ashley's objection.003

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RESPONDENT JOYCE M. ASHLEY’S RESPONSE TO PETITION

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RUTH C. ROSE, Esq. SBN 145887433 North Camden Drive, Suite 600Beverly Hills, California, 90210Phone #: (323) 458-3107Fax#: (888) 649-1720

Attorney for Respondent

Joyce M. Ashley

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

In Re:REVOCABLE TRUST OF BERTRAMTAYOR, SR. AND EULALIA V. TAYLOR.

Deceased

_____________________________________PATRICIA A. TAYLOR, BERTRAM TAYLOR, Jr and MARGARET WHITE

Petitioners,

vs.

JOYCE M. ASHLEY,

Respondent

)))))))))))))))))))

Case No.: RIP 1400173

RESPONDENT JOYCE M. ASHLEY RESPONSE TO PETITION

[Prob. Code §§ 8500, 8502]

Petitioner seeks to have this court suspend the powers of Respondent as trustee,

pending an investigation, because the Respondent breached her fiduciary duty to the trust

by having an improper conflict of interest pursuant to PC Section 16004, failure to preserve

trust property pursuant to PC Section 16006 and failure to provide information to the

beneficiaries pursuant to PC section 16060.

For return and answer to the petition filed for her removal and for suspension of her

powers, personal representative of the estate of BERTRAM TAYLOR, SR. and EULALIA

V. TAYLOR deceased, denies, and alleges:

I.

tel:(323)%20458-3107

tel:(888)%20649-1720

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STATEMENT OF FACTS

While Petitioners statement of facts reflects certain true facts, those that they assert as

ground for this petition is not accurate.

Respondent Joyce Ashley and Patricia A. Taylor, Bertram Taylor, JR. and Margaret

White are the serving children of Bertram Taylor, Sr. and EulaLia V. Taylor.

Petitioners ware named as three of the four successor co-trustees and beneficiaries

of The Bertram Taylor, Sr. And Eulalia V. Taylor Revocable Trust, Dated January 08, 1998

(hereinafter, "The 1998 Trust") . A copy of The 1998 Trust is attached as Exhibit A.

Respondent, JOYCE M. ASHLEY, is also a child of BERTRAM TAYLOR,

SR. and EULALIA V. TAYLOR and was also named as the fourth beneficiary of The 1998

Trust.

EULALIA V. TAYLOR died during July 3, 2013. On August 22, 2013, a

restatement of The Trust (hereinafter, "the 2013 Trust") was signed by BERTRAM

TAYLOR, SR. A copy of the 2013 Trust is attached as Exhibit B.

Concurrent with the 2013 Trust, the decedent executed a Last Will and Testament.

A copy of said Will is attached as Exhibit C.

In the last will and testament of Bertram Taylor, Sr., the Decedent attest to being of

sound and disposing mind and memory and not acting under the fraud, duress, menace or undue

influence, in the “First Clause “ of the will Decedent expressly revoked any and all other wills

and deicide to wills executed by him.

BERTRAM TAYLOR, SR died September 25, 2013. At the time of his death, he

was a resident of the city and county of Riverside, California.

Each of the Petitioners was heirs at law and beneficiaries of the estate of the

deceased, in the1998 Trust. The terms of the 2013 Trust indicate three changes: (1)

Decedent's residence located at 200 E. Alessandro Blvd. #28, Riverside, CA. is to be

distributed solely to Respondent; (2) Decedent's rental property located at 203 E. 136th

Street, Los Angeles, CA is to be distributed to Respondent's son; and (3) Respondent is to

serve alone as the first successor trustee.

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Respondent contend that Global Estate Services, Inc. prepared the 2013 Trust and the

Decedent was present and that all provision of the 2013 trust was discussed with decedent by the

trust preparer before Decedent signed the 2013 Trust. That Decedent understood the provision

of the 2013 Trust;

The Decedent did not suffer a stroke 10 years ago as claimed by Petitioner and did not

suffer from Parkinson Diseased at the time he executed the 2013 Will and the 2013 Trust.

