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DONNA
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Jul-11-2011 1:58 pm
Case Number: PES-89-176268
Filing Date: Jul-11-2011 1:56
Juke Box: 001 Image: 03265749
PETITION FOR INSTRUCTIONS
EST. OF FRANCIS O'REILLY
001P03265749
Instructions:
Please place this sheet on top of the document to be scanned;10
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PHILIP A. GUNNING, SBN 66053
Attorney at Law
221 Caledonia St. 2" Floor
Sausalito, CA 94965 an Frente
415-324-5898 rancisco County Superior Count
JUL 1) zon
Attorney for Dwight Patrick Reilly, Trustee/Petitioner CLERK OF THE COURT
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SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO
In re the ESTATE OF CASE NO. PES 89 176268
FRANCIS O’REILLY
PETITION FOR INSTRUCTIONS & TO
CONSTRUE TRUST INSTRUMENT
(Probate Code Secs. 17200(1), (4) &
(6)
DATE: AUG 15 2011
TIME: 0830 AM
DEPT: _Probate——
: ROBATE DEPARTMENT |
ROOM: . 9:00 A.M... RM. 204
Petitioner, DWIGHT PATRICK REILLY, Trustee of the Francis O’Reilly testamentary
wee ee Ow
trust, who in secking the guidance and instructions of this Court pursuant to Probate Code
Sections 17200 (1), (4) & (6) alleges as follows:
1. Petitioner’s status: Petitioner is the Trustee of the Francis O’Reilly (hereinafter|
the "Testator”) testamentary trust, having been so appointed by this court on 28 February 2001.
Petitioner, as an individual, is the Trust’s sole income beneficiary for his lifetime. There is no
successor income beneficiary named in the Trust.
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Petition for Instructions and to construe trust instrument.10
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2. Jurisdiction: This Trust was created in 1966 upon the death of the Testator and
is subject to the court’s continuing supervision pursuant to Probate Code Section 17300 ct seq.
3. Exhibit Attached: Attached hereto as Exhibit "A", and incorporated herein by
reference, is a true copy of the Testator's "Last Will and Testament " executed on 23
March 1966. Following the Testator’s death his property was distributed according to the terms
of the Will to the then-trustee on or about 13 March 1967
4. Trust Principal: Following the sale of the trust real property as
approved by the Court in 2005, the Trustee acquired a replacement property to take advantage of
the provisions of Sec. 1031 of the Internal Revenue Code. Said replacement property was
located at 25 Brookline, Aliso Viejo, California, APN 623-13303. This property was the Trust’ s|
primary asset until it was sold in June, 2011 for approximately $1,600,000. The Net Sale
proceeds of the sale were $748,858.00. These net sale proceeds are the current principal of the
trust.
5. Issues for the Court to Address: In pertinent part, the Will/Trust provides:
"Should my nephew, Dwight O'Reilly (sic), die without issue surviving him, then and in that
event, this trust shall terminate and my trustee shall pay over the entire remaining corpus thereof
to my nephew, Francis O'Reilly, of Moughrea County, Ireland. (Exhibit "A", Pg. 2).
Thus, the interest of Francis O'Reilly was contingent upon Dwight Patrick Reilly dying before
him.
Jn December 2010, the Trustee was informed via Richard Wise, Esq. that Francis O'Reill:
had died. (The Trustee has requested a copy of the Death Certificate from Mr. Wise, but has yet
to receive it.) Dwight Patrick Reilly remains alive.
The Will/Trust is silent as to what happens to the trust principal if Francis O'Reilly
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were to predecease Dwight Patrick Reilly, which apparently he has done.
The issue of Francis O'Reilly (consisting of his six adult children who are the
great-nieces and nephews of the testator) think they know the answer to this question. They
charged into the breach and asserted, via counsel, that they are now the trust's principal
beneficiaries.
The Trustee disagrees because the contingency (the death of Dwight Patrick Reilly
before Francis O'Reilly) upon which Francis O'Reilly's right to the trust principal depended
was not met.
The Trustee/Petitioner’s first question for the Court to address is: Since the gift of trust
principal to Francis O'Reilly has clearly failed, who is or will become entitled to the Trust's
principal upon the death of Dwight Patrick Reilly without issue?
