series of contracts were included, the estate had a value of $5 million to $5.5 million.

The probate of Goulet’s will is in San Francisco Superior Court. In the probate proceeding, Montello filed a petition, pursuant to Probate Code section 21320,² for an order determining whether her proposed filing of a creditor’s claim against the estate, to enforce her purported rights under the premarital agreement, would constitute a contest within the meaning of the no contest clauses of the will and trust. Ferry filed a response in opposition. The probate court issued an order declaring the proposed filing would not constitute a contest of the will or trust instrument.

Ferry purported to appeal the section 21320 order. Relying on Smith v. Esslinger (1994) 26 Cal.App.4th 579 [31 Cal.Rptr.2d 673], the Court of Appeal dismissed the appeal on the ground Ferry lacked standing. We granted review on the question whether a trustee has the right to appeal an order determining that a trust beneficiary’s proposed claim would not violate the trust’s no contest clause.

Discussion

In the only published California opinion directly addressing the issue before us, the Fourth District Court of Appeal held trustees of an inter vivos trust were not, within the meaning of Code of Civil Procedure section 902, “aggrieved”³ by a probate court’s determination under section 21320 that a beneficiary’s petition for accounting and other remedies did not constitute a contest within the meaning of the trust’s no contest clause, and therefore lacked standing to appeal that determination. (Smith v. Esslinger, supra, 26 Cal.App.4th at p. 583; but see Poag v. Winston (1987) 195 Cal.App.3d 1161, 1165 [241 Cal.Rptr. 330].) The Court of Appeal in this case followed Smith v. Esslinger, supra, in concluding Ferry lacked standing to appeal the section 21320 determination on Montello’s proposed claim.

The Court of Appeal in Smith acknowledged a trustee acting in a representative capacity has standing to appeal an order affecting the existence, modification or termination of the trust. (Smith v. Esslinger, supra, 26 Cal.App.4th at p. 583, citing Estate of Bunn (1949) 33 Cal.2d 897, 899 [206 P.2d 635]; and 9 Witkin, Cal. Procedure, supra, Appeal, § 146, pp. 154-155.) The court, however, further observed that “a trustee acting in a representative capacity does not have standing to appeal an order determining ‘the conflicting claims of beneficiaries’ or ‘which beneficiaries are entitled to share in a particular fund’ because a trustee has the duty to deal impartially with the beneficiaries.” (26 Cal.App.4th at p. 583, quoting Estate of Ferrall (1948) 33 Cal.2d 202, 204 [200 P.2d 1, 6 A.L.R.2d 142].) Following a 1992 decision by a Missouri intermediate appellate court, the Smith court concluded application of these principles leads to the conclusion a trustee lacks standing to appeal a section 21320 determination. (Smith v. Esslinger, supra, 26 Cal.App.4th at pp. 854-855, citing Krause v. Tullo (Mo.App. 1992) 835 S.W.2d 488, 491.)

We disagree. Considerations of law and policy lead us to conclude a trustee must be permitted to appeal an order determining a trust beneficiary’s proposed claim would not violate a trust’s no contest clause.⁴

When a probate court erroneously determines under section 21320 that a proposed claim by a beneficiary of a trust would not violate the trust’s no contest clause, there may be no other beneficiary who is both “aggrieved” within the meaning of Code of Civil Procedure section 902 and who is financially or otherwise motivated or situated to pursue an appeal. Because appealing an erroneous section 21320 determination may be risky or expensive or both, aggrieved beneficiaries may choose not to appeal, even though they have standing to do so.

Indeed, beneficiaries of the Donald R. Scott Goulet Trust who are aggrieved by the probate court’s section 21320 determination, Goulet’s friend Burke and Goulet’s first cousins Daniel A. Goulet, Raymond E. Goulet and Susan M. Roy,⁵ have not appealed. Neither Burke nor Goulet’s first cousins participated in the section 21320 proceedings below. Nevertheless, as they were legally “aggrieved” by the section 21320 order, they could have become parties of record and obtained the right to appeal by moving to vacate the judgment pursuant to Code of Civil Procedure section 663. (County of Alameda v. Carleson, supra, 5 Cal.3d at p. 736.) The record does not disclose their reasons for not appealing.