Respondent distributed to all beneficiaries as to the provisions of the 2013 trust per

decedent's wishes

Petitioners do not have standing to bring this petition because no petitioner will

benefit by a judicial determination that the 2013 trust is valid, thereby causing decedent's

assets to be distributed pursuant to the terms of thereof.

Respondent requests this court to hold valid the 2013 trust because at the time of

its execution, decedent was of sound mind and the 2013 trust was executed as a direct result

of Decedent’s free will.

During the month of October 2007 Decedents purchased a condominium in the city of

Riverside California. At that time they lived in a 4 bedroom 2 baths home that they owned,

and moved to the 2 bedroom 2 bath condominiums. There was considerable downsizing of

personal belongings. After the housing crash of 2008 the condo was underwater. Decedents

owed more money on the mortgage than the condo was worth. In the year 2010 harp became

available to home owners with mortgage underwater. It was not until 2012 that Decedents

could qualify for refinancing with the hope of lowering the interest rate from 6.1 to 4.39 it was

then that Decedents had a discussion about Respondent attaining power of attorney to help

navigate the loan process. At the time of Respondent mother’s death all of their assets were

frozen. Respondent parents had no life insurance. Respondent’s power of attorney duties

ceased. The seven years that Respondent parents lived in the condominium did Petitioners

request a key to the residence at 200 E. Alessandro blvd #28 there was never any request to

enter the home to either inventory assets or obtain personal property. Respondent never

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moved out of her home. She lived around the corner from the Decedents as did Petitioner

Margaret White. Respondent began to spend more time with Decedents as they aged.

It had been decided before Respondent mother’s death that she and

Respondent’s` father would not be attending their granddaughters wedding. Respondent

mother died on July 3 2013 the wedding was on the 5 of July.

There is a mortgage on the condo and the entire proceeds from the rent from the house

were deposited into the decedent’s bank account. From October 2007 the monthly payment on

the condo was $1497.15 and the Home Owner’s Association $238 a month. After the

refinancing of the condo the monthly payment on the condo was 1245.17 and the Home

Owner’s Association was 261 a month. Respondent parents left 187,000.00 in a trust amount

which were divided equally among the Petitioners.

Petitioners knew when they signed this petition on 1192014 they had received all

proceeds due from our dad’s pension. As of 4202014, Respondent has continued to pay the

mortgage on and the Home Owner’s Association monthly fees on both properties, and car

which is parked in space inside the gated complex, the gardener, and the water bill. .

II.

DECEDENT HAD CAPACITY TO SIGN THE 2013 TRUST

Respondent deny petitioners’ allegation that decedent lacked capacity to sign the

2013 Trust and alleges:

Respondent restate that the 2013 Trust removed Petitioners as beneficiaries as

to the 200 E. Alessandro Blvd. #28, Riverside, California property and the 203 E.

136th St., Los Angles, California property only. That any and all other provision of the

2013 Trust that allows for distribution of decedent’s estate to the petitioner was

preformed. Petitioners’ argument throughout the petition seems rest on contentions

that the 2013 trust is invalid. However, they only asserted two allegations that address

the validity of the 2013 Trust. See Pgs. 8 and 9 of petition.

First, the petition alleges that the Decedent lacked capacity to sign the 2013

Trust, however, they have not made this allegation as to the 2013 Will. Petitioners

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argues that when the 2013 Trust was executed, decedent did not have sufficient mental

capacity to 1) understand the nature of descendant’s actions in executing the 2013

Trust, 2) understand and recollect the nature and situation of decedent’s property, or 3)

remember and understand decedent’s relations to decedent’s family member.

