1
Filed 5/2/17 Whelan v. Sanford CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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
FIRST APPELLATE DISTRICT
DIVISION FIVE
MICHAEL WHELAN, Individually and as
Trustee, etc.,
Plaintiff and Appellant,
v.
KAREN SANFORD et al.,
Defendants and Respondents.
A146853
(San Mateo County
Super. Ct. No. PRO124191)
Michael Whelan was both a named beneficiary and the successor trustee of his
deceased parents’ trust.
1 Purporting to act in his capacity as trustee, Michael petitioned
the probate court for approval of a proposed sale of real property held by the trust, as well
as payment to himself of a $130,000 broker’s commission, as the licensed real estate
broker for that sale. Michael’s sisters, Karen Sanford, Betty Jo Paroli, and Susan Killian
(respondents), successfully opposed Michael’s petition with respect to the commission,
and then filed their own petition asserting Michael had triggered the trust’s no contest
clause. The probate court granted respondents’ petition, concluding the no contest clause
was triggered by Michael’s demand for the commission payment under an alleged oral
agreement with his father. Michael appeals, contending his petition was not a contest
because it was not filed in his capacity as beneficiary, no “pleading” gave rise to a
contest, and he did not seek payment on a creditor’s claim—he was merely seeking

1 We use first names as necessary for clarity and ease of reference when referring
to individual members of the Whelan family.
2
increased trustee compensation. He also contends the no contest clause does not apply
because his was only a “routine” creditor’s claim. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 1996, Betty Jean and Joseph Whelan, a married couple, created the Whelan
1996 Revocable Trust (Trust). The Trust was amended and restated on March 11, 2009.
The Trust named Michael to act as successor trustee after the settlors’ deaths and
provided for payment of debts, administrative expenses, and taxes and, after allocating
and dividing the residual into five equal shares, distribution of the shares to Betty Jean
and Joseph’s five children—Michael, John Whelan, Betty Jo, Karen, and Susan.
As trustee, Michael had the power to sell Trust property and “to incur and pay the
ordinary and necessary expenses of administration, including . . . reasonable attorney’s
fees, reasonable Trustee’s fees, reasonable accountant’s fees, reasonable investment
counsel fees and the like.” The trustee was also empowered to “delegate investment and
management functions as prudent under the circumstances.” Pursuant to section 7.05 of
the Trust, the trustee was entitled to receive “reasonable compensation,” capped at “no
more than the lesser of one-half of one percent (0.5%) of the average net value of the
principal of the Trust Estate or [$20,000]” per year.
The Trust contained the following no contest clause: “9.04. Non-Contest
Clause. If any Beneficiary of this Declaration of Trust or any of our legal heirs or person
claiming under a Beneficiary or heir seeks to obtain an adjudication, or contests, or
attacks this Declaration of Trust, any of its provisions or any amendments thereto, or in
any manner, directly or indirectly, attempts to have it or any of the Trusts or beneficial
interests created by it declared invalid, we specifically disinherit such person or persons,
and such person or persons shall receive no benefits from or interests under this
Declaration of Trust, and the Trusts herein established shall be administered and
distributed as if such person or persons had died before either of us, provided, however,
that nothing in this Paragraph shall apply to us or the Surviving Settlor. The Trustee is
hereby authorized to defend, at the expense of the Trust Estate, any action or matter that
would interfere with the disposition of assets of the Trust Estate pursuant to the Settlors’
3
estate plan as provided in this Trust Instrument and any other documents created by the
Settlors that are testamentary in nature.
“a. Claims Asserted. For purposes of this paragraph, the words ‘contest,’
‘attack,’ or ‘seek to obtain an adjudication’ shall include, without limitation, any claims
asserted against any trust hereunder, a Settlor’s Will, a Settlor’s estate, assets passing
pursuant to a beneficiary designation, or any other assets encompassed by the Settlor’s
estate plan based on: (i) a ‘quantum meruit’ theory (including a creditor’s claim based
upon such theory); (ii) a constructive trust theory; (iii) any alleged oral agreement (or an
alleged written agreement that is to be proved by parol evidence) claiming that the Settlor
agreed to give or bequeath anything to such person, whether or not such alleged
agreement is also alleged to be made in consideration for the provision of personal or
other services to a Settlor; or (iv) any action to characterize property scheduled in the
name of the Trustee or designated in the name of the Trustee, in this trust instrument or
by any subsequent designation, as belonging in whole or in part to such claimant under
any other theory, including, but not limited to community property, joint tenancy or
payable on death designation. For purposes of this Paragraph, the term ‘contestant’ shall
include any person encompassed by the above-described forms of legal actions or claims.
A routine creditor’s claim (such as for funeral costs or a written promissory note) shall
not be considered a contest.” (Italics added.)
Betty Jean died in January 2010, and Joseph died in November 2013. The Trust’s
most valuable asset was real property located in the Portola Valley Ranch Development
(Property), which Joseph and Michael developed.
2 Because the beneficiaries did not
wish to hold title to the Property as tenants in common, Michael, acting as successor
trustee, decided to sell it.
Michael believed his company, Portola Realtors, was best suited to sell the
Property on behalf of the Trust. On November 21, 2013, Michael, acting as trustee,
signed a listing agreement awarding himself, as principal of Portola Realtors, the

2 Before his death, Joseph sold the family business, Portola Realtors, to Michael.
4
exclusive right to market the Property for one year. The listing agreement provided a
commission, equaling up to four and a half percent of the total sales price, would be paid
to Portola Realtors if the Property was sold during the term of the listing agreement. It
did not initially require Michael to make any marketing efforts, such as listing the
Property on the Multiple Listing Services. Around the same time that Michael executed
the listing agreement, John expressed interest in buying the Property.
On January 4, 2014, John wrote each of his sisters, expressing his desire to
purchase the Property for $2,880,000 and requesting their “Consent & Waiver.” Also
included was a copy of a letter from the Trust’s attorney, William Garrett, which
provided: “[Michael’s company], Portola Realtors, is the listing broker for the Property
and will receive a sales commission pursuant to a separate listing agreement for the
Property upon any sale. [¶] . . . [¶] In the case of a potential sale of the Property to one of
the beneficiaries without first listing it on the Multiple Listing Services . . . or taking or
hearing other offers, I recommend that you obtain from each beneficiary the waiver and
consent set forth below so that if you, as Trustee, do decide to sell the Property to a
beneficiary or for a beneficiary’s direct benefit, each other beneficiary consents to the
transaction after being advised of the purchase price and the significant terms and
conditions of the transaction and waives any claims against you, as Trustee, arising from
such a transaction.”
In February 2014, John and his wife, Lisa, signed a purchase contract, agreeing to
purchase the Property from the Trust for $2,880,000.3 The proposed sale to John was
expressly conditioned on approval by the probate court of both the purchase contract and
Michael’s commission.
4 On February 14, 2014, Michael, acting as trustee, filed a

