Willis E. Urick, III v. Dana Urick as Trustee, etc.

A beneficiary filed a petition for instructions as to

whether the “no contest” clause of his mother’s trust had

been violated after his sister sought to reform the trust to

eliminate his interest. The sister, in her capacity as trustee,

filed a special motion to strike the petition under Code of

Civil Procedure section 425.16 (the anti-SLAPP statute),

1

which the probate court granted. On appeal, the brother

recognizes that petitions to enforce a no contest clause under

the Probate Code necessarily satisfy the first step of the

anti-SLAPP analysis, because they are based on protected

petitioning activity. He contends that petitions to enforce a

no contest clause should be exempt from the anti-SLAPP

statute, however, because applying the anti-SLAPP statute

in this context undermines the purposes of both statutory

schemes. He also contends that he showed a probability of

prevailing under the second step of the analysis, because his

sister filed the reformation petition in her individual

capacity, it was a direct contest and the grounds included

fraud, and she had no probable cause to file it. Although we

appreciate the strength of the argument in favor of

exemption, the plain language of the anti-SLAPP statute

applies to a petition to enforce a no contest clause. We

conclude, however, that the brother established the minimal



1 SLAPP is an acronym for “Strategic Lawsuits Against

Public Participation.” (Equilon Enterprises v. Consumer

Cause, Inc. (2002) 29 Cal.4th 53, 57, fn. 1.)

3

merit necessary to show a probability of success at this stage

of the proceedings. The order is reversed.

FACTS AND PROCEDURAL HISTORY

Allyne Urick’s Estate Plan

On March 8, 2013, Allyne Urick executed the Allyne L.

Urick Trust Agreement.

2 On her death, her daughter Dana

Urick would be the successor trustee. If Dana should cease

to serve, Allyne’s son Willis E. Urick, III would serve as

trustee. The trust was structured as a charitable remainder

annuity trust, which pays a fixed amount of income to the

donor’s beneficiaries and gives the remainder to a charity.

At Allyne’s death, after certain payments and distributions

from the trust estate, the remaining trust principal would be

annuitized and the income distributed in equal shares to

Willis, Dana, and Dana’s son Trentyn Urick-Stasa. Upon

termination of the annuity, the remaining principal would be

distributed to Phillips Academy Andover, “In Memory of

Willis E. Urick, Jr., Class of 1934.” Allyne executed a pourover

will as well.

On January 3, 2014, Allyne addressed a handwritten

note “[t]o whom it may concern,” which stated, “I hereby



2 Because the parties and the decedent share the same

last name, they will be referred to individually by their first

names for clarity.

4

delete my son Willis E. Urick III from the assets of my

Family Trust, established March 8, 2013. [¶] I have shared

my reasons in a document which is in a sealed envelope, to

be opened and read in the event of a contest.”

On August 6, 2014, however, Allyne executed an

“Amendment and Full Restatement of the Allyne L. Urick

Trust Agreement dated March 8, 2013.” It stated that its

provisions “shall control over all earlier statement of the

Trust provisions.” Dana was appointed as the successor

trustee. If she ceased to serve, Wells Fargo Bank was named

as successor trustee. The restated trust was also a

charitable remainder annuity trust. After certain payments

and distributions from the trust estate, the remaining

principal was to be annuitized and the income generated

would be distributed in equal shares to Willis, Dana, and

Urick-Stasa. Payment of the annuity amount was to cease

“upon the earliest of [Urick-Stasa] attaining the age of

thirty-five (35) years, upon the death of the last surviving

named recipient of a share of the annuity amount or upon

the latest date allowed by Internal Revenue Code §[]664.”

Distributions to Urick-Stasa were to be held in trust and

distributed on a schedule. When the payment of the annuity

amount ceased, the remaining principal and any

undistributed income was to be distributed to Phillips

Academy in memory of Willis E. Urick, Jr., Class of 1934.

The trust contained a no contest clause providing, “In

the event that any Beneficiary or other individual who is

specifically not named as a Beneficiary, including

5

grandchildren or spouses of the Trustor’s children, shall

contest any aspect of this Trust or attempt to set aside,

nullify, or void the Trust or the distribution thereof in any

way, whether successfully or unsuccessfully, then the

Trustor directs that such rights of such person shall be

ascertained as it would have been determined had that

person predeceased the execution of this instrument without

living issue.”