Where there is no beneficiary who is both “aggrieved” within the meaning of Code of Civil Procedure section 902 and who is financially or otherwise motivated or situated to appeal an erroneous section 21320 determination, if the trustee is not permitted to appeal, the trustor’s intent is left undefended. Montello argues that, even barring an appeal, Goulet’s intent is adequately protected, despite an adverse section 21320 determination, because Ferry may reject Montello’s claim when presented to the estate and oppose any subsequent action on it. This argument, although superficially persuasive, is flawed. The grounds on which a fiduciary may oppose an action on a rejected claim do not include all those he might, were he permitted, advance on appeal in the section 21320 context. Most importantly, a section 21320 determination that a proposed claim would not violate a no contest clause conclusively determines that issue. The doctrines of law of the case or collateral estoppel would, therefore, presumably bar Ferry from arguing in the same or subsequent litigation that the claim contravenes Goulet’s intent. Thus, rejecting the claim and opposing it in subsequent litigation provides Ferry with at best an illusory substitute for the right to appeal the adverse section 21320 determination.

Montello also argues that, because the section 21320 determination in this case did not endanger the trust assets, question the trustee’s rights or powers or subject the trustee to potential personal liability, the trustee is not a “party aggrieved” for the purposes of Code of Civil Procedure section 902 and therefore lacks standing to appeal. (See Smith v. Esslinger, supra, 26 Cal.App.4th at p. 584.) She further argues the section 21320 determination not only fails to affect the trustee adversely, it actually assists him, by assuring him Montello’s proposed claim will not violate the trust’s no contest clause. (See Krause v. Tullo, supra, 835 S.W.2d at p. 490.)

Contrary to these arguments, we conclude the trustee in this case is, in reality, a “party aggrieved” for the purposes of Code of Civil Procedure section 902. Similar to a personal representative, the trustee owes fiduciary duties which require him to defend the trust corpus against unwarranted diminution until it is distributed to the beneficiaries. (In re Heydenfeldt (1897) 117 Cal. 551, 553-554 [49 P. 713]; Estate of Beach, supra, 15 Cal.3d at p. 637, citing numerous authorities.) “ ‘To say that an administrator is not aggrieved, and, therefore, has no right of appeal from a decree which he deems to be unjust, unwarranted, and detrimental to the estate which has been confided to his care, would be to deny him the performance of a plain duty devolving upon him ....’” (Estate of Kessler (1948) 32 Cal.2d 367, 370 [196 P.2d 559].) We “cannot see that it matters that a claim is made against the estate under the will, or by one who claims to be an heir, or a part of the family of the deceased, and as such entitled to an allowance. If it may diminish the estate to be finally distributed, or may make the fund from which the creditors are to be paid insufficient for that purpose, the administrator is interested, and, in the event of an adverse ruling is a party aggrieved.” (In re Heydenfeldt, supra, 117 Cal. at p. 553.) By analogy with the foregoing, Montello’s claim in this case may substantially diminish the funds to be distributed to Goulet’s intended beneficiaries. The claim therefore implicates the trustee’s fiduciary duty to protect the trust corpus. Insofar as Montello might ultimately articulate a claim sufficiently large to necessitate modification of Goulet’s distributional scheme, the trustee’s fiduciary duty to administer the trust in accord with the trust instrument (§ 16000) is also implicated.