3 This purchase price was above the value of several appraisals.
4 Specifically, an addendum to the purchase contract provided: “Seller intends to
have this Contract and their broker’s commission related to the sale of the Property
approved through a court order (‘Order’). If Seller is unable to obtain the Order, Seller
shall have the right to cancel this Contract. Buyer shall have the option to cancel the
Contract if the Order is not obtained within 60 days of the date of the Contract.”
5
verified “Petition For Order Authorizing Trustee to Serve as Broker for Sale of Real
Property and Authorizing Sale of Real Property to Family Member” (petition to sell).
5
Michael’s petition to sell cited Probate Code section 17200, subdivisions (b)(6) and
(b)(9), and sought probate court approval of both the terms of the proposed sale and the
broker’s commission Michael had agreed to pay himself under the listing agreement.
Although Betty Jo, Karen, and Susan did not oppose the sale, they objected to
Michael receiving a commission greater than $20,000—the maximum annual trustee’s
compensation allowed under section 7.05 of the Trust—or “standing in the dual position
of a trustee of this trust, with all the fiduciary obligations that that entails, and as a
broker . . . .”
In response to his sisters’ objections, Michael filed a reply brief and declaration, in
which he described a compensation arrangement he had with Joseph during Joseph’s
lifetime. In the reply brief, Michael “request[ed] that the [probate court] consider three
important points in determining whether to grant his request to be paid a commission:
1) The commission is part of a larger compensation agreement implemented by [Joseph];
2) [Michael] is entitled to that compensation due to his work as superintendent of
construction [of the Property] . . . ; and 3) the cap on Trustee compensation stated in the
Trust is unrelated to either the fees of a real estate broker or [Michael’s] compensation
agreement with [Joseph].” In support, Michael’s declaration attested: “[O]ver the last
forty years, I was employed by [Joseph] . . . . [¶] My compensation agreement with
[Joseph] was that I would receive $48,000 per year, plus a real estate broker’s
commission on the sale of properties that [Joseph] developed at Portola Valley Ranch.

5 Undesignated statutory references are to the Probate Code. Section 17200
provides, in relevant part: “(a) Except as provided in Section 15800, a trustee or
beneficiary of a trust may petition the court under this chapter concerning the internal
affairs of the trust or to determine the existence of the trust. [¶] (b) Proceedings
concerning the internal affairs of a trust include, but are not limited to, proceedings for
any of the following purposes: [¶] . . . [¶] (6) Instructing the trustee. [¶] . . . [¶] (9) Fixing
or allowing payment of the trustee’s compensation or reviewing the reasonableness of the
trustee’s compensation.”
6
One such property was [the Property]. [¶] . . . [¶] There was never any indication from
[Joseph] that my compensation plan with him would be altered by my service as Trustee
. . . . The commission I am seeking for the sale of [the Property] is part of a larger
compensation agreement for my work in developing properties, supervising construction,
and selling properties for [Joseph’s] company. [¶] The 4.5% commission I am to earn
under the Listing Agreement is not, as my sisters have alleged, part of the compensation I
am to earn for my work as Trustee.” (Italics added.) In short, “[Michael] is wearing two
hats—that of Trustee, and that of broker/employee of [Joseph’s] company. The
compensation cap in the Trust is a limitation only when wearing the first hat. The
commission was earned wearing the second hat. [¶] . . . [Michael] was promised the
commission, he earned the commission, and the commission should be paid.”
After argument, the probate court initially expressed its inclination to deny
Michael’s petition to sell without prejudice to Michael filing a contractual claim against
the Trust. However, the court was later convinced, at Michael’s insistence that “he does
have a claim” and that his attorney “[did not] want to have to re-file,” to hold an
evidentiary hearing.
6 In advance of the evidentiary hearing, Michael filed a trial brief,

6 At argument, the following colloquy occurred:
“[BETTY JO’S COUNSEL]: . . . This is just not the appropriate forum for this.
“THE COURT: I agree.
“[BETTY JO’S COUNSEL]: If they have a contractual claim, let them bring it.
We haven’t had any discovery. We haven’t had a chance to depose him. [¶] You know,
he could say anything he wants about what kind of agreement he had. . . . [T]his is just
certainly not the time for him to start raising this as a claim. Let him do it in a hearing
where everybody can have a full hearing and hear all the evidence on it.
“THE COURT: I tend to agree. Absolutely. . . . [T]here clearly is no agreement
amongst the beneficiaries. The petition is denied without prejudice.
“[MICHAEL’S COUNSEL]: . . . [¶] . . . [¶] Your Honor, I have requested an
evidentiary hearing on this petition. So, I’m not sure that the Court can override my
request for an evidentiary hearing. I don’t want to have to re-file. I would rather have—
“THE COURT: Well, . . . we are talking about $130,000. We are talking about
money, . . . aren’t we?
“[MICHAEL’S COUNSEL]: We are indeed, yes.
“THE COURT: Can’t that just be filed as a claim?
7
which once again explained he was entitled to payment of a commission under the oral
agreement. Michael’s direct testimony at the evidentiary hearing was, for the most part,
consistent with facts asserted in his trial brief and declaration. However, at one point
during cross-examination, Michael testified that his request to receive a commission on
the sale of the Property was justified solely by his work pursuant to the listing agreement,
and was not compensation for construction work he performed before Joseph died.7
At the conclusion of the evidentiary hearing on May 12, 2014, the probate court
granted Michael’s petition to sell in part. The court authorized sale of the Property to
John and Lisa.
8 However, the court denied the request for payment of the proposed
broker’s commission because Michael’s duty, as trustee, to refrain from taking an adverse

