Basmajian v. Adelmann

Filed 10/17/07 Basmajian v. Adelmann CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from an order of the Superior Court of Los Angeles County,

Richard G. Kolostian, Sr., Judge. Reversed.

Loeb & Loeb and David C. Nelson for Respondent and Appellant.

Beltran, Beltran, Smith, Oppel & MacKenzie and Thomas E. Beltran for Petitioner and Respondent.

_________________________

I.

INTRODUCTION

Richard J. Basmajian (Basmajian) and Carla Adelmann (Adelmann) were the primary beneficiaries of their fathers estate. This is the third appeal arising from the distribution of the estate. In the first appeal (Case No. B146995, Basmajian I) we held that a referee had the authority to consider whether a $250,000 loan to Basmajian was forgiven and transmuted to a gift or whether it was an asset of the trust. We also held that Basmajian had adequate notice that the characterization issue would be addressed by the referee. In the second appeal (Case No. B156908, Basmajian II) we held that there was substantial evidence to support the trial courts finding that an amendment to the trust was the product of undue influence and thus, was null and void.

In the current appeal, we hold that the two prior appeals did not violate the trusts no contest clause.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Facts.

1. The initial facts.

Basmajian and Adelmann are the children of John Ohanias Basmajian (hereinafter decedent). Decedent had remained friends with his two former wives, Sara Kazarian, the mother of Basmajian and Adelmann, and Doris Basmajian.

Adelmann lived in Chatsworth, in a home bought by decedent in 1983. Although title was taken in decedents name, everyone understood that the house was to be Adelmanns. By 1997, decedent thought that the house, which was paid off, was worth either $200,000 or $250,000.

Basmajian was an attorney and had a real estate license. Decedent trusted Basmajian, whom decedent relied upon and believed to be competent.

2. The January 1985 trust.

On January 14, 1985, decedent executed a will. He also executed and funded a living trust, which became irrevocable at decedents death. Pursuant to the trust, Adelmann was to receive the Chatsworth home; Sara Kazarian and Doris Basmajian were each to receive $20,000; the residue (including an apartment building on Hesby Avenue where decedent lived) was to be divided equally between Basmajian and Adelmann; and Basmajian and Adelmann were to be co-trustees. The trustee was authorized to defend, at the expense of the trust estate, any contest or other attack on the nature of this Trust instrument or any of its provisions.

Decedent wanted Adelmann and Basmajian to split his property 50-50. Given that Adelmann was to receive the home where she resided, this would mean that after Adelmann received the home, the residue would be split equally between Adelmann and Basmajian.

The trust contained a no contest clause. Paragraph 7.8 read: In the event that any beneficiary under this instrument shall, singly or in conjunction with any other person or persons, contest, in any court, the validity of this Trust or of a deceased Trustors Last Will, or shall seek 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 seek otherwise to void, nullify, or set aside this Trust or any of its provisions, then the right of that person to take any interest given to him by this Trust shall be determined as it would have been determined had the person predeceased the execution of this Declaration of Trust, without surviving issue.

3. The 1992 Beeks amendment.

Gary Beeks (Beeks) was a law school friend of Basmajians. In approximately May 1992, Basmajian instructed Beeks to prepare a trust amendment, which was paid for by Basmajian. Basmajian presented the amendment to decedent, who refused to sign it. The Beeks amendment earmarked the Chatsworth house to Adelmann. It also provided that Adelmanns share of decedents property (including the Chatsworth home) would be held in trust for her, rather than distributed as an outright gift; Basmajian was to be the sole trustee; Basmajian was to receive additional trust assets equal to one-half of the equity in the Chatsworth house; and Basmajian had the discretion to obtain his share outright or leave it in trust.

4. The $250,000 loan.

In 1995, decedent loaned $250,000 to Basmajian to purchase a banquet hall. The loan was subsequently memorialized in a 1996 promissory note. Basmajian made one $12,500 interest payment on the loan.

5. The events between June 1997 and August 1997.

On June 15, 1997, Adelmanns husband (Joel) of approximately 20 years left her. Thereafter, decedents concerns about protecting Adelmann from Joel were satisfied when decedent reviewed proposed language in divorce papers that would assure Joel would receive nothing from decedents estate. Previously, decedent had expressed concerns about Adelmanns inability to handle money, and, in particular, her tithing to her church.