Montello does not dispute that the trustee, in fulfilling his fiduciary duty to defend the trust, is entitled to oppose a beneficiary’s section 21320 application seeking a determination that a particular action would not constitute a contest within the meaning of the trust instrument’s no contest clause. We agree with Ferry that to deny the trustee the right to appeal an adverse ruling seems anomalous. If a trustee’s duties to protect the trust corpus and seek to effectuate the trustor’s intent are not implicated by court approval of a section 21320 application, it follows he should be prohibited from responding to section 21320 applications in the first instance. The inference his duties are not implicated is contrary to the statutory scheme, which requires the trustee to administer the trust in accord with the trust instrument (§ 16000) and, as discussed below (see fn. 9, post), requires the trustee (or personal representative) to be notified of section 21320 applications (§§ 1220, 21322). Accordingly, we reject the inference and conclude the trustee’s duties to protect the trust corpus and seek to effectuate the trustor’s intent are implicated by an adverse section 21320 ruling.⁶

It may be argued there is no anomaly in the law’s permitting the trustee to oppose objectionable section 21320 applications only until an authoritative order issues and thereafter requiring the trustee to acquiesce in the order. Such a rule—the argument would run—parallels that forbidding the personal representative, even though he “is specially entrusted with the duty and power to defend the rights of all beneficiaries until distribution” (In re Heydenfeldt, supra, 117 Cal. at pp. 553-554, italics added), to appeal from a final distribution order. (Estate of Kessler, supra, 32 Cal.2d at p. 369, and authorities cited there.) Both rules (the former at issue in this case and the latter not) arguably balance a fiduciary’s obligation to defend a fund against unwarranted depletion with the obligation to remain neutral among beneficiaries’ conflicting claims. Both arguably posit the issuance of an authoritative court order determining the claim is legitimately advanced as the point at which the trustee’s duty of neutrality supersedes the duty zealously to defend the trust corpus.

We conclude such a comparison is flawed. The rule forbidding a personal representative to appeal a final distribution order is supported by considerations not necessarily obtaining upon the issuance of a section 21320 determination.

“After the decree [of distribution,] the administration has served its purpose, and the claims of the creditors have been protected.” (Estate of Kessler, supra, 32 Cal.2d at p. 369.) By then, the personal representative “has administered the estate, and under the statute has called all parties interested into court by a proper notice and petition . . . .” (In re Heydenfeldt, supra, 117 Cal. at p. 553.) Accordingly, at that point, “[i]t is generally recognized that executors and administrators acting in their representative capacities are indifferent persons as between the real parties in interest and consequently cannot litigate the conflicting claims of heirs or legatees at the expense of the estate.” (Estate of Kessler, supra, 32 Cal.2d at p. 369.)⁷

By contrast, a section 21320 determination may issue anytime during a probate proceeding (§ 21322), or prior to the commencement of a probate proceeding (§ 21321, subd. (b)), or even while the transferor is still living (id., subds. (c) and (d)), as long as “an instrument containing a no contest clause is or has become irrevocable . . . .” (§ 21320, subd. (a).) At such times, the potential remains for a beneficiary’s proposed action to imperil the trust corpus or the distributional scheme generally. It is the fiduciary’s role to defend the fund and effect the intended distributional scheme. “It has accordingly been held that an executor or administrator may appeal from a decree of partial distribution, because the assets of the estate may not be sufficient to discharge the claims of creditors [citations] or because the status of the assets may be so highly uncertain that such an order may be embarrassing to the proper administration of the estate.” (Estate of Kessler, supra, 32 Cal.2d at p. 370, citing Estate of Murphy, supra, 145 Cal. at p. 465; Estate of Mitchell (1898) 121 Cal. 391 [53 P. 810]; Estate of Colton (1912) 164 Cal. 1, 5 [127 P. 643].) Likewise, “[a]n executor or administrator may appeal from an order awarding a family allowance to the widow or children of the decedent, since he is an aggrieved party by virtue of his duty to protect the estate from depletion from an extravagant family allowance . . . .” (Estate of Kessler, supra, 32 Cal. at p. 370, citing Estate of Snowball (1909) 156 Cal. 235, 237 [104 P. 446]; In re Welch (1895) 106 Cal. 427, 429 [39 P. 805].) Permitting the trustee to appeal from an adverse section 21320 determination similarly empowers him to defend the rights of all beneficiaries until the trust corpus is distributed.