“[MICHAEL’S COUNSEL]: Well, no. Because we have to figure out, first of all,
. . . [¶] . . . [¶] how that sale is going to be conducted. Because [Michael’s] real estate
brokerage is on the hook. [¶] . . . [¶] [Michael]’s brokerage . . . is either going to have
liability for the sale or it is not.”
7 During cross-examination, Michael testified as follows:
“[BETTY JO’S COUNSEL]: Your four and a half percent [commission] is what
you claim that you are entitled to under the broker’s listing agreement; is that correct?
“[MICHAEL]: That’s correct. [¶] . . . [¶]
“[BETTY JO’S COUNSEL]: . . . Isn’t it true that the listing agreement says
nothing about you being compensated for any work you did constructing or supervising
the house; isn’t that correct?
“[MICHAEL]: That’s correct. [¶] . . . [¶]
“[BETTY JO’S COUNSEL]: So are you testifying then that you were entirely,
100 percent compensated for all the work you did as superintendent on [the Property]?
“[MICHAEL]: Yes. . . . [¶] . . . [¶] The project is finished. The $48,000 is for all
the work I did.
“THE COURT: That’s not the question being asked. [¶] . . . [¶] . . . The question
that’s been asked, twice, [Michael], is, your testimony is that you have been compensated
for all the work you did supervising construction, overseeing construction; is that correct.
“[MICHAEL]: Yes. [¶] . . . [¶]
“[BETTY JO’S COUNSEL]: . . . Your claim for $130,000 is solely for the work
you did as the broker on [the Property]; is that correct?
“[MICHAEL]: It was the listing agreement, yes.”
8 It appears the Property was sold to John and Lisa and the proceeds of sale were
distributed among the five beneficiaries.
8
interest with regard to the beneficiaries would be violated, “if the [listing agreement] was
consummated and completed.” The court also explained, “The proof that’s been
submitted with regard to the contract between [Joseph] or his related entities and
[Michael], the current trustee, is both vague, and ultimately unenforceable . . . . I find
insufficient evidence to support its existence . . . .”
On March 18, 2015, Betty Jo, Karen, and Susan filed a petition to enforce the
Trust’s no contest clause and to remove Michael as trustee. In relevant part, respondents’
petition asserted that Michael’s petition to sell was, in fact, a creditor’s claim based on an
oral contract and that, by filing his petition, Michael had triggered the no contest clause.
Respondents claimed: “The allegations in [Michael’s] Reply Memo marked a pivot in
[his] alleged basis for payment of the commission from that of Trustee compensation, as
alleged in the original [petition to sell], to a creditor’s claim brought against the trust by
[Michael], in his individual capacity as a realtor, based upon the alleged oral agreement
purportedly made with [Joseph]. [¶] . . . [¶] The arguments raised and the relief requested
in [Michael’s] Reply Brief, sworn declaration, and testimony under oath, fit . . . the
definition provided for a contest under Section 9.04 a., subsection (iii) of the Trust in that
(1) it is a claim raised in a pleading by [Michael], in his individual capacity, that he was
to be given the exclusive right to list and sell the property and receive the commission
therefrom, based on an oral agreement with [Joseph] and (2) that he was entitled to the
court granting that specific relief by agreeing that the commission to be paid was based
on that oral agreement.”
Michael objected to respondent’s petition, arguing it should be denied because his
petition to sell did not seek to invalidate the Trust, or any of its provisions, and because
he never filed a creditor’s claim on a Judicial Council Forms, form DE-172. Argument
was heard and the trial court took the matter under submission. On September 14, 2015,
the probate court entered its “Order Granting Petition for Declaration That Trust
Beneficiary Michael Whelan’s Claim Violated the 1996 Whelan Trust Non-Contest
Clause” (order enforcing the no contest clause).
9
The court rejected the notion that Michael’s petition to sell did not seek to
invalidate any portion of the Trust. The court explained: “(1) Paragraph 9.04 does not
limit the scope of actions that qualify as contests to petitions that seek to invalidate some
portion of the trust, and (2) even if it did, [Michael’s petition to sell] contested the
provisions in Section 7.05 of the [Trust] that limited the trustee compensation to $20,000
‘for all services rendered by him or her,’ essentially seeking to invalidate the ‘for all
services’ language. [¶] . . . [¶] [Michael’s] claim clearly qualifies as a creditor claim as it
seeks compensation under an alleged oral agreement for services provided prior to
[Joseph’s] death. ( . . . § 21311(a)(3); Dacey v. Taraday (2011) 196 Cal.App.4th 962,
984.) The claim meets the definition of [a contest under the ‘seek to obtain an
adjudication’ prong of] Trust Paragraph 9.04(a) as it is based on an oral agreement.” The
probate court recognized that “section 21311, subdivision (a)(3) provides that a no
contest clause can only be enforced against the filing of a creditor’s claim if the no
contest clause expressly provides for that application.” (Italics added.) Because the no
contest clause expressly “includes an action that ‘seeks to obtain an adjudication’. . . and
then defines a claim that ‘seeks to obtain an adjudication’ as including an alleged oral
agreement,” the no contest clause was triggered. Michael’s petition to sell “sought to
enforce an alleged oral agreement for services Michael . . . performed prior to [Joseph’s]
death.” Michael filed a timely notice of appeal.9

9 It is not clear the order enforcing the no contest clause is appealable. Code of
Civil Procedure section 904.1, subdivision (a)(10), provides that an appeal may be taken
“[f]rom an order made appealable by the provisions of the Probate Code.” Section 1304,
subdivision (d), in turn, provides: “With respect to a trust, the grant or denial of the
following orders is appealable . . . [¶] . . . [¶] Determining whether an action constitutes a
contest under former Chapter 2 (commencing with Section 21320) of Part 3 of
Division 11 . . . .” (Italics added.) However, Michael did not obtain an order in a safe
harbor proceeding under former section 21320. Under former section 21320, “motions
are filed by persons contemplating actions which potentially constitute will contests
before taking such action.” (Jacobs-Zorne v. Superior Court (1996) 46 Cal.App.4th
1064, 1072.) Jacobs-Zorne determined an order summarily adjudicating a claim that a
petition already filed violated a no contest clause was not an appealable order. The Court
of Appeal reviewed the order nonetheless, treating the appeal as a petition for writ of
10
II. DISCUSSION
Michael maintains the probate court erred in concluding his petition to sell
violated the no contest clause. He attempts to shift the focus from the trial court’s
relatively clear-cut analysis by raising a variety of arguments that focus on the form,
rather than the substance, of his claim. Specifically, Michael contends his petition was
not a contest because he did not file it in his capacity as beneficiary and because he did
not file a “pleading” in which he sought payment on a creditor’s claim. Michael’s
position is that he was merely seeking increased trustee compensation. He also contends
the no contest clause does not apply because his was only a “routine” creditor’s claim.
Michael’s appeal rests, primarily, on his assertion that the probate court misconstrued the
Trust’s no contest clause, as well as the governing statutory language. As such, it
presents a pure question of law, which we review de novo.10 (Johnson v. Greenelsh