Petitioners have incorrectly assert three events to support their position, first, that

decedent, approximately 10 years ago suffered a stroke, second, that Decedent had Parkinson’s

disease, which left him unable to drive his car and that decedent’s memory was also extremely

weak, to the extent he did not know his family but only mentioned one individual he did not

remember.

Respondent contends that the Decedent has never suffered a stroke and that Decedent

has never been diagnoses with Parkinson’s disease.

In Andersen v. Hunt , 196 Cal. App. 4th 722 (2011) , the settlor ("Wayne") had established

a family trust with his first wife that named their children as sole remainder beneficiaries.

Wayne's wife died and Wayne developed a relationship with "Pauline." Wayne then had a

serious stroke. Thereafter Wayne amended his trust four times, changed the beneficiary

designations for his life insurance, and opened joint bank accounts with Pauline. These actions

resulted in providing Pauline with a majority of Wayne's estate upon Wayne's death. Wayne's

children then sought to invalidate the documents he had signed after his stroke, on the grounds

that he lacked the requisite mental capacity when he executed them.

The appellate court in Andersen did not apply the contractual capacity standard of

Section 812 to the trust amendments. The court held that a settlor’s capacity to execute a trust

instrument should be evaluated under the (lower) testamentary capacity standard of Section

6100.5 if the record establishes that the trust instrument was similar in its content and complexity

to a will or codicil. In this case, Wayne's trust amendments had merely changed the percentages

of the beneficiaries of his trust, by decreasing his children's share in favor of Pauline. Because of

the amendments' "simplicity and testamentary nature," the court found that the amendments were

"indistinguishable from a will or codicil."

http://www.lexis.com/research/xlink?app=00075&view=full&searchtype=get&search=196%20Cal.%20App.%204th%20722&ORIGINATION_CODE=00247

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In Andersen the court noted the well established principle that “old age or forgetfulness,

eccentricities or mental feebleness or confusion at various times of a party making a will are not

enough in themselves to warrant a holding that the testator lacked testamentary capacity. Estate

of Wynn (1966) 239 Cal. App.2d 369, 374, citing Estate of Sanderson (1959) 171 Cal. App.2d

651, 660.

III.

RESPONDENT DID NOT USE UNDUE INFLUENCE TO COERCE DECEDENT TO

SIGN THE 2013 TRUST

Respondent deny petitioners’ allegation that the 2013 Trust is the direct result of

undue influence and alleges Respondent neither transcribes the 2013 Will nor the 2013

Trust.

Petitioners have not asserted facts sufficient to support the allegation of undue influence.

Courts are on the whole reluctant to disturb the disposition of a will after the testator has died. At

least three reasons have been advanced supporting the sanctity of wills. First, the courts

recognize that an individual may dispose of his or her property as he or she sees fit, either

unjustly and unfairly or with justice or with fairness. Second, the central factual witness and

oftentimes only witness to the testator's intent are not available for trial -- he or she is dead.

Third, juries, if given the opportunity, would remake many wills according to their own

sense of a just distribution, which may not reflect the testator's actual wishes. Specifically, the

courts are concerned primarily with the mental state of the testator at the precise moment the will

was being signed. Undue influence must have been exerted at that moment. The effect of the

undue influence must have been to overpower the mind and the will of the testator at the time the

will was made. The undue influence must have been such that it in fact produced the disposition

of the will, thereby exclusively expressing the intent of the one exerting the influence. It must

also be established that the testator would not have made such a distribution of assets but for the

undue influence.

Petitioners points to two facts for this assertion, however none amount to the use of

undue influence. The petition alleges that respondent’s contact with the company which

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prepared the 1998 Trust to prepare the 2013 Trust amounted to undue influence in having

decedent sign the 2013 Trust.

The act of undue influence is rarely witnessed; therefore, the common situation is one

where undue influence is proven by circumstantial evidence. Courts require substantial evidence

to upset a testator's written will. Various lists of factors have been drawn in numerous cases. A

consensus of cases would list the following factors: (1) unnatural disposition, (2) opportunity to

exert the undue influence, (3) susceptibility, and (4) activity of beneficiaries in procuring the

will.