6. The second question for the court to address is this: Paragraph "Sixth" of the
O'Reilly Will provides: "I hereby generally and expressly disinherit any and all persons
whomsoever claiming to be and who may be my heirs at law, except as such may be determined
by this will, and if any such parties or such heirs, or any person whomsoever who, if I died
intestate, would be entitled to any part of my estate, shall either directly, single(sic), or in
conjunction with any other person or persons, seek or establish or assert any claim to my estate,
or any part thereof, excepting under this will, or impair, invalidate or set aside the provisions, or
endeavor to secure or procure any part of my estate, other than through or under this will, then in
any or all of the above mentioned cases and events, I hereby give and bequeath to said person the|
sum of one dollar ($1.00) and no more in lieu of any other share or interest in my estate”.
Although they have filed no formal action or contest to date, the issue of Francis O'Reilly
are asserting a claim upon the testator's estate and claiming rights as "beneficiaries". They have
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Patition for Instructions and to construe trust instrument.10
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appeared in this proceeding through their attorney, Richard Wise. Although remotely related to
the testator, none of these claimants was named as a beneficiary in his Will, expressly or by
category (e.g. as "issue" or "children" or “kin” of the testator). At most, these individuals were
remote and excluded "heirs" of precisely the type at which the no-contest clause was directed.
The only basis for their claim upon the O'Reilly estate is that their now-dead father, the
testator's nephew, would have been the trust's principal beneficiary if he survived Dwight
Pairick Reilly.
Thus, the question is: Does the assertion by the O'Reilly issue that they are now the
beneficiaries of the trust principal constitute a contest of the Will/Trust and, as such, run afoul off
the No-Contest clause contained in said Will?
The Trustee believes that it does, that the clause is valid and should be applied to bar the
claimants from any recovery under the Will of Francis O'Reilly except for the $1.00 each
provided for in the clause.
7. The third question for the court is this: Who is the trust's principal beneficiary if
the issue of the recently deceased Francis O'Reilly are not?
It is the trustee's belief that the absence of a cognizable trust principal beneficiary requireg
the Court to determine who, among the heirs at law, is or will be entitled to the trust principal
upon the death of Dwight Patrick Reilly.
The trustee believes that the law requires that the court apply the intestacy statutes in
effect as of the date of the Testator’s death (i.e. 1966) to determine to whom the principal will
ultimately be distributed.
7. Notice of Petition: | The only person clearly entitled to Notice of this Petition
is Richard Wise, Attorney at Law, who, as counsel for Francis O'Reilly filed a Request for
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Special Notice in this matter. However, Notice of this Petition has also been served on by mail
on the issue of Francis O'Reilly, as aspiring but disputed beneficiaries, at addresses provided by
Mr. Wise. Thus, Notices of this Petition have been mail served as follows:
1 Richard H. Wise, Esq. 220 Montgomery Street, Suite 965, San Francisco,
CA 94104.
2. Michael O'Reilly
Cloghoge, Swanlinber, Co. Cavan, Ireland.
3. Francis O'Reilly
Hawood, Swanlinber, Co. Cavan, Ireland.
4, Margaret Scully Pallas
Beaufort, Killarney, Co. Kerry, Ireland
5. Rosie McManus
Main Street
Swanlinbar, Co. Cavan, Ireland
6. Anita Fitzpatrick
89 Campbelle
Gordon Way Parkside
Dollis Hill N. W. 2 6RW
London, UK
7. Pauric O'Reilly
Mullinaherb
Derrylin
Co. Fermahagh, Northern Ireland
Wherefore Petitioner requests the following:
1. That the Court review the Will/Trust here in issue and determine that the
issue of Francis O'Reilly did not and could not succeed to their deceased father's “right " or
"interest" because the contingency upon which his "right" or "interest" depended was not met and
thus there is nothing for them to succeed to.
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2. That the Court rule that the claim asserted by the O'Reilly issue that they,
collectively and individually, are “principal beneficiaries" runs afoul of the no-contest clause in
said Will and, as such, they are disinherited except to the extent of $1.00 cach.