On June 17, 1997, decedent was diagnosed with lung cancer. Thereafter, he had chemotherapy and radiation treatments.

In August 1997, decedent was hospitalized. Decedent believed he was about to die. He wanted to see an attorney to make sure that his estate was in order and that Adelmann was protected. Decedent stated he wanted to dot the is and cross the ts.

On approximately August 8, 1997, Beeks took the 1992 Beeks amendment to decedent in the hospital; however, decedent did not sign it.

6. The Averbach amendment.

In August 1997, Basmajian provided persons from the Averbach law firm with a copy of the Beeks amendment so it could be touched up. The firm prepared a trust amendment at Basmajians direction and without any input from decedent. With regard to the assets to be distributed to Basmajian and Adelmann, the Averbach amendment provided the following: the Chatsworth home was to remain in trust for Adelmann; Basmajian was to receive an offset equal to 100 percent of the equity in the Chatsworth home; Basmajian and Adelmann were to split equally the remaining assets; Basmajian was to receive his share outright; and Adelmanns share was to remain in trust, with Basmajian as the sole trustee.

A secretary from the Averbach firm took the Averbach amendment and other estate documents to the hospital, however, decedent did not sign them.

After decedent was released from the hospital, Basmajian gave him the Averbach amendment. Decedent refused to sign it.

Between August and November 1997, decedent was hospitalized at least one more time.

7. Decedents last illness and the signing of a trust amendment.

On November 27, 1997, Thanksgiving Day, decedent was admitted into the hospital. He was in a significantly weakened physical condition as the result of a number of medical problems.

Basmajian took charge of decedents medical care.

On November 30, 1997 and December 1, 1997, decedent received a number of medications, including narcotics and a drug to improve his pulmonary function.

On December 1, 1997, Basmajian went to decedents hospital room taking with him a trust amendment and other documents, including powers of attorney. Decedent executed the trust amendment, which was then notarized. Basmajian put the amendment in his file, without telling anyone.

At the time decedent signed the trust amendment, decedent was not getting adequate blood supply to the brain, was struggling to breathe, his mental functioning was impaired, he was confused, unable to make rational decisions, and drugged. Decedents weakened physiological position and his mental condition made him susceptible to having others impose their will upon him.

On December 2, 1997, Basmajian contacted Griffin Financial Services (Griffin) where decedent had accounts. Without identifying himself as decedents son, Basmajian directed that some accounts be liquidated. Griffin mailed a check in the approximate sum of $70,000 to Basmajians home address.

8. The terms of the December 1, 1997, trust amendment.

The trust amendment signed by decedent on December 1, 1997, was typed by Basmajians secretary. It had been drafted by Basmajian, who had altered some of the terms of the Averbach amendment. The difference was that in the amendment signed by decedent, Adelmann was given an additional $50,000. According to Basmajian this gift was an offset because Adelmann was to receive the Chatsworth home, and the $250,000 note was to be forgiven. However, the amendment did not state that the note was to be forgiven.

The key provisions of the amendment signed by decedent provided the following: Adelmann was to receive her home and $50,000, which were to be held in trust for her; the residue was to be split equally between Adelmann and Basmajian; Basmajian was to receive his share outright; Adelmanns share was to be held in trust; and Basmajian was to be the sole trustee. The amendment did not alter the provision in the original trust document that had left $20,000 each to Sara Kazarian and Doris Basmajian.

9. Decedents death and events thereafter.

Decedent died on December 14, 1997. At the time, his assets were worth approximately $1.4 million, consisting primarily of the Chatsworth house, the Hesby apartment building (approximately $600,000-$750,000), mutual funds (approximately $130,000), an indemnity account (approximately $60,000-$100,000), another account ($42,000), a checking account, and the $250,000 note.

Basmajian forgave himself the $250,000 loan.

Basmajian took over the management of the Hesby apartment building, but did not make any payments to Adelmann from the proceeds of the building until May 1998. These payments stopped in June 1998, after Adelmann filed the initial petition with the probate court. The payments were reinstated approximately 11 months later, pursuant to court order.