Dana was appointed as the successor trustee under the

trust. Allyne passed away on August 18, 2015, and Dana

assumed the role of trustee.

Petition for Reformation of Trust

On February 16, 2016, Dana filed a petition to reform

the trust under Probate Code sections 17000, subdivision

(b)(1), and 17200, subdivisions (b)(3), (b)(4), and (b)(13)–(14).

The petition stated that “Petitioner, Dana Urick, Trustee of

The Allyne L. Urick Trust,” sought to reform the trust on the

grounds that its terms were misrepresented by the drafter,

Allyne had mistakenly signed the trust believing it reflected

her intent, and the trust did not contain the distribution

plan that she requested of the drafting attorney. The

petition noted that mistake of law is a ground for

reformation under Civil Code sections 1578, and that a

written instrument may be reformed on the application of an

aggrieved party under Civil Code section 3399. Dana

proposed to reform the trust to correctly state the trustor’s

6

intent as follows: after distributing specific bequests and

personal property, the remaining principal would be divided

into two shares, with one share for Dana and one for UrickStasa.

The assets would be held in trust for 10 years, then

distributed outright to Dana and Urick-Stasa. If no

beneficiaries survived, the assets would be distributed in

equal shares to four institutions, one of which was Phillips

Academy. No mention was made of the distribution to

Phillips Academy being in memoriam.

The attorney caption at the top of the petition and the

attorney signature block on the final page stated that the

attorneys represented Dana, but did not mention her role as

trustee. Dana signed a verification of the petition which did

not state that she was signing it as trustee.

Dana attached several documents to the reformation

petition, including a letter to Allyne from her attorney Mark

Boykin dated December 14, 2012. Boykin confirmed that

Allyne wanted her son and daughter to receive a fixed

percentage of her estate in the form of an annuity for the

rest of their lives and wanted her grandson to receive a

substantial sum in trust, with the remainder to Phillips

Academy. She wanted to reduce potential estate taxes, but

was more concerned about providing for her grandson and

not having her children receive a large sum of money at her

death.

In a letter dated January 7, 2013, Boykin provided

Allyne with a draft of the trust. He confirmed that Allyne

wanted Willis and Dana to receive an annuity of five percent

7

of her net estate for their lifetimes, with the remainder to

Urick-Stasa. Allyne responded that she wanted Urick-Stasa

to have an equal annuity share to her children. Boykin

explained that he could complete the trust as she asked, but

giving Urick-Stasa a present annuity interest in addition to

the remainder interest could lead to substantial additional

taxes.

In a letter dated February 6, 2013, Boykin enclosed a

draft for Allyne. He explained that he used a charitable

remainder trust based on their telephone conversation in

which she stated that she wanted Phillips Academy to

receive the remainder, even though the gift would probably

not qualify for charitable treatment.

Allyne signed the trust on March 8, 2013. The trust

was funded with her residence, an apartment building, and

several investment accounts. She had a number of bank

accounts payable on death through beneficiary designations

which were not placed in the trust.

After Allyne’s handwritten note on January 3, 2014,

expressing her intent to disinherit Willis, Boykin prepared

an amendment to the trust that made Dana the sole trustee

and distributed annuity amounts to Dana and Urick-Stasa

only. The amendment was never signed. He prepared a

similar amendment in February 2014, which was also never

signed. In August 2014, Boykin prepared the fully restated

trust, which Allyne executed.

Willis and Phillips Academy each objected to the

reformation petition.

8

Petition for Instructions as to Violation of No Contest

Clause

On May 31, 2016, Willis filed a petition for instructions

as to whether Dana’s petition violated the no contest clause

of the trust. He argued that the reformation petition was a

direct contest to invalidate the distributive provisions of the

trust on the basis of fraud, undue influence, and duress, in

violation of Probate Code section 21310, subdivision (b)(4).

Willis sought instructions from the court as to whether the

reformation petition constituted a direct contest under

Probate Code section 21310 et seq., and whether Dana

lacked probable cause to file the petition.

Anti-SLAPP Motion

On August 4, 2016, Dana filed an anti-SLAPP motion

in her capacity as trustee. She argued that the anti-SLAPP

statute applied because filing a petition to reform the trust

was protected litigation activity under the anti-SLAPP

statute. Willis could not show a probability of prevailing on

the merits, because: (1) she filed the reformation petition in

her capacity as trustee; (2) it was not a direct contest,

because she sought to reform the trust on the ground of

mistake; and (3) she had probable cause for filing the

petition.