3. For such other and further relief as to the Court seems warranted.
Dated: COX. le
Petitioner
VERIFICATION
Lam the Petitioner in this proceeding and have read the foregoing Petition and know the
contents thereof. The same is true of my own personal knowledge, except as to those matters that}
are stated on information and belief, and, as to those matters, I believe them to be true.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Dated; 7 P- 14
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Executed at Liu Paces Ce
ILLY, Trustee ~
Jarl
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Petition for Instructions and to construe trust instrument.PROM: Fay H Blair Accte:
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LAST ULLL AND TESTAMENT
-G7-
FRAKSIS O'RETLLY
Featcts vy sei
L, FRANCIS O'REILLY, baLag of sound and disposing mind and
mamory, and not acting undaz say manece, duress, fraud or undue
influence, do hereby make, puvlish and declare che following to be
my Lest Will and Tescamenc:
PIRST: L aereby revoke all wills and codicils heretofore
made by me.
SECOD: %I hereby decicra that I am a single man and have 90
I hereby give, devise and bequeath all of ay estate,
both real’ and personal, of every kind, character and description
and wharasoever situated, together with all property over which
I may Seve @ power of testamentary disposition at the time of ay
‘death pursuant co power of aspoincaest, and which I have noc
ochezws.2 disposed of (ali of which property io whatever fora
ic msy take at any Cime, is hereinafter sometimes referred to as
the Trust Escace"), unts the trustee hereinafter oamed, IX TRUST,
HOwavin, for cha following uses end purposes:
1. he crustee shall hold, manage, invest and deai wich
ths trusc estate as herein authorized and directed,
ccect and receive the income darived therefrom, pay all
eor:8, texes, charges and other expenses ineideocal to,
or jrowing out of, the trusr as hereinafter provided, and
shall pay all of | the net incom: dexived from the crust
astacte to my grandniaca, CERALDINE ANNE McGOVERN, for
che duration of her life.
Os the death of my said grandoiece, GERALDINE ...NE
MeGL7ERN, with issue or the survivors of predeceased
issue then chis trust shail terminate and the trustee
Shall pay over the entire remsining corpus to the issue
yeReceived:
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ox survivors of predeceased issue of said G=RALDINE
&E MeGOVERN per stixzpcs and noc per capita.
Should ay grandniece, GStALDINE ANNE McGOVERN, die
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withouc any issue surviving her thea, and in that event,
said nat income shall be payable to ay nephew, DWIGHT Cc
O'REILLY, for che duracion of his Life,
SF tha destn of my said nephew, DWICKT O'REILLY,
with issue or the survivors of predeceased issue, chen
this trust shall terminate and che trustee shall pay
ovar the entire remaining corpus to che issue or
survivora of predeceasad iasue of DWIGHT O'REILLY per
stirpes and not per capita.
- Should my oephew, DWIGHT O'REILLY, die wichout issue
surviving aim, then and in that event, this trust shall
terminate and my trustee shall pay over the encire
xemaining corpus thereof to ay nephew, FRANCIS O'REILLY,
of Moughrea County, Cavin, Ireland.
2. Tha trustee of cha trust herein created and provided
for shall have all of the powers generally conferred upon
cxusteas by Law and, in addition thereto, shall have che
following authoricias and powers:
4. To cake charge of the trust property aod to
hold, manage, operate, maiocain and control the
sema; to invest aod reinvest and keap the same
Lavested in such manner and in auch property,
whether real or personal, as aay seem advisable, all
without legal resexictiona otherwise applicable
fo trustees; to retain and contique to bold
indefinitely all or any part of che property
“nm the sama form as received or acquired, regardless
of whecher che sama is productive of income or
whather the trustee would hava purchased the sane
a3 trustee, without being under any duty either
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co eoivere or Giversicy che sate; to hold moneys
im sucn interesc-ooaring or non-interesc-bearing
bank sccouncs in such amouncs and for such periods
of time a6 the truscee shall deem proper, without
being liable for eny loss of iocome co the trust
estate,
b. To worrow money, with or without securicy;
co sell, convey, lease, sorcgage, pledge,
hypothecate, exchange, insure, improve, alter ox
repair any part or all of che trusce estate; to
create estates in, aake conveyances, grant options,
easements, ofl, gas and mineral rights, of all
or amy part of ‘the trust estace for periods continuing
beyond the life of che crust or for lesser periods
of tine; to partirion and agree for the partition
of any property in which the crustees hold any
