Shaylin v. Rose

225 Cal. App. 4th 771, 170 Cal. Rptr. 3d 569
CourtCalifornia Court of Appeal
DecidedApril 21, 2014
DocketNo. B250306
StatusPublished
Cited by19 cases

This text of 225 Cal. App. 4th 771 (Shaylin v. Rose) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shaylin v. Rose, 225 Cal. App. 4th 771, 170 Cal. Rptr. 3d 569 (Cal. Ct. App. 2014).

Opinion

[773]*773Opinion

TURNER, P. J.

I. INTRODUCTION

The objectors, Jay Rose and Fred Maidenberg, appeal from two May 2013 probate court orders. The objectors appeal from an order appointing co-executors Terry D. Shaylin, Dolores Diehl, and Dr. Maria Gracita DaCosta-Iyer. They were appointed to act as executors of the estate of the decedent, Sonia, also known as Sonya, Sobol. In addition, the objectors appeal from an order denying Mr. Rose’s competing petition with prejudice. Mr. Rose’s competing petition sought to have him named as executor. The probate court sustained the co-executors’ demurrers without leave to amend because the objectors lacked standing. The objectors argue the probate court has inherent and statutory authority to give them standing pursuant to Probate Code1 section 48. The objectors contend they have standing to challenge the codicil, which replaced Mr. Rose as executor with the co-executors; the codicil was procured by Ms. Shaylin through elder abuse of Ms. Sobol; and Ms. Sobol was an elderly and enfeebled woman who lacked testamentary capacity when the codicil was executed. We conclude the objectors lack standing to contest the codicil. We affirm the order denying Mr. Rose’s competing petition in which he sought to be named as executor. Thus, we affirm the orders under review.

II. BACKGROUND

A. Will And Trust

Ms. Sobol’s pour-over will is dated December 23, 2010. The will provides that all of Ms. Sobol’s property owned at the time of her death will be held by the Sonya Sobol Trust dated December 23, 2010. Ms. Sobol’s property was to be distributed in accordance with the provisions of the Sonya Sobol Trust. The will disinherited Ms. Sobol’s nephew—Mr. Maidenberg—his mother, and his siblings. The will designated Mr. Rose as executor. Avi S. Peretz was designated successor executor.

The Sonya Sobol Trust is a revocable living trust, which became irrevocable upon Ms. Sobol’s death. Ms. Sobol was both the primary trustee and beneficiary. Mr. Rose was designated successor trustee. Ms. Peretz was designated alternative successor tmstee. The declaration of trust allowed Ms. Sobol the power to amend the trust during her lifetime.

[774]*774The trust was to distribute its assets upon Ms. Sobol’s death. Ms. Sobol gave $250,000 as a gift to Rema Gralnick. In addition, Ms. Sobol gave her apartment located in Israel to Jacob Sobol. The remainder of the trust assets was to be given to the trustee for the establishment of a charitable foundation in the name of Ms. Sobol’s deceased son, Dr. Efim Sobol. The Efim Sobol Foundation would support medical research and education and the building and development of a hospital in Ashdod, Israel. Mr. Maidenberg, his mother, and his siblings received nothing under the trust.

B. Will and Trust Amendments

On August 30, 2012, Ms. Sobol signed an amendment to the trust declaration. The amendment changed the successor trustee from Mr. Rose to three successor cotrustees—Ms. Diehl, Ms. Shaylin and Dr. DaCosta-Iyer. The amendment made no other changes to the trust declaration.

On September 27, 2012, Ms. Sobol signed a codicil to her will. The codicil revoked the designation of Mr. Rose and Ms. Peretz as executors. The codicil appointed Ms. Diehl, Ms. Shaylin, and Dr. DaCosta-Iyer as co-executors of the will. No other changes were made to the will.

Ms. Sobol died on December 15, 2012, at the age of 89. The estimated value of her estate was $22 million. Ms. Sobol was a widow with no living children. Her only child, Dr. Sobol, died in February 28, 2007, leaving his trust estate to his parents. Ms. Sobol’s husband died on January 6, 2008.