First, unnatural disposition is taken to mean that "strangers," that is, unrelated parties,

receive the benefits of the will to the exclusion of blood relations, or that one child receives the

bulk of the bequest while others of equally close relation receive little or nothing.

Second, opportunity means that relations existed between the chief beneficiaries and the

decedent that afforded the beneficiaries an opportunity to control the testamentary act.

Third, susceptibility means that the decedent's mental and/or physical condition was such

that it left him or her susceptible to the undue influence and domination of others.

Fourth, activity means that the chief beneficiaries were active in procuring the will,

isolating the testator from his or her family, or preventing the testator from obtaining

independent legal advice.

The combination of these four factors present at the same time has been found sufficient.

None of these factors alone is sufficient to support a finding of undue influence. For example,

mere opportunity to influence even when there is a motive is not sufficient for an inference that

such influence was in fact exerted. Proving the testator was particularly susceptible is almost

always necessary. In cases where undue influence has been found, the testator invariably has

suffered from a weakened physical condition or psychological vulnerability. This weakness or

vulnerability appears to be the foundation of further proof that there was improper persuasion or

activity that subverted the will of the testator.

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A common pattern in cases when undue influence is found is (a) a physically weak or

psychologically vulnerable testator together with (b) active participation in the procuring of a

will by the beneficiary and (c) unnatural profits by the beneficiary.

IV.

SUSPENSION OF TRUSTEE POWERS

Petitioner seeks to have this court suspend the powers of Respondent as trustee,

pending an investigation, because the Respondent breached her fiduciary duty to the trust

by having an improper conflict of interest pursuant to PC Section 16004, failure to preserve

trust property pursuant to PC Section 16006 and failure to provide information to the

beneficiaries pursuant to PC section 16060.

For return and answer to petition filed for her suspension of powers and to the

citation issued thereon, Joyce M. Ashley, personal representative of the estate of

BERTRAM TYALOR SR. AND EULALIA v. TAYLOR, deceased, denies and alleges:

Respondent denies that she has breached her fiduciary duty to the trust by having an

improper conflict of interest pursuant to PC Section 16004, failure to preserve trust property

pursuant to PC Section 16006 and failure to provide information to the beneficiaries

pursuant to PC section 16060.

Respondent specifically denies that she has dealt with the truest property for her own

profit or for any other purpose unconnected with the neither trust, nor have she taken in any

transaction in which the trustee has an interest adverse to any of the Petitioners.

Respondent contends as to the revocable trust she owed no duty to the beneficiaries

during the settler’s lifetime; Respondent’s lack of duty to beneficiaries during the settler’s

lifetime did not retroactively change after the settler’s death. The law provides that when an

individual creates a trust doing his or her lifetime, he or she reserves the right to revoke the

trust, or create an amendment to it, or revise a trust by restatement.

The settler under sound mind revised or amended the 1998 trust by the Restated 2013

Trust. Petitioner has not provided this court or respondent with evidence that the state of

mind of the settler was impaired that would support suspension of her trustee’s powers.

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This would be consistent with the principles provided for by Calif. Prob. Code Section

15800.

Calif. Prob. Code Section 15800 provides:

“Except to the extent that the trust instrument otherwise provides…, during the

lifetime that a trust is revocable and the person holding the power to revoke the trust is

competent:

“(a) The person holding the power to revoke and not the beneficiary, has the rights afforded

beneficiaries under this division,

“(b) The duties of the trustee are owed to the person holding the power to revoke.