iotereac and te tostituce aod prosecute actions for
such partition and to compromise the. same; to bid act
v any paxtition sales for and on behalf of the trust
and use cash or other property held by thea hereunder
flor the purpose of purchasing property at paxtition
sales; to make, execute and deliver any and all
deeds, comvayances, leases, transfers, bills of
sale, notes, mortgages, pledges, assignments,
hypothecatioss, agreements, consenrs, documents aod other
writings necessary ox proper for the purpose of exercising
any of che powers possessed by the trustee; aod
4anerally co exercise with respect Co any aod all
of che trust property all rights, powers aod
privileges as ara or may be lawfully exercised by
any person owning Similar property in his own right,
all ac such times and upon such terms and conditions
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FAX NO. : Nov. 17 2808 85:00PM P38
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FROM: Fay H Blair Acctcy Corp
of trust
Sal ceubetei quuseiton
( accovacing and co ellceste ta or 3pporcion between principal
and income as he in his ubsoluce discrecion shall deea
jusc, all receipts and disbursements of money or property,
except that the crestea shall not amortize premiums
paid for securities or take any account of discounts,
and shall creat as principal all scock dividends,
liquidating dividends, proceeds of sale or other
liquidation of rights to subscribe for stock or other
securities, and gains realized on the sale or other
. Liquidacion of capital assets, and shall treat as
income all ocher cash dividends, both ordinary and
extraordinary.
g- To employ such agents, attorneys, auditors,
bookkeepers and other persons as in his judgment are
reasonably nacessary for the proper mansgemenc and
protection of tha trust estate or maintenance of proper
accounts and records.
h. To require the appointment of a legal guardian
t for any minor distributee if he shall doom it desirable
for any reason; oz to pay or distribute income or
principal to any minoz entitled thereto or to use and
iz fox the benefit of such minor, without the
apply iz é
appointment of a legal guardian, and in any such event
the trustee shall be fully protected by the receipt of
such minor, or the persons conferring such banefit.
3. ‘ha payments of net income or principal to the bene-
fichary hereunder shall be free and forever discharged of
and from all debts, contracts, obligations and engagements
of such beneficiary, and she shall be wichout power to charge,
encumber, anticipate or assign the sam@ ox any part thereof,
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. " a om "ys
° ‘at rare
\ and geet net sovur Wet purebred aid owedy pact weewot
gnall not b2 subject to attachment ox Levy or be taken in
execution of any legal process whatever dasued against her
and the payment by the Crustee of such net income or
principal, oz both, to the person encircled thereco or che
application by che trustee of all or any part of such net
income or principai, or both, to the person entitled thereto
or the application by the trustee of all or any part of
such income or principal, or both, for the use and benefit
of such beneficiary pursuant to the provisions of this
will ghall be a good and sufficient discharge of the trustee
with respect to each such payment Or application. In che
event thas the benafieiary who is entitled to receive any
income hereunder shail charge, encumber, anticipate or assign
guch income or her right to receive the game or. shall attempt
to make any such charge, encumbrance, anticipation or assign-
ment, ox 1£ such income shall be attached, levied upon, or
teken, transferred ox assigned by force of any writ or process
¥ af law ot by. the operation of law, then upon receipe by che
trustee of notice thereof from any person, che right of
such beneficiary to ceceive such income shall terminate.
4. No purchaser from or other person dealing with che
trustee shall be under any duty or responsibility -o Look
to the application of any purchese money or other money paid,
loaned or transferred co the trustee.
’ §, desire my trustee to employ my gxandniece, GERALDINE
ANNE MCGOVERN, as the resident manager of my apartmencs
at 421-435 Buans Vieta Fast, San Francisco, California,
empowering her to coliect rents and make disbursemants and
monthly reports to my trustee.
“RTH: T nominate and appoint BANK OF AMERICA NATIONAL TRUST
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FAX NO. =
of
AND SAVINGS ASSOCIATION, as crustee under che crusc created by
this will.
ELFTH: I nominate and sepoine BANK OF AMERICA NATIONAL
TRUST AHD SAVINGS ASSOCIATION, as ay executor with full power co
buy, sell, mortgage, lease, hypothesata snd manage all or any
parc of my Crust estate without notice and subjecc only co such
contizmacion as is required by law.