9

Opposition to Anti-SLAPP Motion

Willis opposed the anti-SLAPP motion. He argued that

the anti-SLAPP statute should not apply to the no contest

provisions of the Probate Code. Even if the statute applied,

he had a reasonable probability of prevailing on the merits.

The evidence showed Dana filed the reformation petition in

her individual capacity as a beneficiary rather than as an

independent trustee. In her petition, for example, she

alleged standing as an aggrieved party under Civil Code

section 3399. Dana could only claim to be an aggrieved

party in her capacity as a beneficiary. Dana’s petition was a

direct contest because it sought to invalidate the distributive

provisions of the trust by disinheriting her brother and the

charity. She lacked probable cause because the restated

trust had superseded the handwritten amendment

disinheriting Willis.

Boykin had videotaped Allyne’s execution of her

original estate plan in 2013. Willis submitted a transcript of

the discussion and the execution of the documents. Allyne

stated that she did not want to leave her estate outright to

her two children. Boykin explained that Dana, Willis, and

Urick-Stasa would receive five percent of the trust for the

rest of their lives, or until Urick-Stasa reached age 35.

Allyne corrected him and said it would be five percent for

each child. They went off the record. On the record, Boykin

stated, “Mrs. Urick, you and I had a discussion off the record

about your desires for the distribution of your estate.”

10

Allyne answered, “That’s correct.” Boykin continued, “And

it’s not five percent to each of your three children.” Allyne

said, “I understand that now.” Boykin responded, “And you

understand that it’s five percent of the entire value of the

trust every year.” Allyne answered, “Correct.” Boykin

added, “Split three ways.” Allyne said, “Right. Got it.”

Boykin asked, “And that’s what you want to do?” Allyne

said, “Yes, I do.” Boykin said, “Okay.” Allyne added, “That

is quite a bit of money from where I am sitting.” Boykin

continued, “All right. And then that is going to continue

until both of your children have passed away and [UrickStasa]

attains age 35 years; correct?” Allyne said, “Correct.”

Boykin asked, “Then what do you want to have happen

to the trust fund? [¶] Where would it be distributed at the

point [Urick-Stasa] reached 35?” They had a discussion off

the record about the length of time that the annuity would

be paid to Urick-Stasa. Allyne thought she might want to

extend it. She wanted to confer and ask for Boykin’s advice.

Boykin explained that the remainder going to Phillips

Academy would not be zero, and would probably be

somewhere between three and ten million dollars. Allyne

responded, “Oh, that’s a lot of dough right there.” She

decided that they would have to give some consideration to

the distribution, but at present she would leave it as it was

written. Before Allyne signed the documents, Boykin asked

if she had an opportunity to review them that morning and

previously. She said that she did. Boykin asked, “And we

had discussion about [Urick-Stasa’s] distribution at age 35?”

11

Allyne said they had. Boykin asked, “And you are now okay

with that; correct?” Allyne answered, “Yes. At the present

time. Yes.” Allyne signed the documents.

Reply and Trial Court Ruling

Dana, in her capacity as trustee, filed a reply. She

filed a notice of joinder in her individual capacity. Willis

opposed the joinder motion. A hearing was held on

September 19, 2016. The court denied the joinder motion

and took the matter under submission.

On September 28, 2016, the trial court issued a minute

order granting the anti-SLAPP motion. The court found the

disinheritance petition arose out of protected litigation

activity. The court further found that Willis had failed to

show a probability of prevailing because Dana’s petition was

brought in her capacity as trustee. It was not a direct

contest because she brought it on the grounds of mistake and

misrepresentation, not duress, fraud, or undue influence.

The trial court granted the motion to strike and awarded

attorney fees to Dana. Willis filed a timely notice of appeal

from the order granting the motion to strike. On November

18, 2016, the trial court awarded attorney fees to Dana of

$24,795.00 and costs of $83.50.

12

DISCUSSION

Anti-SLAPP Statute and Standard of Review

“Courts construe the anti-SLAPP statute broadly to

protect the constitutional rights of petition and free speech.”

(Anderson v. Geist (2015) 236 Cal.App.4th 79, 84.)

“Resolution of an anti-SLAPP motion involves two steps.”

