Estate of Schenkhuizen

Filed 1/19/07  Estate of Schenkhuizen CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Introduction

            Ronald Schenkhuizen appeals from a judgment of the Alameda County Superior Court granting in part and denying in part his petition pursuant to Probate Code section 850 to recover property, for imposition of a constructive trust, for double damages and for financial elder abuse against respondents Winniefred Smit and Michael Smit.  Ronald and Winniefred are the children of decedents Eveline and Max Schenkhuizen.  Michael Smit (sometimes referred to as Michael Smith) is Winniefred's son.  At the time this petition was filed, Winniefred and Michael each held sole record title to one of two separate parcels of property (the Omar Street property and the Santa Rosa Way property) pursuant to separate joint tenancy deeds executed by Eveline.  The trial court held Eveline and Max had been competent to execute the various documents and transfers, that the transfer of the Santa Rosa Way property was not the product of undue influence by Winniefred, and that each deed was validly executed and each was validly delivered.

            Ronald contends on this appeal that there is no substantial evidence to support the court's findings that the two deeds were validly delivered.  He further contends that the trial court erred in failing to make any finding in its statement of decision that the transfer of the Omar Street property was intended or understood to be irrevocable.

            We shall affirm the judgment.

Facts and Procedural Background

            On March  7, 1991, Max and Eveline executed an intervivos trust, pour over wills, and a community property agreement.  On the same day, they executed deeds transferring the property located at 4945 Omar Street in Fremont, California, and 3264 Santa Rosa Way in Union City, California, from themselves as joint tenants to themselves as cotrustees.  Under the trust terms, after the death of the surviving trustor, the trust estate was to be distributed equally to Ronald and Winniefred.  During his lifetime, Max had invested in second deeds of trust.  He and Eveline were Dutch from Indonesia, and Max made the financial decisions.  Max consulted with Eveline and she almost always agreed with his decisions.

            In December  1999, Max knew he was dying of terminal cancer.  After suffering a series of small strokes, Eveline spoke mainly in her first language, Dutch.  She did not drive and had never handled the finances.  Max told Ronald he would like to have Winniefred take care of the finances, so that Eveline would not have to worry about it.  Winniefred and Michael testified that Max outlined his plan for disposition of his real property to them.  The plan was that Winniefred would have one of the houses and that Ronald would have the other.

Omar Street property

            Max told Winniefred he planned to take Omar Street out of the living trust by conveying it to himself and Eveline as joint tenants and that after his death, Eveline would deed it to herself and Winniefred as joint tenants.  Winniefred replied that she already had a house and asked Max to deed the Omar Street property to her son, Michael, who had been living in the Omar Street property, paying rent and fixing it up since 1992.  Max agreed.  Eveline was present during this conversation and also agreed.  Max also talked to Michael in February  2000 about the plan to give him the Omar Street property and told Michael about the two-step process to put him on the deed as a joint tenant with Eveline.  Michael testified that Max told Michael that during Eveline's life, Omar Street â€