STXTH: I hereby generally and exprassly disioheric any
and all persons whomsoever claiming to be and who may be ay
heirs at law, except as such may be determined by this will,
aod if any such parties or such heirs, ox asy person whomsoever
who, if I died inrestate, would be entitled to any part of ay
estate, ‘shall either directly, single, or in conjunction with any
other person or persons, saak or ascablish or assert any claim to
my estate, or aay parc theracf, axcepting under chis will, or
impaix, invalidace or set aside cha provisions, or endeavor to
Secure or procure any part of my estate, ocher than chrough or under
chis will, chen in any or all of the above mentioned cases and events,
I hereby give and bequeath to said person the sum of One Dollar
($1.00) and no more in liau sf any other share or interesc io
my estate.
IN WITNESS WHERSGZ, I have hereunto subscribed my name
Ss 2 3 day of Merch, 1965,
deapess ES;
VAL Ld ire Mu.Aecaived:
FROM:
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Fay H Blair Acctcy Corp FAX NO. : Nov. 17 2808 65:aePm PIS
tae foregoing instrument, consiscics of aight -($) pages
including chis page, was, act the daze thereof, by FRANCIS O'RETLLY,
ance and in the presence of
cha maker thereof, *ignad in our pr
each of us, and at che time was his Last Wi1L aad Testament, aod
act his request and in his presence ‘and in the presence of each
other, wa have subseribed our names as witnesses thereto.
f i f)
Uhuust W ON Febwe ——ssacoss Mab Lad Cah
~~ “* ‘ or io fe
a Address xt > EOE
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Preview
DONNA SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Jul-11-2011 1:58 pm Case Number: PES-89-176268 Filing Date: Jul-11-2011 1:56 Juke Box: 001 Image: 03265749 PETITION FOR INSTRUCTIONS EST. OF FRANCIS O'REILLY 001P03265749 Instructions: Please place this sheet on top of the document to be scanned;10 il 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PHILIP A. GUNNING, SBN 66053 Attorney at Law 221 Caledonia St. 2" Floor Sausalito, CA 94965 an Frente 415-324-5898 rancisco County Superior Count JUL 1) zon Attorney for Dwight Patrick Reilly, Trustee/Petitioner CLERK OF THE COURT 9 T SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO In re the ESTATE OF CASE NO. PES 89 176268 FRANCIS O’REILLY PETITION FOR INSTRUCTIONS & TO CONSTRUE TRUST INSTRUMENT (Probate Code Secs. 17200(1), (4) & (6) DATE: AUG 15 2011 TIME: 0830 AM DEPT: _Probate—— : ROBATE DEPARTMENT | ROOM: . 9:00 A.M... RM. 204 Petitioner, DWIGHT PATRICK REILLY, Trustee of the Francis O’Reilly testamentary wee ee Ow trust, who in secking the guidance and instructions of this Court pursuant to Probate Code Sections 17200 (1), (4) & (6) alleges as follows: 1. Petitioner’s status: Petitioner is the Trustee of the Francis O’Reilly (hereinafter| the "Testator”) testamentary trust, having been so appointed by this court on 28 February 2001. Petitioner, as an individual, is the Trust’s sole income beneficiary for his lifetime. There is no successor income beneficiary named in the Trust. 1 Petition for Instructions and to construe trust instrument.10 11 12 13 14 a5 16 17 18 19 20 21 22 23 24 25 26 27 28 2. Jurisdiction: This Trust was created in 1966 upon the death of the Testator and is subject to the court’s continuing supervision pursuant to Probate Code Section 17300 ct seq. 3. Exhibit Attached: Attached hereto as Exhibit "A", and incorporated herein by reference, is a true copy of the Testator's "Last Will and Testament " executed on 23 March 1966. Following the Testator’s death his property was distributed according to the terms of the Will to the then-trustee on or about 13 March 1967 4. Trust Principal: Following the sale of the trust real property as approved by the Court in 2005, the Trustee acquired a replacement property to take advantage of the provisions of Sec. 1031 of the Internal Revenue Code. Said replacement property was located at 25 Brookline, Aliso Viejo, California, APN 623-13303. This property was the Trust’ s| primary asset until it was sold in June, 2011 for approximately $1,600,000. The Net Sale proceeds of the sale were $748,858.00. These net sale proceeds are the current principal of the trust. 