mandate. (Ibid.) We need not resolve the appealability issue because, even if the order
enforcing the no contest clause is not appealable, we would exercise our discretion to
treat the purported appeal as a petition for writ of mandate. The matter already has been
fully briefed and, like in Jacobs-Zorne, “[i]f we deny review, then a determination of the
parties’ rights would be delayed until such time as a final judgment is entered, an appeal
sought, and briefing by the parties completed. Clearly, this is not a speedy remedy for
the parties and judicial economy would not be served by deferring resolution of the issue
in dispute.” (Ibid.)
10 Respondents argue, in their brief, the trial court’s order should be reviewed for
substantial evidence, asserting Michael challenges only the probate court’s purported
factual findings—its characterization of the petition to sell. Respondents also insist we
must imply findings in their favor because Michael did not request a statement of
decision. (See Code Civ. Proc., § 632.) However, “Code of Civil Procedure section 632
statements of decision apply upon the trial of a question of fact by the court. . . . The
general rule is that a trial court need not issue a statement of decision after a ruling on a
motion.” (Fair v. Bakhtiari (2011) 195 Cal.App.4th 1135, 1148, italics added.)
“[A]lthough the doctrine of implied findings related to statements of decision does not
apply to the court’s [ruling on] the motion here, the usual standard of review—that we
will imply findings in favor of the court’s [ruling on] the motion—does.” (Ibid.) Here,
after receiving legal argument but holding no evidentiary hearing, the trial court’s order
clearly expressed the legal conclusion the Trust’s no contest clause was triggered by
Michael’s petition to sell. It is this conclusion Michael challenges, and we are
unpersuaded the trial court made findings of fact in characterizing Michael’s pleadings.
11
(2009) 47 Cal.4th 598, 604; Funsten v. Wells Fargo Bank, N.A. (2016) 2 Cal.App.5th
959, 973; Scharlin v. Superior Court (1992) 9 Cal.App.4th 162, 168.) After independent
review, we reject Michael’s various arguments and conclude the probate court’s ruling
was correct.
“An in terrorem or no contest clause in a trust instrument ‘essentially acts as a
disinheritance device, i.e., if a beneficiary contests or seeks to impair or invalidate the
trust instrument or its provisions, the beneficiary will be disinherited and thus may not
take the gift or devise provided under the instrument.’ (Burch v. George (1994) 7 Cal.4th
246, 265 (Burch).) No contest clauses, whether in wills or trusts, have long been held
valid in California. [Citations.] Such clauses promote the public policies of honoring the
intent of the donor and discouraging litigation by persons whose expectations are
frustrated by the donative scheme of the instrument. ([Id.] at p. 254.) [¶] In tension with
these public policy interests are the policy interests of avoiding forfeitures and promoting
full access of the courts to all relevant information concerning the validity and effect of a
will, trust, or other instrument. [Citation.] In light of these opposing interests, the
common law in California recognized the enforceability of no contest clauses, albeit
strictly construed, ‘so long as the condition was not prohibited by some law or opposed to
public policy.’ ” (Donkin v. Donkin (2013) 58 Cal.4th 412, 422, italics added (Donkin).)
“In 2005, the Legislature asked the [California Law Revision] Commission to
once again study the advantages and disadvantages of enforcing a no contest clause in a
will, trust, or other estate planning instrument. (Sen. Conc. Res. No. 42, Stats. 2005
(2005–2006 Reg. Sess.) res. ch. 122, p. 6159.) [¶] In 2008, the Commission issued a
report recommending retention, but with significant revision, of the no contest clause
statutes. [Citation.] According to the Commission, no contest clauses are still supported

The trial court took judicial notice of Michael’s declaration and the transcript from the
earlier evidentiary hearing because “the facts and argument offered by Michael . . .
constitute the grounds on which he sought court action and the nature of those grounds
are determinative . . . .” At oral argument before this court, respondents conceded this
appeal presents a matter of law.
12
by a number of important public policy interests, including respecting a transferor’s
ability to control the use and disposition of his or her own property and to avoid the cost,
delay, public exposure, and additional discord between beneficiaries involved in litigation
over the transferor’s estate plan. [Citation.] When the proper disposition of a transferor’s
property is complicated by difficult property characterization issues, a no contest clause
may also appropriately operate as a ‘forced election’ in order to avoid ownership
disputes.” (Donkin, supra, 58 Cal.4th at pp. 424–425, fns. omitted.)
“The Commission acknowledged, however, that other public policy concerns ‘can
trump a transferor’s intention to create a no contest clause.’ [Citation.] It noted that as a
matter of general public policy, ‘a person should have access to the courts to remedy a
wrong or protect important rights.’ [Citation.] The Commission stated that a no contest
clause should be applied conservatively to avoid a forfeiture that is not intended by the
transferor. [Citation.] The Commission agreed that judicial proceedings may be
necessary to determine a transferor’s intentions. [Citation.] And it emphasized that
important public policy interests support judicial supervision of an executor, trustee, or
other fiduciary. [Citation.] [¶] . . . [¶] To address the ‘most common and serious
problem’ of uncertainty in application of the existing law [citation], the Commission
recommended a simplification of the statutes [citation]. As pertinent here, the
Commission proposed to narrowly define the types of contest subject to a no contest
clause, in place of the existing ‘open-ended definition of “contest,” combined with a
complex and lengthy set of exceptions.’ [Citation.] Under such a statutory scheme, ‘any
pleading that is not one of the expressly covered types would not be governed by a no
contest clause’ without the need for any further analysis.” (Donkin, supra, 58 Cal.4th at
pp. 425–426.)
“Accordingly, the Commission recommended that a no contest clause should be
enforceable only in response to three types of contests: (1) a direct contest, as
specifically defined, brought without probable cause; (2) a creditor claim; and (3) a
challenge to a transfer of property amounting to a forced election. [Citation.] [¶] In
response to the Commission’s report, the Legislature repealed the existing statutes and
13
replaced them with a new set of statutes governing no contest clauses, essentially as
recommended by the Commission. (Stats. 2008, ch. 174, §§ 1, 2, p. 567 [repealing
former § 21300 et seq., and adding § 21310 et seq.]; Sen. Rules Com., Off. of Sen. Floor
Analyses, Unfinished Business Analysis of Sen. Bill No. 1264 (2007–2008 Reg. Sess.) as
amended June 18, 2008.) Effective on January 1, 2009, operative on January 1, 2010,
and applying to instruments that became irrevocable on or after January 1, 2001, the new
statutory provisions generally limit enforceability of the no contest clause to (1) direct
contests brought without probable cause; (2) challenges to the transferor’s ownership of
property at the time of the transfer, if expressly included in the no contest clause; and
(3) creditor’s claims and actions based on them, if expressly included in the no contest
clause. (§§ 21311, subd. (a)(1)–(3), 21315; Stats. 2008, ch. 174, §§ 2, 3, pp. 567–568.)
The new law also discontinued the safe harbor declaratory relief procedure of former
section 21320.”
11 (Donkin, supra, 58 Cal.4th at pp. 426–427, italics added.)
Under the law as amended in 2010, a no contest clause is statutorily defined as “a
provision in an otherwise valid instrument that, if enforced, would penalize a beneficiary
for filing a pleading in any court.” (§ 21310, subd. (c), italics added.) A “contest” is
defined as “a pleading filed with the court by a beneficiary that would result in a penalty
under a no contest clause, if the no contest clause is enforced.” (§ 21310, subd. (a),
italics added.) “ ‘Pleading’ means a petition, complaint, cross-complaint, objection,
answer, response, or claim.” (§ 21310, subd. (d).) Section 21311, subdivision (a),
provides: “A no contest clause shall only be enforced against the following types of
contests: (1) A direct contest that is brought without probable cause. [¶] (2) A pleading
to challenge a transfer of property on the grounds that it was not the transferor’s property
at the time of the transfer. A no contest clause shall only be enforced under this
paragraph if the no contest clause expressly provides for that application. [¶] (3) The
filing of a creditor’s claim or prosecution of an action based on it. A no contest clause

