As Published In Jury Verdict Publications
When her father dies, survived by his second wife, daughter from first marriage sues for children’s rights in family trust.
Case Name: The Zamlich Family Trust UTD 4/20/2005
Court and Case Number: Sonoma County Superior Court/87261
Date of Jury Verdict: Friday, February 26,2016
Date Action was Filed: Wednesday, October 29,2014
Type of Action: Wills and Probate
Judge or Arbitrator(s): Hon. Rene A. Chouteau
Lisa DeCarlo (Petitioner)
Geertruida “Geertje” Zamlich
Type of Result: Bench Verdict
Gross Verdict or Award: Defense
Attorney for the Plaintiff:
Law Office of Patrick Macias by Patrick M. Macias, Penn Valley
Attorney for the Defendant:
Freedman Law Firm by Michael E. Freedman, San Francisco
Plaintiff’s Technical Expert(s):
Defendant’s Technical Expert(s):
Peter S. Myers
Facts And Background
On March 7, 2005, Steven Zamlich (“Steve”) and his wife Geertje met with their attorney to create a trust that was simple, and served the purpose of taking care of each other on the death of the first spouse to die, and that gave each other the power to revoke or amend the trust upon the death of the first spouse to die.
The trust created a bypass trust for the benefit of Steven’s children from a prior marriage. Plaintiff Lisa DeCarlo, one of Steven’s children, claimed that this bypass trust should have been irrevocable and not subject to the surviving spouse’s power to revoke.
On April 20, 2005, they executed the Zamlich Family Trust. Stephen Zamlich died on February 28, 2014. All property of the trustors is community property. On October 28, 2014, Petitioner Lisa DeCarlo filed her petition to “modify trust instrument, to interpret trust instrument, for removal of trustee.” Ms. DeCarlo claimed that the attorney for the trustors made a drafting error in the trust instrument and requested that the court “reform” the trust instrument to create an irrevocable bypass trust for the benefit of Steven’s children and that the surviving spouse would not be entitled to any principal from the bypass trust. Ms. DeCarlo also sought removal of Geertje Zamlich as trustee, and sought attorney fees and costs.
Ms. DeCarlo claimed that Article 2 of the Zamlich Family Trust providing the surviving spouse with the power to change any beneficiary, amend any provision, and revoke the Trust in whole or in part must be an attorney drafting error. She produced testimony of witnesses who claimed that Stephen Zamlich told them that he would “take care of” his kids on his death.
In order to prove reformation, Lisa DeCarlo must prove by clear and convincing evidence the alleged “true” intent of the settlors, and that the estate planning attorney made a mistake when he reduced that intent to writing.
Ms. DeCarlo failed to produce sufficient evidence let alone clear and convincing evidence. Ms. DeCarlo’s evidence of the alleged “true” intent of the settlor was nothing more than statements of nine or possibly ten witnesses who stated that Stephen Zamlich told them that he planned to “take care of” his kids on his death. Ms. DeCarlo could point to no specific fact to support her claim that the drafting attorney made an error in carrying out Stephen’s intent. On the contrary, the facts establish that Stephen’s intent was to grant the surviving spouse with the power to amend or revoke the trust. The facts demonstrated that Stephen wanted his spouse to have the power of revocation. Stephen’s purpose was to create a plan that provided each spouse with the power of revocation and a default dispositive provision that could be revoked or amended by the surviving spouse. Stephen was fully cognizant of the fact that his children could be disinherited or not, depending on Geertje’s judgment, and that is exactly what he wanted.
Injuries And Other Damages
- Petitioner claimed the value of one half of the community property to be held in an irrevocable bypass trust and distributed to the children or their issue upon the death of Geertruida Zamlich.