C. Petition for Probate of Will and Letters Testamentary

On December 21, 2012, the co-executors filed a petition in probate court. They sought to admit Ms. Sobol’s will and codicil to probate and their appointment as co-executors of her estate. The petition was served on the objectors and the Attorney General. Ms. Sobol’s trust is in material part a charitable trust. The Attorney General has the primary responsibility for supervising charitable trusts. (Gov. Code, § 12598, subd. (a); Hagman v. Meher Mount Corp. (2013) 215 Cal.App.4th 82, 89 [155 Cal.Rptr.3d 192].) No change to the trust provisions can be effectuated unless the Attorney General is a party to the litigation. (Gov. Code, § 12591; see Estate of Ventura (1963) 217 Cal.App.2d 50, 57 [31 Cal.Rptr. 490].) When a charitable portion of a revocable trust becomes irrevocable, as occurred here upon Ms. Sobol’s death, the Attorney General must be notified. (§ 16061.7, subds. (a)(1), (b)(3); Ross & Cohen, Cal. Practice Guide: Probate (The Rutter Group 2013) f 2:115.7, p. 2-76.4 (rev. # 1, 2013).)

The three co-executors submitted declarations in support of the petition. In addition, two declarations were submitted by the two witnesses to the [775]*775execution of the codicil. Ms. Shaylin filed a declaration. Between May 2011 and August 2012, Ms. Shaylin represented Ms. Sobol’s affiliated entity, Summer View Sherman Oaks, LLC, in civil litigation and a subsequent chapter 11 bankruptcy reorganization. In addition, Ms. Shaylin was general bankruptcy counsel for Ms. Sobol commencing April 19, 2012, the date of her chapter 11 filing. Ms. Shaylin continued in that capacity until Ms. Sobol’s death. On January 10, 2013, the United States Bankruptcy Court granted Ms. Shaylin’s law firm’s application to withdraw as general bankruptcy counsel for Ms. Sobol.

In August 2012, Ms. Sobol and Ms. Shaylin had a conversation concerning changes in the trust. According to Ms. Shaylin, the following occurred, “In August 2012, Ms. Sobol asked me whether I would agree to be a co-trustee of her living trust together with two other co-trustees, [Dr.] DaCosta-Iyer, her friend and colleague of her deceased son and [Ms.] Diehl, another long term friend and business associate.” In compliance with Ms. Sobol’s instructions, Ms. Shaylin amended the trust by removing Mr. Rose and Ms. Peretz as successor trustees. The new successor trustees were Ms. Shaylin, Dr. DaCosta-Iyer and Ms. Diehl. Ms. Sobol signed and notarized the amendment to the trust on August 30, 2012.

In September 2012, Ms. Sobol spoke with Ms. Shaylin about changing the will’s executors. Ms. Shaylin’s declaration states: “Ms. Sobol told me that her intention was that the three successor co-trustees of the . . . [t]rust . . . also serve as co-executors of her will. Ms. Sobol told me that when she executed the amendment to the trust changing successor co-trustees to [Ms.] Diehl, [myself] and[ Dr.] DaCosta-Iyer she intended to change the co-executors of her will as well, but did not realize at that time she needed to amend her will in writing as well.”

Ms. Shaylin then prepared a codicil to the will, which Ms. Sobol signed on September 27, 2012. The codicil removed Mr. Rose and Ms. Peretz and appointed Ms. Shaylin, Ms. Diehl and Dr. DaCosta-Iyer as the co-executors. Ms. Sobol executed the codicil before her and two other witnesses. The two other witnesses were Thomas Gallagher, a notary public, and Norma Cobillo, Ms. Sobol’s caregiver. Both Mr. Gallagher and Ms. Cobillo signed declarations stating they saw Ms. Sobol sign the codicil. Before Ms. Sobol signed the codicil, Mr. Gallagher read the amendment to the will to her. Ms. Sobol told Mr.

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Bluebook (online)
225 Cal. App. 4th 771, 170 Cal. Rptr. 3d 569, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shaylin-v-rose-calctapp-2014.