11 The current law applies to the Trust because it is an “instrument . . . that became
irrevocable on or after January 1, 2001.” (§ 21315, subd. (a).)
14
shall only be enforced under this paragraph if the no contest clause expressly provides for
that application.” (Italics added.) “The effect of [section 21311] is to make the trust’s no
contest clauses unenforceable unless the beneficiaries’ proposed action is covered by one
of the three specified categories of contest.” (Donkin, supra, 58 Cal.4th at p. 430, italics
added.)
Whether there has been a contest within the meaning of a specific no contest
clause depends upon the circumstances of the case and the language of the clause.
(Johnson v. Greenelsh, supra, 47 Cal.4th at p. 604.) “[A] no contest clause shall be
strictly construed.” (§ 21312.) However, “ ‘[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 testator’s intentions that control,
and a court ‘must not rewrite the [testator’s] will in such a way as to immunize legal
proceedings plainly intended to frustrate [the testator’s] unequivocally expressed intent
from the reach of the no-contest clause.’ ” (Burch, supra, 7 Cal.4th at p. 255.)
A. Michael’s petition to sell was a contest under section 21311.
Respondents do not contend Michael filed a direct contest to the Trust or a petition
challenging a transfer of property.12 The main question in this case is whether Michael’s
petition to sell constituted a creditor’s claim, and, if so, whether the Trust’s no contest
clause “expressly provides” for application to the type of creditor’s claim Michael
pursued. (See § 21311, subd. (a)(3) [no contest clause shall be enforced against “[t]he

