In the Matter of the Trust of Lucina Rodriguez
Published: Jun. 17, 2000 | Result Date: Feb. 2, 2000 | Filing Date: Jan. 1, 1900 |Case number: BP053338 Verdict – $400,000
Judge
Court
L.A. Superior Central
Attorneys
Plaintiff
Robert S. Scuderi
(Law Office of Robert S. Scuderi)
Defendant
Facts
In April, 1996, Lucina Rodriguez, a solely Spanish speaking woman, decided to place all of her assets in a
revocable trust. She contacted an attorney, who sent a non-attorney associate to interview Rodriguez.
At the interview, Rodriguez named six persons to be beneficiaries in the revocable trust and associated pour-
over will. At that time, she specifically stated that she wished to exclude Victor Paniagua from the beneficiary
list.
At that meeting she also named Jose Paniagua Montoya, her relative, as executor and trustee, in addition to his
being a beneficiary. Several days prior to the execution of the trust and pour-over will, Rodriguez went to her
bank with Montoya. The bank transferred all of her money into a joint account with both Rodriguez and
Montoya as joint tenants.
One week later, the trust and pour-over will were executed. There were two witnesses to the pour-over will,
one of whom witnessed Rodriguez mark the will. Rodriguez had to use a mark due to disability. There was
also one witness to RodriguezÆs marking the trust.
At the time of her death, RodriguezÆs assets were a residence held in the trustÆs name and several bank
accounts held in joint tenancy with Montoya. The trust and will both contained "no contest" clauses. After the
death of Rodriguez, Montoya arranged to sell the house, and placed the proceeds of the sale into the trust
account. However, he stated that the joint account was his alone.
On Nov. 17, 1997, Montoya petitioned the court to probate the pour-over will and Paniagua objected. The
probate court denied probate under the ruling of Estate of McCabe, 224 Cal.App. 3rd 334, which required two
witnesses, plus a third witness to witness a mark.
On Nov. 12, 1998, Paniagua petitioned the court to probate an earlier 1990 will, under which Victor was not
only a beneficiary, but also the executor. The 1990 will had 10 beneficiaries. The probate court granted the
petition.
Graciela Mendrano, a beneficiary under the will, petitioned the court seeking an order establishing the validity
of the trust and an accounting of the trust assets. Both Victor and Paniagua objected.
Paniagua alleged that the trust was invalid because the mark of Rodriguez did not comply with Estate of
McCabe, and as such the transfer of the proceeds from the sale of the residence into the trust was invalid. On
the day initially set for trial, Mendrano unsuccessfully petitioned the court to find that an oral trust had been
established and to amend her petition to include the joint bank accounts. Mendrano than sought a writ of
mandate from the State Court of Appeal.
The writ was granted and the petition was amended to include an allegation that the bank accounts were the
subject of an oral trust. The trust mark was found valid by the probate court, which it held that a written trust,
unlike a will, did not need any witnesses and all that was necessary was a single witness to RodriguezÆs mark.
The probate court further found that the grant deed transferring the residence to the trust was valid and that the
proceeds of the sale of the property became part of the trust assets.
Other Information
The case is on appeal. Mendrano has filed a motion to exercise the "no contest" clause against Montoya.
For reprint rights or to order a copy of your photo:
Email
jeremy@reprintpros.com
for prices.
Direct dial: 949-702-5390