ANDREW J. v. TOINETTE
Filed 4/27/06
CERTIFIED FOR PUBLICATION
COPY
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
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| Estate of ANDREW J. ROSSI, SR., Deceased. | |
| ANDREW J. ROSSI, JR., Petitioner and Respondent, v. TOINETTE ROSSI, Objector and Appellant. |
C049330
(Super. Ct. No. PR75314)
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APPEAL from a judgment of the Superior Court of San Joaquin County, F. Clark Sueyres, J. Affirmed.
John A. Hartog for Objector and Appellant.
Horton & Roberts and Neil F. Horton; Rosenberg Law Firm and Richard D. Rosenberg for Petitioner and Respondent.
Andrew J. Rossi, Jr. (John), filed an application pursuant to Probate Code section 21320[1] to determine whether the probate petitions he planned to file would violate the no contest clauses in the will and declaration of trust (trust) executed by his father, the decedent Andrew J. Rossi, Sr. (Andrew), in November 2003. Relying on section 21305, subdivision (a), the trial court ruled the proposed petitions would not constitute contests and granted John's application.
Toinette Rossi, (Toinette) John's sister and trustee of Andrew's trust, appeals the trial court order. She argues: (1) the court lacked subject matter jurisdiction because John's section 21320 application was defective as a matter of law; and (2) even if John's application was properly before the trial court, section 21305, subdivision (a)(3) did not apply to the proposed petition to invalidate the second amendment to the trust (second amendment).[2] We reject Toinette's claims of error and affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
On November 21, 2003, Andrew executed a pour-over will and revocable trust which made specific gifts to his wife Kathryn and left the balance of the estate in equal shares to John, Toinette and Valerie Rossi, his children from a previous marriage. Attached to the trust was a schedule of assets which included â€