B. The prior appeals.

1. Adelmanns 1998 petition.

On June 12, 1998, Adelmann filed a verified petition to declare void the December 1, 1997, trust amendment based upon undue influence. Adelmann contended Basmajian had coerced decedent into executing the amendment. Adelmann also sought to remove Basmajian as trustee, an outright distribution of trust assets, and an accounting. Adelmann alleged Basmajian had utilized trust property for his own benefit, failed to make proper distributions of trust assets, failed to maintain trust assets, and refused to provide a full and complete accounting.

Pursuant to court order, Basmajian filedan accounting.

In January 1999, Basmajian opposed Adelmanns petition and submitted a petition for settlement of account. Basmajian did not list the $250,000 loan as an asset of the estate.

On March 19, 1999, Basmajian filed a petition to confirm accounting. The accounting did not mention the $250,000 loan.

Adelmann objected to the accounting provided by Basmajian, which included Basmajians conclusion that the $250,000 note had been gifted to him and was not an asset of the estate. The trial court ordered Adelmanns objections be resolved by a referee.

At a May 18, 2000, hearing, the trial court discussed the fact that Basmajian had not provided the $250,000 promissory note to Adelmann. The trial court stated that a referee would deal with the issue of the accounting and it will account the issues related to the $250,000 note. The trial court referred the matter to a referee.

On May 21, 1999, Basmajian filed a petition for settlement of account and reimbursement of costs advanced. He did not reference the loan.

The petition for approval of first account and objections thereto was heard before the referee on June 16, 2000. At the beginning of the hearing, the referee stated that she was going to hear testimony concerning the accounting, and whether the $250,000 was a loan, and therefore an asset of the trust. . . . Basmajian stated that he did not believe that [the referee] had the authority to take evidence and rule on whether the $250,000 promissory note was an asset of the trust because to do so would exceed the scope of the trial courts reference order. The referee overruled Basmajians objection.

The referee found that The $250,000 promissory note, dated 4/1/96 . . . was not later made a gift to Richard Basmajian, but [was] an asset of the John Basmajian Trust . . . .

Basmajian objected to the referees findings. On October 27, 2000, the trial court overruled Basmajians objections.

2. The first appeal (Case No. B146995, Basmajian I).

Basmajian appealed from the October 27, 2000, order. In the first appeal, Case No. B146995 (Basmajian I), Basmajian did not challenge the sufficiency of the evidence to support the referees finding. Rather, Basmajian contended the referee lacked the authority to consider the characterization issue as to whether the $250,000 was a loan and thus, an asset of the estate. He also contended that he did not have adequate notice that the issue would be considered.

In an opinion filed by this division on July 26, 2002, we affirmed. In Basmajian I, we first held that the referee had the authority to consider the issue of whether the $250,000 was an asset of the trust. We also held that Basmajian had adequate notice that the categorization issue would be considered by the referee. Lastly, we denied Adelmanns request that we order Basmajian to pay costs and sanctions. Adelmanns sanction request had been partially based upon Adelmanns claim that statements made by Basmajian in a motion made to us had been false. Nonetheless, we directed Basmajian to pay costs on appeal personallybecause the appeal was taken to benefit him personally.

3. The trial on the remaining issues.

Trial on the remaining issues in Adelmanns petition to invalidate the amendment was held on nonconsecutive days between January 19, 2001, and June 25, 2001.

The trial court issued a statement of decision. The trial court found that the December 1, 1997[,] amendment to the John Basmajian Trust is the product of undue influence perpetrated on the decedent by . . . Richard Basmajian, and is therefore null and void.

4. The second appeal (Case No. B156908, Basmajian II).

Basmajian appealed the trial courts undue influence ruling. On February 28, 2002, the day after he filed his notice of appeal in Case No. B156908 (Basmajian II), Basmajian was removed as trustee and an independent successor trustee was appointed.

In an opinion filed on June 5, 2003, this court held that there was substantial evidence to support the trial courts finding of undue influence.

C. The present appeal.

On June 2, 2004, Adelmann filed an application for a determination that Basmajians two prior appeals constituted contests to decedents trust. Adelmann argued that the two prior appeals constituted a contest and thus, Basmajian should be disinherited pursuant to paragraph 7.8 of the trust. Adelmann argued that in both prior appeals, Basmajian sought, respectively, to nullify, void, or set aside the equal distribution provision of the Trust, and to enforce an amendment obtained by undue influence which nullified, voided, or set-aside other significant provisions of the Trust (including appointment of successor co-trustees upon [decedents] death) . . . .^[1]

The trial court held a number of hearings on the petition.