(Baral v. Schnitt (2016) 1 Cal.5th 376, 384 (Baral).) In the

first step, the moving party must establish that the claim at

issue arises from free speech or petitioning activity protected

by section 425.16. (Ibid.) Under section 425.16, an “‘act in

furtherance of a person’s right of petition or free speech

under the United States or California Constitution in

connection with a public issue’ includes: (1) any written or

oral statement or writing made before a legislative,

executive, or judicial proceeding, or any other official

proceeding authorized by law, (2) any written or oral

statement or writing made in connection with an issue under

consideration or review by a legislative, executive, or judicial

body, or any other official proceeding authorized by law, (3)

any written or oral statement or writing made in a place

open to the public or a public forum in connection with an

issue of public interest, or (4) any other conduct in

furtherance of the exercise of the constitutional right of

petition or the constitutional right of free speech in

connection with a public issue or an issue of public interest.”

(Code Civ. Proc., § 425.16, subd. (e).)

13

If the moving party establishes that the claim arises

from protected activity, the burden shifts to the opposing

party to demonstrate a probability of prevailing on the

merits. (Baral, supra, 1 Cal.5th at p. 384.) The second step

has been compared to a “summary-judgment-like procedure.”

(Taus v. Loftus (2007) 40 Cal.4th 683, 714; Baral, supra, 1

Cal.5th at p. 384.) “The court does not weigh evidence or

resolve conflicting factual claims. Its inquiry is limited to

whether the plaintiff has stated a legally sufficient claim and

made a prima facie showing sufficient to sustain a favorable

judgment. It accepts the plaintiff’s evidence as true, and

evaluates the defendant’s showing only to determine if it

defeats the plaintiff’s claim as a matter of law. [Citation.]

‘[C]laims with the requisite minimal merit may proceed.’

[Citation.]” (Baral, supra, at pp.384–385.)

We review an order granting or denying an antiSLAPP

motion de novo. (Park v. Board of Trustees of

California State University (2017) 2 Cal.5th 1057, 1067.)

“‘We exercise our independent judgment to determine not

only whether the anti-SLAPP statute applies, but whether

the complainant has established a reasonable probability of

prevailing on the merits. [Citation.]’ [Citation.]” (Greco v.

Greco (2016) 2 Cal.App.5th 810, 820 (Greco).)

No Contest Clauses

A “no contest clause” is “a provision in an otherwise

valid instrument that, if enforced, would penalize a

14

beneficiary for filing a pleading in any court.” (Prob. Code,

§ 21310, subd. (c).)3

“A no contest clause ‘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.’ [Citation.]

‘The purpose of no contest clauses “is to discourage will

contests by imposing a penalty of forfeiture against

beneficiaries who challenge the will.”’ [Citation.] ‘In

essence, a no contest clause conditions a beneficiary’s right

to take the share provided to that beneficiary under such an

instrument upon the beneficiary’s agreement to acquiesce to

the terms of the instrument. [Citation.]’ . . . [Citation.]”

(Betts v. City National Bank (2007) 156 Cal.App.4th 222,

231, fn. omitted.)

“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. [Citation.] [¶] In tension with these public

policy interests are the policy interests of avoiding

forfeitures and promoting full access of the courts to all



3 “‘Pleading’ means a petition, complaint, crosscomplaint,

objection, answer, response, or claim.” (Prob.

Code, § 21310, subd. (d).)

15

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.’ [Citation.]” (Donkin v.

Donkin (2013) 58 Cal.4th 412, 422 (Donkin).)

The California Law Revision Commission, after

studying the no contest law, issued a report in 2008

recommending retention of the statute with significant

revisions. (Recommendation: Revision of No Contest Clause

Statute (Jan. 2008) 37 Cal. Law Revision Com. Rep. (2007)

pp. 359, 391–399 (Revision Rep.).) “According to the

Commission, no contest clauses are still supported 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. (Revision Rep., supra, at pp. 364–366.)”

(Donkin, supra, 58 Cal.4th at pp. 424–425.)

“The Commission acknowledged, however, that other

public policy concerns ‘can trump a transferor’s intention to

create a no contest clause.’ (Revision Rep., supra, 37 Cal.

Law Revision Com. Rep. at p. 369.) 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.’

(Ibid.) The Commission stated that a no contest clause

16

should be applied conservatively to avoid a forfeiture that is

not intended by the transferor. (Id., at pp. 369–370.) The

Commission agreed that judicial proceedings may be

necessary to determine a transferor’s intentions. (Id., at pp.