12 A direct contest is defined in section 21310, subdivision (b): “ ‘Direct contest’
means a contest that alleges the invalidity of a protected instrument or one or more of its
terms, based on one or more of the following grounds: [¶] (1) Forgery. [¶] (2) Lack of
due execution. [¶] (3) Lack of capacity. [¶] (4) Menace, duress, fraud, or undue influence.
[¶] (5) Revocation of a will pursuant to Section 6120, revocation of a trust pursuant to
Section 15401, or revocation of an instrument other than a will or trust pursuant to the
procedure for revocation that is provided by statute or by the instrument. [¶]
(6) Disqualification of a beneficiary under Section 6112, 21350, or 21380.”
15
filing of a creditor’s claim or prosecution of an action based on it,” so long as the “no
contest clause expressly provides for that application”].)
Michael’s overarching argument seems to be that the probate court’s ruling
violates the preference for bright line rules embodied by the 2009 amendments.
However, Michael overlooks the fact that under both the old and new law, the filing of a
creditor’s claim (or prosecuting an action based on the claim) is a contest only if that
activity is expressly identified as a violation of the no contest clause in the Trust.
(Compare § 21311, subd. (a)(3) with former § 21305, subd. (a)(1); Revision of No
Contest Clause Statute (Jan. 2008) 37 Cal. Law Revision Com. Rep. (2007) pp. 389–390,
403 [no change in the law recommended with respect to creditor’s claims].) Given that
section 21311, subdivision (a)(3) merely continues the same rule previously embodied in
former section 21305, subdivision (a)(1), we start by addressing some of the pre-2009
case law exploring the concept of a forced election. (See also § 21313 [common law
governs enforcement of no contest clause to the extent probate code does not apply].)
Michael did not cite Estate of Coplan (2004) 123 Cal.App.4th 1384 (Coplan) in his
briefs, but at oral argument he urged us to reach a similar result.
In Coplan, supra, 123 Cal.App.4th 1384, a beneficiary of her deceased father’s
will appealed from an order denying a motion for enforcement of the will’s no contest
clause against the personal representative, the appellant’s sister. (Id. at p. 1386.) The
decedent’s will provided no compensation to the executor and included a no contest
clause providing for disinheritance of any beneficiary who contested the will, or its
provisions, or who “ ‘shall not if called upon defend or assist in good faith in the defense
of any and all such contest.’ ” (Id. at pp. 1386, 1388–1389.) The no contest clause also
included a specific exception: “Positions taken in proceedings relating to instructions or
accountings shall not be deemed to be a contest.” (Id. at p. 1389, italics added.)
The appellant in Coplan asserted the personal representative violated the will’s no
contest clause by petitioning for relief of the will’s no compensation clause. Specifically,
the personal representative had filed, but then withdrew, a request to be paid $45,000, as
a percentage of the $3.2 million estate. She did not assert the no compensation clause
16
was invalid, but sought relief, in her capacity as the personal representative, based on an
extensive undertaking of services over the course of eight years. (Coplan, supra,
123 Cal.App.4th at pp. 1387, 1389.) In these circumstances, the personal representative
did not violate the no contest clause. (Id. at pp. 1386, 1389–1390.) The court highlighted
that the personal representative had withdrawn her request for payment and explained:
“Although the amount of the residue available for distribution would have been reduced
had the petition been granted, that fact does not necessarily make the action a contest. . . .
[¶] While the decedent intended that the personal representative not be compensated for
services, it is less apparent that he intended to disinherit a personal representative who
requested compensation. . . . [S]ection 10802, subdivision (b), specifically allows a
personal representative to petition the court to be relieved of a compensation provision.
In addition, [the personal representative’s] request can be seen as a position taken ‘in
proceedings relating to instructions or accountings’ under the terms of the no-contest
clause. The no-contest clause does not require that the excepted action be a request for
instructions or an objection to an accounting, but rather states that a position taken in a
proceeding relating to either is excepted. Arguably, moreover, the decedent did not
anticipate the extent of the services necessary to probate the Will.” (Id. at pp. 1389–
1390.)
Coplan is obviously distinguishable, as Michael never withdrew his request for
payment of a commission, he based his request, in part, on an oral agreement with
Joseph, and the no contest clause involved is different (and contains no express exception
for instruction requests). Colburn v. Northern Trust Co. (2007) 151 Cal.App.4th 439
(Colburn), involves a no contest clause more similar to the one before us. In that case,
the decedent’s former wife proposed to file a creditor’s claim to enforce a marital
settlement agreement providing spousal and child support. (Id. at pp. 442, 445–446, 448–
452.) The trust created $3 million trusts for each child and provided an annuity trust to
make spousal support payments. (Id. at pp. 443–444.) It also included a detailed no
contest clause, providing for disinheritance if any person “ ‘directly or indirectly, contests
or attacks this trust . . . , takes any action that would frustrate the dispositive plan, . . . or
17
takes any of the [following] actions . . . : (a) filing a creditor’s claim or prosecution of an
action based thereon, (b) commencing any legal action or proceeding to determine the
character of property, (c) challenging the validity of any instrument, contract, agreement,
beneficiary designation, or other document executed by me and pertaining to the
disposition of my assets . . . , and (d) petitioning for settlement or for compromise
affecting the terms of this trust or my Will, or for interpretation of this trust or my
Will.’ ” (Id. at p. 444, italics added.) The decedent’s former wife filed safe harbor
applications asking the court to determine whether creditor’s claims for spousal and child
support would violate the no contest clause. (Id. at pp. 445–446.) The reviewing court
answered in the affirmative. (Id. at p. 446.)
The Colburn court explained: “A no contest clause may result in a ‘forced
election’ where a beneficiary is obligated to choose between two inconsistent or
alternative rights or claims because the testator or trustor clearly intended that the
beneficiary not enjoy both. [Citation.] Put another way, a claimant cannot at the same
time take the benefits under a testamentary instrument and repudiate the losses; she must
accept the terms in toto, or reject them in toto.” (Colburn, supra, 151 Cal.App.4th at
p. 447.) Because the no contest clause was “a paradigm of clarity” that provided for
disinheritance when a beneficiary filed a creditor’s claim, identified the dissolution
judgment, and stated the decedent’s specific intent to fulfill his spousal and child support
obligations through his trust provisions, the no contest clause barred the proposed
creditor’s claims. (Id. at p. 448.) The court also rejected the former wife’s argument
that, assuming the no contest clause was triggered, public policy considerations (in favor
of enforcement of spousal and child support orders) should bar the clause’s enforcement.
(Id. at p. 450.) The court observed: “Enforcement of the no contest clause extinguishes
[the decedent’s] testamentary gifts to [his former wife] and the children but it in no way
prevents them from enforcing [his] support obligations under the marital judgment. . . .
[T]he no contest clause does not deprive the former spouse or children of their right to
support under the marital judgment, nor does it hinder their ability to assert those
interests. To the extent [they] believe their claims under the marital judgment are
18
payable by [the decedent’s] estate, they are free to pursue those claims at their option.”
(Id. at pp. 450–451.)
In Zwirn v. Schweizer (2005) 134 Cal.App.4th 1153 (Zwirn), the no contest clause
was more narrowly drawn—only applying “[i]f any beneficiary . . . contests in any court
the validity of this trust . . . or seeks to obtain an adjudication . . . that this trust or any of
its provisions . . . is void.” (Id. at p. 1155, italics added.) In Zwirn, a nephew sought to
enforce, via creditor claim, an oral agreement with his aunt and uncle, wherein they
purportedly agreed to leave him 50 percent of their estate. (Id. at pp. 1154–1155.) The
aunt’s estate plan left 75 percent of the estate to other relatives and provided the nephew
only income from the remaining 25 percent, which was to remain in trust. (Id. at
p. 1155.) Despite the no contest clause’s inapplicability to creditor’s claims, and former
section 21305, subdivision (a)(1)’s provision that the filing of a creditor claim did not
constitute a contest unless expressly identified in the no contest clause, the Zwirn court
determined the nephew nevertheless was subject to disinheritance, under the clause. (Id.
at pp. 1156–1158, & fn. 8.) The court explained: “It seems clear to us that if the
beneficiary had a contractual claim that did not involve a result which, if successful,
would alter the intent of the testator regarding the general disposition plan of the trust
. . . containing the no contest provisions, that claim would be a ‘creditor’s claim’
pursuant to [former] section 21305. . . . [¶] The issue in the case at bench is more
complex, involving a claim that goes directly to the testator’s plan of distribution, not
merely the amount of money given to a creditor or the reduced amount given to other
beneficiaries because of the creditor’s claim.” (Id. at p. 1158, italics added.) Because the
nephew’s “claim” could also be characterized as a “contest” that sought to invalidate the
aunt’s general plan of disposition, the no contest clause applied. Any other result would
make the no contest clause meaningless. (Id. at pp. 1159–1160.)
Unlike the creditor in Zwirn who sought to rewrite his aunt’s entire disposition
plan, Michael sought only to collect a commission purportedly owed him under an oral
agreement with Joseph. Zwirn’s reasoning nevertheless remains instructive. The portion
of Michael’s petition based on an oral compensation contract constituted a “claim for . . .
19
money owing [which] would . . . be appropriate as a ‘creditor’s claim.’ ” (Zwirn, supra,
134 Cal.App.4th at p. 1158.)
The dispositive features of these cases are the terms of the no contest clauses
themselves. It is irrelevant that Michael’s contractual claim would not, if successful,
have altered his parents’ general disposition plan and, instead, merely reduced the amount
of assets available to the other beneficiaries. The plain language of the no contest clause
before us contains no limiting requirement, nor is such a limitation required by the
probate code. (Compare § 21311, subd. (a)(3) with §§ 21310, subd. (b), 21311,
subd. (a)(1) [only a direct contest must seek to invalidate a decedent’s trust]; Colburn,
supra, 151 Cal.App.4th at p. 449 [reason for prosecuting creditor’s claim is irrelevant
when “the mere filing of a creditor’s claim is a contest within the plain language of the no
contest clause”]; Zwirn, supra, 134 Cal.App.4th at pp. 1158, 1160.) Thus, we need not
consider whether the probate court was correct that Michael’s petition triggered the no
contest clause because it sought to invalidate the $20,000 cap on trustee compensation.
The no contest clause at issue, in the case before us, is more analogous to that
found in Colburn than that at issue in Zwirn. Like the no contest clause in Colburn, the
language of the no contest clause is broad and clear. The Trust’s no contest clause
provides: “If any Beneficiary of this Declaration of Trust or any of our legal heirs . . .
seeks to obtain an adjudication, or contests, or attacks this Declaration of Trust, any of its
provisions or any amendments thereto, or in any manner, directly or indirectly, attempts
to have it or any of the Trusts or beneficial interests created by it declared invalid, we
specifically disinherit such person . . . .” The clause also defines “the words ‘contest,’
‘attack,’ or ‘seek to obtain an adjudication’ ” to include, “without limitation, any claims
asserted against any trust hereunder, a Settlor’s Will, a Settlor’s estate, assets passing
pursuant to a beneficiary designation, or any other assets encompassed by the Settlor’s
estate plan based on: (i) a ‘quantum meruit’ theory (including a creditor’s claim based
upon such theory); (ii) a constructive trust theory; (iii) any alleged oral agreement (or an
alleged written agreement that is to be proved by parol evidence) claiming that the Settlor
agreed to give or bequeath anything to such person, whether or not such alleged
20
agreement is also alleged to be made in consideration for the provision of personal or
other services to a Settlor; or (iv) any action to characterize property scheduled in the
name of the Trustee or designated in the name of the Trustee, in this trust instrument or
by any subsequent designation, as belonging in whole or in part to such claimant under
any other theory, including, but not limited to community property, joint tenancy or
payable on death designation. For purposes of this Paragraph, the term ‘contestant’ shall
include any person encompassed by the above-described forms of legal actions or claims.
A routine creditor’s claim (such as for funeral costs or a written promissory note) shall
not be considered a contest.” (Italics added.)
Michael’s parents unequivocally expressed their intent that any beneficiary with a
creditor’s claim based on an oral agreement must make an election between pursuing
such claim or taking under the Trust. The no contest clause clearly distinguishes between
“routine” creditor’s claims (based on written contracts that would be less likely to be
fraudulent or lead to litigation) and those based on oral agreement, as was Michael’s. By
filing his petition for sale, which sought among other things to enforce a claim for
payment on an oral agreement, Michael effectively, and explicitly, pursued such a
creditor’s claim. Michael did more than make a claim for payment of an expense of
administration, as he suggests. Apparently recognizing that he could not justify a
$130,000 commission solely on the basis of the listing agreement he had entered with
himself (and which was incompatible with his “duty to administer the trust solely in the
interest of the beneficiaries” (§ 16002, subd. (a)), Michael changed tack and sought to
justify the commission as money owed to him under an oral compensation agreement.
Thus, Michael’s actions triggered the no contest clause by “ ‘frustrat[ing] [the settlors’]
unequivocally expressed intent.’ ” (Burch, supra, 7 Cal.4th at p. 255.)
Michael attempts to avoid this result by maintaining his claim was not a creditor’s
claim for a variety of reasons. Michael insists he was not a creditor, within the meaning
of section 19000, because he could not have enforced his claim for a commission during
Joseph’s lifetime—it was not an enforceable obligation until the Property was sold by the
21
Trust.13 Michael’s position is that, when a liability arises after the death of the decedent,
it cannot constitute a creditor’s claim against the estate. (See Newberger v. Rifkind
(1972) 28 Cal.App.3d 1070, 1077 (Newberger); Sperry v. Tammany (1951)
106 Cal.App.2d 694, 698 (Sperry).) In its order enforcing the no contest clause, the
probate court explicitly rejected Michael’s argument: “The fact that Michael . . . did not
complete the sale, or for that matter enter into [an exclusive listing agreement]—both
condition precedents to payment of a commission—until after [Joseph’s] death . . . , does
not mean that the claim for the right to earn the commission did not exist as of the date
[Joseph] died. Put another way, had [Joseph] repudiated the alleged compensation
agreement . . . Michael would have had an immediate right to sue for breach.”
The probate court’s ruling is supported by the Legislature’s enactment, after
Newberger and Sperry, of section 19000, subdivision (a) (added by Stats. 1991, ch. 992,
§ 3, p. 4617 and amended by Stats. 1996, ch. 862, § 46, p. 4629). That section provides
unambiguously: “ ‘Claim’ means a demand for payment for any of the following,
whether due, not due, accrued or not accrued, or contingent, and whether liquidated or
unliquidated: (1) Liability of the deceased settlor, whether arising in contract, tort, or
otherwise. (2) Liability for taxes incurred before the deceased settlor’s death, whether
assessed before or after the deceased settlor’s death, other than property taxes and
assessments secured by real property liens. (3) Liability for the funeral expenses of the
deceased settlor.” (Italics added.) “ ‘Creditor’ means a person who may have a claim
against estate property.” (§ 19000, subd. (c), italics added.) Michael has shown no
error.14