The1998 revocable Trust provides in section 1.06 for the settler’s authority to create

a restatement of his revocable trust thus, the 2013 Trust is a valid instrument. What

Petitioners have failed to place in their petition is the fact that both, BERTRAM TAYLOR

SR. and EULALIA V. TAYLOR, on July 5, 2012, signed a General Power of Attorney that

document names Respondent as the attorney-in-fact. See Ex. D. The power of attorney grants

the attorney-in-fact the authority to act as the principal's agent with respect to all matters,

including the "authority for estate transactions and "all other matters

Eulalia V. Taylor died during July 3, 2013. Respondent alleges that thereafter at the

direction of Bertram Taylor Sr., she was to aid in having various documents prepared for

Bertram Taylor Sr.; this included the Affidavit of Death of Trustee of Eulalia V. Taylor; the

Affidavit of Death of Joint Tennant; the Last Will and Testament of BERTRAM TAYLOR

SR; and the 2013 Trust. The General Power of Attorney gave Respondent unlimited power

and authority to act on behalf and for BERTRAM TAYLOR SR, and respondent’s acts did

not breach any fiducially duties owed to the 1998 Trust or the 2013 Trust.

Here, Petitioners’ seeks to reinstate themselves as beneficiaries to the 1998 Trust by

having the 2013 Trust held void. As stated above respondent had no duty to Petitioners as

to the real property

Petitioner request in the petition for suspension of respondent’s trustee powers

should be denied. Petitioners have not demonstrated that the 2013 Trust is not valid.

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V.

POTENTIAL FOR LOSS OR INJURY TO TRUST PROPERTY

Respondent deny pet i t ioners’ al legat ion tha t she is removing trust assets

from the decedent's residence and either selling or otherwise disposing of the personal

property without either taking inventory or preserving the sale proceeds for the trust

beneficiaries.

Respondent d e n y p e t i t i o n e r s ’ a l l e g a t i o n t h a t s h e is collecting the rent

that is payable by the occupant of the trust's rental property located at 203 E. 136th Street,

Los Angeles, CA and not depositing the funds into the trust ban k account. The property

has been a rental property since 2007 and the monthly rent is approximately $1,200.There

is no mortgage on the property, so the entire rent proceeds were deposited into the

decedent's bank account, until his death.

Respondent reiterate that she owes no duty to petitioners as to the real property per the

2013 Trust.

VI.

BREACH OF DUTY OF LOYALTY

Petitioners allege that Respondent has breached her duty of loyalty. The petition offers

very little in the way of sufficient facts that could support this claim.

One of the ground offered to support this claim, is Respondent’s alleged arrangement “for

the 1998 Trust to be restated immediately after the death of the first settler and instructing the

drafter of the Trust to remove Petitioners’ from inheriting the real property of the Trust. (Id. pg.

11 of Pet.). Secondly, Petitioners seems to allege that Respondent breached duty of loyalty when

she did not follow the terms of the 1998 Trust and that Respondent utilized undue influence to

coerce the decedent to change the 1998 Trust. Petitioner have citied Estate of Gump (1991) 1

Cal.App.4th 582, 601, 2 Cal.Rptr.2d 269, in support of their argument, however, that case differs

from the issues presented in the instant matter.

In Gump, supra, Wells Forgo owed the beneficiaries a duty to administrate rental

property and to maintain property accounting. Gump is also distinguishable in that the main

https://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1991199133&pubNum=3484&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)


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issues involve dealt with attorney’s fees and fees associated with the trustee administration of the

rental property. Here in the instant case, Respondent owes no duty to the petitioners as to the

real property under the 2013 Trust. Respondent argues that duty of loyalty requires the

Petitioner to show that the Respondent occupied a position of trust or fiduciary relationship and

that the Respondent breached that duty to benefit personally.

“In construing trust instruments, as in the construction and interpretation of all

documents, the duty of the court is to first ascertain and then, if possible, give effect to the intent

of the maker.” ( Estate of Gump (1940) 16 Cal.2d 535, 548, 107 P.2d 17; see Ephraim v.