370–372.) And it emphasized that important public policy

interests support judicial supervision of an executor, trustee,

or other fiduciary. (Id., at p. 372.)” (Donkin, supra, 58

Cal.4th at p. 425.)

To resolve uncertainty, the Commission recommended

simplifying the statute by defining the types of contests

narrowly. (Donkin, supra, 58 Cal.4th at p. 425.) “‘A

beneficiary should not be punished for bringing an action to

ensure the proper interpretation, reformation, or

administration of an estate plan. Such actions serve the

public policy of facilitating the fair and efficient

administration of estates and help to effectuate the

transferor’s intentions . . . . [¶] The proposed law would

merely extend that principle to its logical end . . . .’

([Revision Rep., supra, 37 Cal. Law Revision Com. Rep.] at p.

395.)” (Id. at p. 426.) The Legislature repealed and replaced

the statutes governing no contest clauses based on the

recommendations of 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; Donkin,

supra, at pp. 426–427.)

17

Under the current law, a no contest clause will only be

enforced against a pleading that challenges certain property

transfers, a creditor’s claim, or “a direct contest that is

brought without probable cause.” (Prob. Code, § 21311,

subd. (a)(1).)4 A “direct contest” is a contest that alleges one

or more terms of a protected instrument are invalid based on

a ground listed in Probate Code section 21310, including

“[m]enace, duress, fraud, or undue influence.” (Id., § 21310,

subd. (b)(4).) “For the purposes of this section, probable

cause exists if, at the time of filing a contest, the facts known



4 Probate Code section 21311 provides in full, “(a) 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 shall only be

enforced under this paragraph if the no contest clause

expressly provides for that application.

(b) For the purposes of this section, probable cause

exists if, at the time of filing a contest, the facts known to

the contestant would cause a reasonable person to believe

that there is a reasonable likelihood that the requested relief

will be granted after an opportunity for further investigation

or discovery.”

18

to the contestant would cause a reasonable person to believe

that there is a reasonable likelihood that the requested relief

will be granted after an opportunity for further investigation

or discovery.” (Id., § 21311, subd. (b).)

Protected Activity

Willis contends the anti-SLAPP statute should not be

applied to a petition to enforce a no contest clause. His

argument is not unreasonable, but it ultimately fails, as we

cannot disregard the plain language of the anti-SLAPP

statute.

A cause of action arises from a protected activity under

the anti-SLAPP statute if it arises from “any written or oral

statement or writing made before a . . . judicial proceeding.”

(Code Civ. Proc., § 425.16, subd. (e)(1).) A “contest” is “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.” (Prob. Code, § 21310, subd. (a).)

Willis’s petition alleging a violation of the no contest clause

arises from a pleading filed with the probate court and

therefore is subject to the anti-SLAPP statute.

Willis contends applying the anti-SLAPP statute in

proceedings to enforce no contest clauses encourages

litigation and discord between beneficiaries and increases

litigation costs, contrary to the policies behind the no contest

provisions and the intent of testators. Willis also notes that

specific rules unique to the Probate Code should control over

19

general provisions of the Code of Civil Procedure. “The

general rules of the Code of Civil Procedure do not apply

when the Probate Code provides special rules. In the

absence of a special rule, the general rules of practice apply

to matters of procedure in the probate court. . . . [¶] Those

cases which have held provisions of the Code of Civil

Procedure inapplicable in probate proceedings involve

provisions of the Code of Civil Procedure which are

inconsistent with specific provisions of the Probate Code.

(See, e.g., Estate of Neilson[(1962)] 57 Cal.2d 733; Code Civ.

Proc., § 1033 inconsistent with Prob. Code, § 1232); Estate of

Wallace (1977) 74 Cal.App.3d 196, 201; Code Civ. Proc.,

§ 1003 inconsistent with Prob. Code, § 1233.)” (Swaithes v.

Superior Court (1989) 212 Cal.App.3d 1082, 1088–1089.)

We conclude that although the policies underlying the

no contest provisions have been carefully balanced by the

Legislature and the anti-SLAPP procedures may impede

some of those goals, including increasing litigation costs and

potential delay, no provision of the Probate Code has been

shown to be inconsistent with the anti-SLAPP provisions.