13 Michael raises a related argument that any claim for a commission was not
enforceable until approved by the probate court and, accordingly, he asserted no
creditor’s claim. The evidence Michael cites suggests only that the purchase contract was
unenforceable unless approved by the probate court. In any event, this is a factual
argument not raised or developed before the trial court that has been forfeited. (Bayside
Timber Co. v. Board of Supervisors (1971) 20 Cal.App.3d 1, 5.)
14 We only briefly mention Dacey v. Taraday, supra, 196 Cal.App.4th 962,
Wagner v. Wagner (2008) 162 Cal.App.4th 249, and Estate of Yool (2007)
22
Michael next asserts it is dispositive that his claim was presented by way of a
petition for trustee’s instructions (§ 17200, subd. (b)(6), (9)), rather than on form DE-172
adopted by the Judicial Council for creditor’s claims. His reliance on section 9153,
which governs the filing of claims in probate estates, is misplaced. The sections of the
probate code governing filing of claims against the trust of a deceased settlor contain no
requirement that the claim be presented by Judicial Council form. (§§ 19011, 19150–
19153.) Section 19153 merely provides, “[t]he Judicial Council may adopt a claim
form.” Section 19151 requires that a claim be supported by the affidavit of the creditor,
stating the basis for the claim. This requirement was clearly met.
In any event, “the trustee may waive formal defects and elect to treat the demand
as a claim that is filed and established under this part by paying the amount demanded.”
(§ 19154.) Michael appears to have so waived any defect when the respondents and
probate court made clear their belief that Michael’s claim was not properly before the
court and needed to be refiled as a claim or a petition to approve a claim. Any problem
with the procedural form of Michael’s claim is attributable to Michael’s hesitance to
“refile” and his insistence that an evidentiary hearing nevertheless go forward on his
claim. Michael cannot profit from this strategy on appeal. (See In re Marriage of Ilas
(1993) 12 Cal.App.4th 1630, 1640 [“ ‘where a party by his conduct induces the
commission of an error, under the doctrine of invited error he is estopped from asserting
the alleged error as grounds for reversal’ ”].)
Nor can we agree with Michael that this case is like Coplan, supra,
123 Cal.App.4th at page 1390 because he was merely seeking instructions or asking the
court, under section 17200, to allow greater trustee compensation than that provided for

151 Cal.App.4th 867, which are statute of limitations cases and are not particularly
helpful in deciding this case. (Dacey, at pp. 966–967, 979–982, 985–986; Wagner, at
pp. 256–257; Yool, at p. 870.) However, to the extent Dacey provides any assistance, it
appears to be contrary to Michael’s understanding of a creditor’s claim. (Dacey, at p. 986
[“[w]hen a party has a claim based on a contract with the decedent—no matter whether
the obligation has come due or the breach has occurred—Probate Code section 9000 et
seq. will operate to ensure that stale creditors’ claims will not be presented years later”].)
23
under the terms of the Trust. It is true section 17200, subdivision (b)(9), permits a trustee
to petition for an order “fixing or allowing payment of the trustee’s compensation” and
that a probate court, in some circumstances, may order greater compensation to a trustee
than allowed under the terms of trust. (§ 15680, subd. (b).)
15 That such procedures exist
is not particularly relevant. Even putting aside the terms of the no contest clause,
Michael’s argument merely begs the question—was Michael’s petition, in substance, a
petition seeking an order of increased trustee compensation? We think not.
First, such an order “applies only prospectively to actions taken in administration
of the trust after the order is made.” (§ 15680, subd. (c), italics added.) More
importantly, we agree with Michael that “[t]he duties to be performed by a real estate
broker are different than those performed by a trustee.” This is precisely why the probate
court properly looked beyond the form of Michael’s petition, to its substance. Had
Michael presented only a proposed listing agreement for court approval or sought a more
limited increase in his “trustee compensation” to reimburse duties he had undertaken
solely on behalf of the Trust, this may have been a different case. (See Coplan, supra,
123 Cal.App.4th at p. 1390; § 16247 [a trustee has the power to hire “accountants,
attorneys, auditors, investment advisers, appraisers (including probate referees appointed
pursuant to Section 400), or other agents, even if they are associated or affiliated with the
trustee, to advise or assist the trustee in the performance of administrative duties.”].)