Further, a rule forbidding trustees to appeal section 21320 determinations, by decreasing the likelihood an erroneous determination will be corrected on appeal, would militate in some degree against the enforceability of no contest clauses. “No contest clauses are valid in California and are favored by the public policies of discouraging litigation and giving effect to the purposes expressed by the testator.” (Burch v. George (1994) 7 Cal.4th 246, 254 [27 Cal.Rptr.2d 165, 866 P.2d 92]; see also § 21303 [no contest clauses generally enforceable].) To the degree it militates against enforceability of no contest clauses, a rule forbidding a trustee to appeal from a section 21320 determination would run contrary to these public policies.

Our resolution accords with the public policy favoring enforcement of no contest clauses we recently affirmed in Burch v. George, supra. As noted, the policy is important because it defends the interests in effectuating testators’ intentions "and in minimizing litigation. (7 Cal.4th at p. 254.) Permitting the trustee to appeal will allow him to defend the trustor’s plan by fully litigating on its behalf, even where no aggrieved beneficiary is willing or able to carry that burden on his or her own resources.⁸ Moreover, although permitting the trustee to appeal an adverse section 21320 ruling may engender a marginal increase in the number of section 21320 appeals, the rule ultimately will tend to minimize litigation. By increasing the probability an erroneous section 21320 determination will be successfully appealed, the rule strengthens section 21320’s effect of deflecting claims that, if pursued, would likely wind up being litigated.

Permitting trustees to appeal adverse section 21320 determinations accords with legislative intent. The statutory requirement that notice be provided the trustee or personal representative when a section 21320 application is filed (see §§ 21322 and 1220; see also fn. 9, post), evidences the Legislature’s intent that fiduciaries be involved in litigation of such applications. The statutory scheme contains no limitation on the fiduciary’s participation at the appeal stage or at any other point. If the Legislature had meant for any such limitation to exist, it presumably could have said so. Moreover, if the Legislature disagrees with our understanding of the trustee’s proper role in section 21320 proceedings, there is no bar to its imposing a contrary rule. The Legislature remains free to close any gap it perceives in the statutory scheme by codifying the trustee’s duties with regard to section 21320 determinations.⁹

Permitting trustees to appeal adverse section 21320 determinations will foster judicial economy. As noted, that trustees are permitted to oppose objectionable section 21320 applications in the first instance is not disputed. A trustee in fulfilling this obligation predictably will expend resources and develop expertise regarding the relationship of the proposed claim and the no contest provision of the trust. So long as trustees are forbidden to appeal section 21320 determinations, however, reviewing courts will be denied the benefit of such expenditures and expertise, being limited to consideration of the presentations of any aggrieved beneficiaries who decide to appeal. Permitting trustees to appeal will make available to the judicial system on review the expertise trustees routinely develop in initial section 21320 proceedings.

Finally, permitting the trustee in this case to appeal the section 21320 determination that Montello's claim would not violate the trust’s no contest clause will not, ultimately, deprive Montello of the opportunity to advance her claim. Whether or not any appeal by the trustee is successful, Montello will retain the option in appropriate proceedings to advance and attempt to prove her claim on its merits. (§ 9354.)

Conclusion

For the reasons given, the Court of Appeal’s judgment is reversed. The matter is remanded for farther proceedings consistent with this opinion.

Lucas, C. J., Arabian, J., Baxter, J., and George, J., concurred.

1 This factual background statement follows that provided by the Court of Appeal in its unpublished opinion and is derived largely from respondent’s “Petition For Order Determining Whether Proposed Action Constitutes Will Or Revocable Trust Contest” and attached exhibits, copies of which are included in “Appellant’s Appendix in Lieu Of Clerk’s Transcript.” The probate court in its “Order That Proposed Action Does Not Constitute Will Or Revocable Trust Contest” found that “[a]ll facts set forth in the Petition are true and correct.” We presume the court’s order to be correct and indulge all intendments and presumptions to support it on matters as to which the record is silent. (Walling v. Kimball (1941) 17 Cal.2d 364, 373 [110 P.2d 58]; see also 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 268, pp. 276-277.) As the claim which is the subject of this dispute may be litigated collaterally (see Prob. Code, § 9354), we note this factual recitation is for the purposes of the present discussion only and is not intended on its own account to bind a fact finder in any subsequent or related proceeding.