The language of the anti-SLAPP statute is clear and

unambiguous, and it has been applied to other probate court

petitions. (Greco, supra, 2 Cal.App.5th at pp. 823–826 [antiSLAPP

statute applied to a claim for constructive fraud, but

trustee’s use of trust funds to pursue litigation against

beneficiaries was not a protected activity].) There may be

valid reasons to exempt enforcement of no contest clauses

from the anti-SLAPP statute, but if so, it is for the

20

Legislature to create an exception. (See generally Cassel v.

Superior Court (2011) 51 Cal.4th 113, 136 [“We express no

view about whether the statutory language, thus applied,

ideally balances the competing concerns or represents the

soundest public policy. Such is not our responsibility or our

province. We simply conclude, as a matter of statutory

construction, that application of the statutes’ plain terms to

the circumstances of this case does not produce absurd

results that are clearly contrary to the Legislature’s

intent.”].) The trial court properly found that Dana’s

reformation petition was a protected activity under the antiSLAPP

statute.

Probability of Prevailing on Merits

Willis contends the anti-SLAPP motion should have

been denied because he established a reasonable probability

of prevailing on the merits. We agree.

A. Filing as a Beneficiary

A contest is a pleading filed with the court by a

beneficiary. Willis contends there is ample evidence to meet

his burden to establish that Dana filed the reformation

petition as a beneficiary of the trust. We agree.

The petition identified Dana as trustee only once in the

opening sentence, while every other reference to Dana, and

the petition as a whole, was consistent with her interest as a

21

beneficiary. The attorney caption and the attorney

signature block stated that the attorneys represented Dana,

without identifying her as trustee. Dana signed a

verification of the reformation petition which did not state

that she was filing as trustee. The petition alleged that

under Civil Code section 3399, a written instrument could be

reformed based on the application of an aggrieved party.

Dana was aggrieved as a beneficiary, not as a trustee. The

goal of the petition was to disinherit Willis and substantially

reduce any potential gift to Phillips Academy, making the

distribution of assets far more lucrative for Dana and her

son. The petition was consistent with the interests of Dana

as a beneficiary, not with her fiduciary duties as a trustee to

the beneficiaries, including Willis and Phillips Academy,

whose interests would be impaired or eliminated by the

reformation petition. Viewing the evidence in the light most

favorable to Willis, he made a prima facie showing that

Dana filed the reformation petition in her capacity as a

beneficiary, or in her dual capacity as trustee and

beneficiary.

Dana’s evidence, although conflicting, did not defeat

Willis’s claim as a matter of law. Dana noted that she was

not required to file the reformation petition as an aggrieved

party under Civil Code section 3399, because she had

standing to file it as trustee under Probate Code section

17200. Dana invoked Civil Code section 3399 in her petition,

however, which was evidence that she filed the petition as a

beneficiary. We also note that both trustees and

22

beneficiaries may petition the probate court under Probate

Code section 17200, so the statute does not definitively

support one interpretation over the other.

B. Grounds for Direct Contest

Willis contends he made a prima facie showing that the

reformation petition constituted a direct contest on the

ground of fraud. This is correct. There is sufficient evidence

to conclude that one of the grounds for the reformation

petition was fraud.

“‘The elements of fraud, which give rise to the tort

action for deceit, are (a) misrepresentation (false

representation, concealment, or nondisclosure); (b)

knowledge of falsity (or “scienter”); (c) intent to defraud, i.e.,

to induce reliance; (d) justifiable reliance; and (e) resulting

damage.’ [Citations.]” (Lazar v. Superior Court (1996) 12

Cal.4th 631, 638.)

The grounds for reformation alleged in the petition

included misrepresentation and nondisclosure. On the first

page of the petition, Dana alleged that the trust was not

drafted in accordance with Allyne’s intent and the terms of

the trust were misrepresented by the drafter. Dana later

alleged her belief that Boykin made a mistake, or “of his own

accord, Mr. Boykin had Allyne sign a document that did not

reflect her wishes with respect to the distributions upon her

death, the removal of her son as a beneficiary and trustee, or

the amount the named charity would ultimately get were

23

Dana and [Urick-Stasa] both deceased.” The petition alleged

that Boykin removed Willis as a trustee but not a

beneficiary, slipped it by Allyne, and had her sign the

restated trust. Boykin knew some of the provisions might

not work, but had Allyne sign the restated trust anyway,

knowing Allyne thought the trust was being distributed to

Dana and Urick-Stasa. These are allegations of

misrepresentations made by Boykin, knowing they were

false, with the intent that Allyne would rely on them. The

petition also alleges justifiable reliance, in that Allyne

believed she was being properly advised and the trust was

drafted as she had requested. The resulting damages

alleged were that the trust provisions did not reflect the true

intent of the trustor. Willis made a prima facie showing that

the grounds alleged in the reformation petition included

fraud in the form of misrepresentation and nondisclosure.