On August 11, 2005, the trial court entered a minute order explaining its ruling that each of the prior appeals violated the no contest clause contained in paragraph 7.8.

A final order was entered on January 12, 2006. Basmajian appealed.^[2]

III.

DISCUSSION

We hold that Basmajians two prior appeals (Basmajian I and Basmajian II) did not violate the no contest clause in paragraph 7.8 of decedents trust. Thus, we reverse.

A. No contest clauses.

An in terrorem or no contest clause in a will or trust instrument creates a condition upon gifts and dispositions provided therein. [Citation.] In essence, a no contest clause conditions a beneficiarys right to take the share provided to that beneficiary under such an instrument upon the beneficiarys agreement to acquiesce to the terms of the instrument. [Citation.]

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. [Citations.] Because a no contest clause results in a forfeiture, however, a court is required to strictly construe it and may not extend it beyond what was plainly the testators intent. [Citations; fn. omitted.]

Whether there has been a contest within the meaning of a particular no-contest clause depends upon the circumstances of the particular case and the language used. [Citations.] [T]he answer cannot be sought in a vacuum, but must be gleaned from a consideration of the purposes that the [testator] sought to attain by the provisions of [his] will. [Citation.] Therefore, even though a no contest clause is strictly construed to avoid forfeiture, it is the testators intentions that control, and a court must not rewrite the [testators] will in such a way as to immunize legal proceedings plainly intended to frustrate [the testators] unequivocally expressed intent from the reach of the no-contest clause. [Citation.] (Burchv. George (1994) 7 Cal.4th 246, 254-255, fn. omitted; Prob. Code, 21303 [codifying principle that no contest clauses are generally enforceable against a beneficiary bringing a contest within terms of the clause];^[3]Prob. Code, 21304 [codifying principle that no contest clause shall be strictly construed]; see also, Estate of Gonzalez (2002) 102 Cal.App.4th 1296, 1302-1303.)

Probate Code section 21300, subdivision (a) defines a contest as any action identified in a no contest clause as a violation of the clause. The term includes both direct and indirect contests. Direct contests, as specified in section 21300, subdivision (b), are instruments or pleadings in a proceeding in any court alleging the invalidity of an instrument or one or more of its terms based on a number of grounds, including, undue influence. An indirect contest, as defined in section 21300, subdivision (c), means a pleading in a proceeding in any court that indirectly challenges the validity of an instrument or one or more of its terms based on any other ground not contained in [Section 21300,] subdivision (b), and that does not contain any of those grounds. Pursuant to subdivision (d) of section 21300,  No contest clause means a provision in an otherwise valid instrument that, if enforced, would penalize a beneficiary if the beneficiary files a contest with the court.^[4]

The statutes are not meant to be exhaustive. Rather, Probate Code section 21301 provides, This part is not intended as a complete codification of the law governing enforcement of a no contest clause. The common law governs enforcement of a no contest clause to the extent this part does not apply. However, if a clause conflicts with the statutes, the statutes control. (Prob. Code, 21302 [this part applies notwithstanding a contrary provision in the instrument.]; Ross & Moore, Cal. Practice Guide: Probate (The Rutter Group 2006)  15.82.1, p. 15-24.6.)

B. Basmajians action in litigating the two prior appeals did not violate the no contest clause.

The California Probate Code applies the same general rules of interpretation to a will, trust, deed and any other instrument. ([Prob. Code,] 21101.) (Burkett v. Capovilla (2003) 112 Cal.App.4th 1444, 1448; Prob. Code, 45, 21120-21122.) Whether there has been a contest within the meaning of a particular no contest clause depends upon the circumstances of the particular case and the language used. (Hearst v. Ganzi (2006) 145 Cal.App.4th 1195, 1207.) We must strictly construe a no contest clause to avoid forfeiture, but we may not re-write it. (Burch v. George, supra, 7 Cal.4th at pp. 254-255.)