2 Prior to its amendment in 1994 (Stats. 1994, ch. 40, § 3), section 21320 provided, in full:

“(a) If an instrument containing a no contest clause is or has become irrevocable, a beneficiary may apply to the court for a determination whether a particular motion, petition or other act by the beneficiary would be a contest within the terms of the no contest clause.

“(b) A no contest clause is not enforceable against a beneficiary to the extent an application under subdivision (a) by the beneficiary is limited to the procedure and purpose described in subdivision (a) and does not require a determination of the merits of the motion, petition, or other act by the beneficiary.

“(c) A determination of whether Section 21306 [contest on the grounds of forgery or revocation] or 21307 [contest of provision benefiting witness or drafter] would apply in a particular case may not be made under this section.”

In 1994, the Legislature inserted “including, but not limited to, creditor claims under Part 4 (commencing with section 9000) of Division 7 and Part 8 (commencing with section 19000) of Division 9,” after the second occurrence of “beneficiary” in section 21320, subdivision (a). The change does not affect our analysis. Unless otherwise indicated, further statutory references are to the Probate Code.

3 Under Code of Civil Procedure section 902, “Any party aggrieved may appeal . . . .” “One is considered ‘aggrieved’ whose rights or interests are injuriously affected by the judgment.” (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 737 [97 Cal.Rptr. 385, 488 P.2d 953].)

4 When granting review in this matter, we directed the parties to address only the issue of a trustee’s appeal rights following a section 21320 determination that a claim would not violate the trust’s no contest clause. In dissent, Justice Kennard accurately observes that, while Ferry was named both trustee of the Goulet trust and executor of Goulet’s estate, his duties as executor and as trustee are “distinct.” (See dis. opn. of Kennard, J„ post, at p. 1097, citing Estate of Beach (1975) 15 Cal.3d 623, 637 [125 Cal.Rptr. 570, 542 P.2d 994]; and Goad v. Montgomery (1898) 119 Cal. 552, 561 [51 P. 681].) As regards the issue before us, however, the difference between the trustee of an inter vivos trust and the personal representative of an estate is not so great as she implies. “An executor serves in a fiduciary capacity and his powers, duties and obligations are in many respects the same as those of a trustee.” (Estate of Smith (1931) 112 Cal.App. 680, 685 [297 P. 927]; see also Estate of McSweeny (1954) 123 Cal.App.2d 787, 798 [268 P.2d 107].) In fact, as relevant here, the fiduciary duties of a personal representative and a trustee are in essential respects the same. Most importantly, both types of fiduciary are charged with preserving the fund entrusted to them until it is distributed to the beneficiaries. (Compare Estate of Beach, supra, 15 Cal.3d at p. 639 [“A primary duty of the executor is to take reasonable steps to preserve the assets of the estate.”] with Christensen v. Superior Court (1987) 193 Cal.App.3d 139, 143 [239 Cal.Rptr. 143], quoting Conservator-ship of Pelton (1982) 132 Cal.App.3d 496, 501 [183 Cal.Rptr. 188] [A trustee has a “general duty to maximize the trust assets consistent with safety and other relevant considerations.”].) Moreover, both are charged with administering a fund in accordance with the intent of the maker of the instrument creating it. (See Union Bank & Trust Co. v. McColgan (1948) 84 Cal.App.2d 208, 213 [190 P.2d 42] [“It is, of course, the duty of the trustee to carry out the terms of the trust according to the expressed intent of the trustor.”].) Accordingly, as does the dissent for its purposes (dis. opn., post, at pp. 1087, 1090-1094), we rely upon cases discussing the duties of personal representatives, as well as cases discussing the duties of trustees, in concluding that Ferry, as trustee, should be permitted to appeal the section 21320 determination at issue.