Dana contends the reformation petition was not a

direct contest because she did not seek to invalidate the

trust, but merely to reform the trust to reflect the trustor’s

intent. This is incorrect. A direct contest is a pleading that

alleges one or more terms of a protected instrument are

invalid based on a ground set forth in Probate Code section

21310. Dana’s reformation petition sought to invalidate the

terms providing distributions to Willis as a result of Boykin’s

misrepresentations or concealment. The effect of Dana’s

proposed action—to invalidate certain distributive provisions

of the trust on grounds enumerated in section 21310—

controls over the label that she gave to the remedy that she

24

sought. (See Civ. Code, § 3528 [“The law respects form less

than substance”].)

C. Probable Cause

Willis contends that Dana brought the reformation

petition without probable cause. We conclude Willis made a

prima facie showing that Dana did not have probable cause

to file the reformation petition.5

Allyne’s original trust provided after her death for an

annual income to her children for life and to her grandchild

in trust until age 35. She explained on videotape that she

did not want to leave her estate to her children outright.

Boykin explained the trust provisions to her on and off

camera. She wanted to consider the distribution age for her

grandson further, which she did, and she executed the trust

documents. Around the holidays in 2014, Allyne

disinherited her son by way of a handwritten amendment to

her trust. Boykin prepared two separate amendments to

disinherit Willis, but Allyne did not sign them. Instead, she

fully restated her trust more than a year later, superseding

her handwritten amendment and reinstating her son as a

beneficiary. The restated trust continued to be structured as



5 The trial court did not reach the issue of probable

cause. Because we review of the sufficiency of the showing

under the second prong of the anti-SLAPP analysis de novo,

we independently resolve the issue.

25

a charitable remainder annuity trust. Thus, the original

trust and the restated trust both specify Allyne’s intent to

provide interests to Dana, Willis, Urick-Stasa, and Phillips

Academy. Both trusts also provided for Urick-Stasa’s

interest to remain in trust for him until age 35.

Willis has demonstrated a reasonable probability of

prevailing on the issue of probable cause. Although Allyne

handwrote an amendment to remove him as a beneficiary,

she did not sign later amendments Boykin prepared to

disinherit him. Instead, Allyne chose to restate her trust in

full to supersede her handwritten amendment and expressly

reinstate Willis as a beneficiary. Dana had no other

evidence to support her claim that her mother intended

Dana and Urick-Stasa to be the sole beneficiaries of her

trust. Willis has sufficiently established at this stage of the

proceedings that a reasonable person would not believe,

based on the facts known to Dana, that there was a

reasonable likelihood that the trust would be reformed to

provide solely for Dana and her son.

Even if the handwritten amendment could be the basis

for a reasonable person to believe that after further

discovery the probate court was likely to eliminate Willis’s

interest, there were no facts in the record that would cause a

reasonable person to believe the probate court would reform

Phillips Academy’s interest as the remainder beneficiary.

Allyne twice signed trust instruments that provided a

substantial remainder to Phillips Academy. There is no

evidence that she intended to make an outright gift to Dana

26

and Urick-Stasa in 10 years, with a much smaller contingent

gift to Phillips Academy in the event of both their deaths.

Allyne wanted her grandson’s share held in trust for him

until age 35. Under the proposed reformation, Urick-Stasa’s

share would be distributed at age 18.

Dana contends that she had probable cause to file the

reformation petition because she had reason to believe the

relief would be granted after an opportunity for further

investigation or discovery. She contends the grounds for

reforming the trust will require further inquiry into Allyne’s

communications to determine whether the trust reflects

Allyne’s testamentary intent. At this stage, Dana has fallen

well short of establishing as a matter of law that she had a

reasonable basis to believe the relief she requested would be

granted based on the information available to her or after

further discovery. Willis presented evidence with the

minimal merit necessary to overcome the anti-SLAPP

motion.

Because the order granting the motion to strike must

be reversed, the order awarding attorney fees must be

reversed as well.

The order granting the motion to strike and the order awarding attorney fees are reversed. The probate court is directed to enter a new and different order denying the motion to strike. Appellant Willis E. Urick, III is awarded his costs on appeal.