We examine the issue before us de novo, in that there are no contested facts relevant to the issues we must decide that required factual findings. (McKenzie v. Vanderpoel (2007) 151 Cal.App.4th 1442, 1450; McIndoe v. Olivos (2005)
132 Cal.App.4th 483, 487.

The no contest provision in decedents trust was contained in paragraph 7.8. Pursuant to this provision, the following acts by a beneficiary would result in the beneficiary being disinherited: [1] contest, in any court, the validity of this Trust or of a deceased Trustors Last Will, or [2] shall seek 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 [3] seek otherwise to void, nullify, or set aside this Trust or any of its provisions . . . .

Adelmanns disinheritance petition argued only that the two prior appeals, Basmajian I and Basmajian II, constituted contests. Contrary to the trial courts conclusion, we hold that they did not.

Basmajian I and Basmajian II did not fall within a strict construction of paragraph 7.8 of decedents trust. In these two prior appeals, Basmajian did not contest the validity of a provision of the trust, seek a determination that the trust or any of its provisions were void, or seek to nullify or set aside the trust.

On appeal in Basmajian I, Basmajian contended the referee had exceeded her authority to address the characterization of the $250,000 as a loan or an asset of the estate. He also contended he did not have adequate notice that the referee would be addressing the characterization issue. These procedural issues cannot be considered a contest. They were not attacking the trusts provisions.

In Basmajian II, Basmajian opposed Adelmanns assertion of undue influence by arguing that the amendment was valid. He defended against charges of undue influence. His actions in processing the appeal were defensive. Had Basmajian been successful in his appeal, the amendment would not have been stricken and the provisions in the trust would have been modified. Such a result would not have invalidated, voided, nullified, or set aside any of the trust provisions. Paragraph 7.8 was not broadly drafted to include actions to modify the trust.

Further, Basmajian I and Basmajian II were continuations of the lower courts proceedings, they were not separate proceedings. These two prior appeals cannot be dissected from the lower court proceedings upon which the appeals were based. (Coleman v. Gulf Ins. Group (1986) 41 Cal.3d 782, 794 [holding there can be no malicious prosecution from an appeal because an appeal is not a separate proceeding and has no independent existence . . . it is merely the continuation of an action];^[5]cf. Nathanson v. Hecker (2002) 99 Cal.App.4th 1158, 1163, fn. 1 [discussing final judgment for purposes of res judicata].)^[6] In and of themselves, Basmajian I and Basmajian II cannot be considered contests.

In Poag v. Winston (1987) 195 Cal.App.3d 1161, at pages 1182 to 1183, the court addressed the argument that an appeal from a proceeding in which respondent had sought an interest in a residence was a contest. Poag stated, in part, that previously the court had held the appeal was untimely and respondents asserted interest in any event fell outside the scope of Probate Code section 851.5. However, . . . the petition itself does not violate the no contest clause; hence, an appeal seeking to challenge the courts denial of the petition cannot be viewed as violative of the clause.

Here, even were we to look to the underlying actions in the trial court, neither Basmajian I nor Basmajian II would be considered contests.

With regard to Basmajian I, Basmajian had presented accountings to the trial court, fulfilling his obligation as a trustee. Complying with his mandatory obligations cannot be considered a contest.^[7] Adelmann has provided no authority for, nor does she argue that, under prior law, Basmajian as trustee would be contesting a trust by fulfilling his fiduciary obligation to submit an accounting. The fact that had Basmajian been successful in his position the estate would have been reduced, does not necessarily render the appeal a contest. (Cf. Estate of Coplan (2004) 123 Cal.App.4th 1384, 1389 [fact that amount for distribution would have been reduced had petition been granted does not necessarily make action a contest]; Estate of Strader (2003) 107 Cal.App.4th 996, 1004 [many claims resulting in variation in distribution amounts are not contests].)

With regard to Basmajian II, the trial court proceedings dealt with Adelmanns charges of undue influence. In the trial court, Basmajian defended those allegations, he did not raise them.