15 Section 15680 provides: “(a) Subject to subdivision (b), and except as provided
in Section 15688, if the trust instrument provides for the trustee’s compensation, the
trustee is entitled to be compensated in accordance with the trust instrument. [¶] (b) Upon
proper showing, the court may fix or allow greater or lesser compensation than could be
allowed under the terms of the trust in any of the following circumstances: [¶] (1) Where
the duties of the trustee are substantially different from those contemplated when the trust
was created. [¶] (2) Where the compensation in accordance with the terms of the trust
would be inequitable or unreasonably low or high. [¶] (3) In extraordinary circumstances
calling for equitable relief. [¶] (c) An order fixing or allowing greater or lesser
compensation under subdivision (b) applies only prospectively to actions taken in
administration of the trust after the order is made.”
24
Instead, Michael explicitly grounded his claim for payment of the broker’s commission,
at least in part, on an oral agreement he had with Joseph.
B. Michael’s additional arguments do not have merit.
Michael insists the trial court improperly expanded the language of section 21310,
and the Trust itself, by applying the no contest clause to a petition brought by a trustee,
rather than a beneficiary.16 We disagree. A no contest clause is statutorily defined as “a
provision in an otherwise valid instrument that, if enforced, would penalize a beneficiary
for filing a pleading in any court.” (§ 21310, subd. (c), italics added.) A “contest” is
defined as “a pleading filed with the court by a beneficiary that would result in a penalty
under a no contest clause, if the no contest clause is enforced.” (§ 21310, subd. (a),
italics added.)
Michael asserts he did not file the petition in his capacity as a beneficiary, but did
so only in his capacity as trustee. It is true the caption and body of the petition to sell
identified the petitioning party as “Michael J. Whelan, Trustee.” However, it was
Michael, acting in his individual capacity and not as trustee, who purportedly entered into
an oral agreement with Joseph and who performed work relating to construction on the
Property. Thus, Michael himself admitted, in his reply brief, that “the cap on Trustee
compensation stated in the Trust is unrelated to either the fees of a real estate broker or
[Michael’s] compensation agreement with [Joseph]” and that “[t]he commission was
earned [while Michael was] wearing the [broker/employee] hat,” not his trustee hat.

16 Respondents contend Michael forfeited this argument by raising it for the first
time on appeal. They also contend we can imply a finding that Michael pursued his
petition to sell in his individual capacity. Respondents are correct that Michael did not
initially raise this position in his response and objection to their petition, but he did raise
it, at least in passing, in a footnote in his reply. Generally, appellate courts will not
consider matters raised for the first time on appeal. (Bayside Timber Co. v. Board of
Supervisors, supra, 20 Cal.App.3d at p. 5.) However, we will address the issue because
the question Michael presents is solely an issue of law. (See Waller v. Truck Ins.
Exchange, Inc. (1995) 11 Cal.4th 1, 24; Estate of Mathie (1944) 64 Cal.App.2d 767, 782–
783.)
25
We reject Michael’s assertion that he either filed the petition to sell in his capacity
as trustee or his capacity as a beneficiary. In reality, the petition taken as a whole,
indicates Michael was acting in dual roles—as trustee and as a beneficiary. When it
came to seeking approval of the proposed sale to John and Lisa, he was clearly acting as
trustee. But when he sought to enforce an oral agreement with Joseph, there can be no
other conclusion—he was acting in his individual or beneficiary capacity. The Trust did
not stand to gain as a result of this portion of the petition, it was only Michael
individually who stood to gain. In filing his petition to sell, Michael was acting not just
as trustee, but also as a beneficiary. Nothing in the Trust or the law permits the
conclusion Michael seeks—that the settlors intended Michael’s dual roles (as trustee and
beneficiary) to allow him to litigate the purported oral agreement without triggering the
no contest clause. (See Johnson v. Greenelsh, supra, 47 Cal.4th at p. 609 [“a trustee who
is also a beneficiary might violate a no contest clause by taking action to reverse a
settlor’s exercise of rights conferred by the trust, if the action would effectively nullify or
alter the estate plan set out in the trust”]; In re Estate of Davies (2005) 127 Cal.App.4th
1164, 1173–1174 [beneficiary’s surviving spouse and executrix stands in beneficiary’s
shoes and “cannot escape the no-contest clause on the ground she personally is not a
named beneficiary”]; Genger v. Delsol (1997) 56 Cal.App.4th 1410, 1414, 1423–1424
[widow “ ‘cannot take off the “beneficiary” hat and put on the “personal representative”
hat without running afoul’ ” of no contest clause’s application to any trust beneficiary
acting “ ‘singly or in conjunction with any other person or persons’ ”]; Graham v. Lenzi
(1995) 37 Cal.App.4th 248, 254 [in considering appellate standing, “an appellate court
has discretion to disregard an appellant’s designation as trustee [and] . . . may consider
the representative designation as merely descriptive and treat the appeal as having been
taken in the appellant’s individual capacity”].)
Michael also insists that, contrary to the probate court’s conclusion, his reply brief
and declaration cannot trigger the no contest clause because they are not “pleadings”
under the terms of section 21310, subdivisions (a) and (d). He relies on a stipulation
made by the parties, at the evidentiary hearing, that no claim based on an oral agreement
26
was raised in the petition to sell. We again decline Michael’s invitation to recognize
form over substance. Michael’s reply brief, declaration, trial brief, and testimony at the
evidentiary hearing all requested the probate court to enforce the oral agreement he
purportedly had with Joseph and approve payment of the commission. The statute
defines pleading to mean “a petition, complaint, cross-complaint, objection, answer,
response, or claim.” (§ 21310, subd. (d).) As Michael ultimately conceded at oral
argument, there is no relevant difference (in this context) between a pleading
denominated as a reply and one denominated as an answer or response—they are all
“pleadings.”
We do not share Michael’s concern that enforcing the no contest clause in this
case will impede judicial supervision of trustees. He suggests any beneficiary also
serving as trustee will “be leery of seeking prior approval of many actions related to trust
administration for fear that filing a petition for instructions . . . might later be deemed to
be a contest.” The argument appears disingenuous, given Michael did not seek the
court’s permission, or make any disclosure to the other beneficiaries, before entering into
an exclusive listing agreement with himself. (§ 16004, subd. (a) [“trustee has a duty not
to use or deal with trust property for the trustee’s own profit or for any other purpose
unconnected with the trust, nor to take part in any transaction in which the trustee has an
interest adverse to the beneficiary”]; cf. § 10150, subds. (a), (c) [contract between
personal representative of estate and licensed real estate broker “may grant an exclusive
right to sell property for a period not in excess of 90 days if, prior to execution of the
contract granting an exclusive right to sell, the personal representative obtains permission
of the court to enter into the contract upon a showing of necessity and advantage to the
estate”].)
Regardless of whether Michael’s timeline raises any suspicion regarding his
motives, we are not overly worried that our ruling may discourage litigation—as that is
one of the stated purposes of no contest clauses. Furthermore, it is the substance of
Michael’s claim for payment of the commission, not the fact he filed a petition
purportedly seeking instructions, which triggered the no contest clause. If we were to
27
prioritize form over substance, as Michael asks us to do, we would effectively negate no
contest clauses, especially when a beneficiary serves in a dual role and can disguise his
claim by intermixing it with legitimate requests on behalf of a trust. (See Zwirn, supra,
134 Cal.App.4th at pp. 1158–1159.) Michael has presented no persuasive reason why his
claim for payment under an oral agreement did not trigger the no contest clause. The
probate court properly granted respondents’ petition to enforce the Trust’s no contest
clause.
III. DISPOSITION
The order enforcing the no contest clause is affirmed. Respondents are to recover
their costs on appeal.
28
_________________________
BRUINIERS, J.
WE CONCUR:
_________________________
JONES, P. J.
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SIMONS, J.