Metropolitan Trust Co. of Cal. (1946) 28 Cal.2d 824, 834, 172 P.2d 501 [“the primary rule in

construction of trusts is that the court must, if possible, ascertain and effectuate the intention of

the trustor or settler”]; Crook v. Contreras (2002) 95 Cal.App.4th 1194, 1205, 116 Cal.Rptr.2d

319[same].) “The interpretation of a written instrument, even though it involves what might

properly be called questions of fact [citation], is essentially a judicial function to be exercised

according to the generally accepted canons of interpretation so that the purposes of the

instrument may be given effect. [Citations.] Extrinsic evidence is admissible to interpret the

instrument, but not to give it a meaning to which it is not reasonably susceptible [citations], and

it is the instrument itself that must be given effect. [Citations.] It is therefore solely a judicial

function to interpret a written instrument unless the interpretation turns upon the credibility of

extrinsic evidence.... An appellate court is not bound by a construction of the contract based

solely upon the terms of the written instrument without the aid of evidence [citations], where

there is no conflict in the evidence [citations], or a determination has been made upon

incompetent evidence [citation]. [Citations.]” ( Parsons v. Bristol Development Co. (1965) 62

Cal.2d 861, 865–866, 44 Cal.Rptr. 767, 402 P.2d 839.)

Respondent argue that Petitioners by these allegation seeks to remove the decedent’s

authority to revoke the 1998 Trust. None of the Petitioners’ allegations support this petition for

suspension and or removal of Respondent as trustee.

VII.

BREACH OF DUTY BY USING TRUST PROPERTY FOR HER OWN BENEFIT








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Petitioners’ allegations as to this claim are unfounded and not supported by sufficient

facts. Petitioners contend that Respondent has breached her fiduciary duty as trustee to the trust

in violation of PC sections 16004.

Respondent reiterate that she owes no duty to petitioners as to the real property per the

2013 Trust. Petitioner has contested the 2013 Trust, but has failed to address the 2013 Will.

Moreover, this issue rests on the question of whether the 2013 Trust is held valid or invalid.

WHEREFORE, Respondent request:

1. The court denies the petition.

2. That court deny suspending the powers of Respondent

3. That the court finds that Respondent should not be removed as Trustee because of

provision of the 2013 as it relate to distribution of the estate have been carried out as to

all beneficiaries per the Decedent wishes.

4. That Petitioner bear the cost of attorney fees and court costs incurred by this action.

Dated this 23rd day of April 2014 _____________________________Joyce M. Ashley-Respondent

DECALRATION BY JOYCE M. ASHLEY

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I, JOYCE M. ASHLEY, hereby declare as follow:

1. That I am the Respondent in the above-entitle action.

2. That Global did the 2013 Trust where Decedent was present;

3. hat all provision of the 2013 trust was discussed with decedent by the trust preparer;

4. That Decedent understood the provision of the 2013 Trust;

5. That the Decedent did not suffer a stroke 10 years ago as claimed by Petitioner;

6. That Decedent did not Suffer from Parkinson Diseased;

7. That I have distributed to all beneficiaries as to the provisions of the 2013 trust per

decedent's wishes;

8. The amendment to the 1998 trust was due to the fact that the Riverside property was not

a part of the 1998 trust.

I, Joyce M. Ashley, declare under penalty of perjury that the foregoing is true and correct, so

executed on this _______ day of April 2014, in the city of Riverside, California.

______________________________________

Joyce M. Ashley-Respondent

VERIFICATION

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I, Joyce M. Ashley, am the Respondent in the above-entitled action. I have read the

foregoing Response and know the contents thereof. The same is true of my own knowledge,

except as to those matters which are therein alleged on information and belief, and as to those

matters, I believe it to be true.

I declare under penalty of perjury that the foregoing is true and correct and that this

declaration was executed at Riverside, California.

Dated: _____________ _________________________________

Joyce M. Ashley-Respondent

ashley's objection.003

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