Subdivision (f) of Probate Code section 21305 defines the term pleading in subdivision (b) [to include] a petition, complaint, response, objection, or other document filed with the court that expresses a position of a party to the proceedings. (Italics added.) Adelmann contends this definition of pleading should be used to further define an indirect contest as delineated in Probate Code section 21300. As noted previously, section 21300, subdivision (c) states: an [i]ndirect contest means a pleading in a proceeding in any court that indirectly challenges the validity of an instrument or one or more of its terms based on any other ground not contained in subdivision (b), and that does not contain any of those grounds. (Italics added.) Thus, according to Adelmann, when Basmajian filed his two prior appeals he expressed his positions consistent with the positions he had taken in the underlying trial court proceedings and thus, the two prior appeals were contests. However, by its terms, subdivision (f) of Probate Code section 21305 only applies to the term pleading in subdivision (b). And, Probate Code section 21305, subdivision (b) specifies a number of pleadings that do not constitute a contest. Further, subdivision (b) of section 21305 cannot be applicable to the decedents trust in that the trust was executed in 1985 and decedent died in 1997. (Prob. Code 21305, subd. (d).)

Thus, Basmajians actions in filing the two prior appeals (Basmajian I and Basmajian II) did not violate the no contest provision in decedents trust.

In light of our holding, we need not address a number of other issues raised by the parties.

DISPOSITION

The order is reversed. The parties are to bear their own costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P. J.

CROSKEY, J.

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^[1] Prior to filing the application, Adelmann sought a determination from the trial court that the application would not trigger the no contest provision in paragraph 7.8. On February 9, 2004, the trial court entered an order ruling that Adelmanns proposed action would not constitute a contest.

^[2] This is an appealable order. (Code Civ. Proc.,  904.1, subd. (a)(10); Prob. Code,  1304, subd. (d) & 17200.)

^[3]Burch v. George, supra, 7 Cal.4th 246, was abrogated by statute on other points, as recognized in Tunstall v. Wells (2006) 144 Cal.App.4th 554, 560; Estate of Rossi (2006) 138 Cal.App.4th 1325, 1331.

^[4] Pursuant to subdivision (b) of Probate Code section 21300, the following are direct contests: (1) Revocation. [] (2) Lack of capacity. [] (3) Fraud. [] (4) Misrepresentation. [] (5) Menace. [] (6) Duress. [] (7) Undue influence. [] (8) Mistake. [] (9) Lack of due execution. [] (10) Forgery.

Unless specifically identified, the current statutory scheme applies (Prob. Code,  3) even though some of these statutes were enacted after decedents trust was executed in 1985, and some of the statutes were amended in 2000 and 2002, after decedents death in 1997. (Stats. 1990, ch. 79 (Assem. Bill No. 759), 14, operative July 1, 1991; Stats. 1995, ch. 730 (Assem. Bill No. 1466),  11; Stats. 2000, ch. 17 (Assem. Bill No. 1491),  5, 6; Stats. 2002, ch. 150 (Sen. Bill No. 1878),  1, 2.) Adelmann cites Estate of Lewy (1974) 39 Cal.App.3d 729 (Lewy)for the proposition that statutory authority applies only to allegations that the instrument, or one [or] more of its provisions is invalid. [Prob. Code,]  21300, subds. (b) & (c). This assertion misconstrues Lewy. In Lewy, a party presented a pleading entitled  Contest of Will Before Probate and Objection to Appointment of Executrix  in which it was alleged that (1) the will submitted into probate included pages that had been tampered with and (2) the person who had filed the petition to probate the will was incompetent. (Id. at p. 732.) Lewy held that the actions, and not the title of the pleading, controlled. Lewy also held that neither attacks were contests.

^[5]Coleman v. Gulf Ins. Group, supra, 41 Cal.3d 782 was factually distinguished in Zamos v. Stroud (2004) 32 Cal.4th 958, 968-969.

^[6] In its ruling, the trial court identified the issue before it as to whether Basmajian I and Basmajian II constituted contests. The trial court did not examine the trial court proceedings underlying those two appeals. It then went on to state, If there had been no appeals from the two decisions by the trial judge, . . . this court would have ruled that Basmajians actions resulting in the two trials . . . would have violated the trusts no-contest clause. We cannot, as Adelmann urges, interpret these statements to be findings of the trial court.

^[7] Current Probate Code section 21305, subdivision (b)(8), states accountings and reports of fiduciaries are not contests. This section is only applicable to instruments of decedents dying on or after January 1, 2001, and that become irrevocable on or after that date.