5 Pursuant to provisions of the trust amendment, Burke receives “two-thirds of the remaining balance of the trust estate, which shall vest in and be distributable to him, free and clear of trust, subject,” among other things “to . . . bequests in favor of [Montello] and her children . ...” As a residuary beneficiary whose share is subject to Montello’s bequest, Burke is aggrieved by the probate court’s section 21320 determination, both because it eliminates any likelihood Montello would have abandoned her claim to the bequest payable to her out of Burke’s share in favor of pursuing her purported claim under the premarital agreement, and because it increases the possibility Montello will pursue a successful claim and thereby dimmish the residue. Under the trust instrument, Goulet’s first cousins receive one-third of the trust residue. As residuary beneficiaries, Goulet’s first cousins are similarly aggrieved, because the section 21320 determination increases the likelihood Montello will pursue a claim and thereby dimmish the residue.

6 In Estate of Murphy (1904) 145 Cal. 464, 465 [78 P. 960], three justices of this court (sitting as a department as was then constitutional) held an executrix of the estate at issue in that case had standing to appeal from a decree of partial distribution. The three justices, with little discussion, also stated their view that, as the additional question whether certain legatees had violated the will’s no contest clause “does not affect the executrix in her representative capacity,” she could not maintain an appeal on it. (145 Cal. at p. 467.) Murphy was decided many decades before enactment of the statutory scheme at issue in this case, which requires the trustee to administer the trust in accord with the trust instrument (§ 16000) and requires that the trustee (or another fiduciary) be notified of section 21320 applications (§§ 1220, 21322, subd. (a)(1)). As discussed hereafter, the statutory requirement of providing notice to the trustee or personal representative evidences the Legislature’s intent that these fiduciaries be involved in litigation of such applications. While the lapse of nearly a hundred years and the enactment of a new statutory regime since Murphy was decided would seem amply to justify our revisiting the standing issue, we nevertheless acknowledge our holding today abrogates the earlier language.

7 The dissent makes much of the age of the rule barring executors and administrators from appealing orders of final distribution. (See dis. opn., post, at pp. 1089-1092.) Of similar pedigree, however, is the recognition that “where [an order of distribution] affects the decedent’s estate as a whole, apart from the conflicting interests of . . . beneficiaries,” the executor or administrator may appeal from it to protect the estate. (Annot. (1967) 16 A.L.R.3d 1274, 1277 [collecting cases], fn. omitted.) We are satisfied that our balancing of these competing considerations in the section 21320 context adequately respects the principle of fiduciary impartiality while recognizing “the fiduciary duty of a trustee to defend the trust estate against attacks upon it that he deems unjust or unwarranted.” (Estate of Kessler, supra, 32 Cal.2d at p. 371.)

8 As respondent acknowledges, previous decisions have, on related policy grounds, embraced a rule permitting a fiduciary to appeal “ ‘a decree determining the relative rights of beneficiaries if some of them are unascertained or without representation . . . , or are not competent to act for themselves.’ ” (Smith v. Esslinger, supra, 26 Cal.App.4th at p. 583, citing Estate of Ferrall, supra, 33 Cal.2d 202, 205.)

9 Under the modem statutory scheme, when a section 21320 application respecting a trust is filed during the trustor's lifetime (or, if the trustor has died, following the conclusion of any proceeding for administration of his estate), the trustee is entitled to notice of the action. (§21322, subd. (b)(2).) When the trustor has died and a proceeding is pending for the administration of his or her estate, if the trustee (on behalf of the trust) requests special notice in the estate proceeding, he or she may be entitled to notice of any section 21320 application as a “person[] who ha[s] requested special notice in the estate proceeding pursuant to section 1250.” (§§ 1220, subd. (a)(2)(B); 1250; 21322, subd. (a)(1) (incorporating § 1220); § 56 (“ ‘Person’ means [a]. . . trust. . . .”).) (The trust at issue in this case, for example, would be entitled to special notice as a devisee under the will. (§ 1250, subd. (a).)) While the statutory scheme arguably leaves a “gap” in failing expressly to require notice to the trustee where a proceeding is pending for the administration of the trustor’s estate and the trust does not request special notice in the estate proceeding, in such instances the statutory scheme expressly requires notice to another fiduciary, the personal representative. (§§ 21322, subd. (a)(1); 1220, subd. (a)(2)(A).)