5. Issues for the Court to Address: In pertinent part, the Will/Trust provides: "Should my nephew, Dwight O'Reilly (sic), die without issue surviving him, then and in that event, this trust shall terminate and my trustee shall pay over the entire remaining corpus thereof to my nephew, Francis O'Reilly, of Moughrea County, Ireland. (Exhibit "A", Pg. 2). Thus, the interest of Francis O'Reilly was contingent upon Dwight Patrick Reilly dying before him. Jn December 2010, the Trustee was informed via Richard Wise, Esq. that Francis O'Reill: had died. (The Trustee has requested a copy of the Death Certificate from Mr. Wise, but has yet to receive it.) Dwight Patrick Reilly remains alive. The Will/Trust is silent as to what happens to the trust principal if Francis O'Reilly 2 Petition for Instructions and to construe trust instrument.10 11 12 13 14 15 16 i7 18 19 20 au 22 23 24 25 26 27 28 were to predecease Dwight Patrick Reilly, which apparently he has done. The issue of Francis O'Reilly (consisting of his six adult children who are the great-nieces and nephews of the testator) think they know the answer to this question. They charged into the breach and asserted, via counsel, that they are now the trust's principal beneficiaries. The Trustee disagrees because the contingency (the death of Dwight Patrick Reilly before Francis O'Reilly) upon which Francis O'Reilly's right to the trust principal depended was not met. The Trustee/Petitioner’s first question for the Court to address is: Since the gift of trust principal to Francis O'Reilly has clearly failed, who is or will become entitled to the Trust's principal upon the death of Dwight Patrick Reilly without issue? 6. The second question for the court to address is this: Paragraph "Sixth" of the O'Reilly Will provides: "I hereby generally and expressly disinherit any and all persons whomsoever claiming to be and who may be my heirs at law, except as such may be determined by this will, and if any such parties or such heirs, or any person whomsoever who, if I died intestate, would be entitled to any part of my estate, shall either directly, single(sic), or in conjunction with any other person or persons, seek or establish or assert any claim to my estate, or any part thereof, excepting under this will, or impair, invalidate or set aside the provisions, or endeavor to secure or procure any part of my estate, other than through or under this will, then in any or all of the above mentioned cases and events, I hereby give and bequeath to said person the| sum of one dollar ($1.00) and no more in lieu of any other share or interest in my estate”. Although they have filed no formal action or contest to date, the issue of Francis O'Reilly are asserting a claim upon the testator's estate and claiming rights as "beneficiaries". They have 3 Patition for Instructions and to construe trust instrument.10 1 12 13 14 15 16 17 18 13 20 ai 22 23 24 25 26 27 28 appeared in this proceeding through their attorney, Richard Wise. Although remotely related to the testator, none of these claimants was named as a beneficiary in his Will, expressly or by category (e.g. as "issue" or "children" or “kin” of the testator). At most, these individuals were remote and excluded "heirs" of precisely the type at which the no-contest clause was directed. The only basis for their claim upon the O'Reilly estate is that their now-dead father, the testator's nephew, would have been the trust's principal beneficiary if he survived Dwight Pairick Reilly. Thus, the question is: Does the assertion by the O'Reilly issue that they are now the beneficiaries of the trust principal constitute a contest of the Will/Trust and, as such, run afoul off the No-Contest clause contained in said Will? The Trustee believes that it does, that the clause is valid and should be applied to bar the claimants from any recovery under the Will of Francis O'Reilly except for the $1.00 each provided for in the clause. 7. The third question for the court is this: Who is the trust's principal beneficiary if the issue of the recently deceased Francis O'Reilly are not? It is the trustee's belief that the absence of a cognizable trust principal beneficiary requireg the Court to determine who, among the heirs at law, is or will be entitled to the trust principal upon the death of Dwight Patrick Reilly. The trustee believes that the law requires that the court apply the intestacy statutes in effect as of the date of the Testator’s death (i.e. 1966) to determine to whom the principal will ultimately be distributed. 7. Notice of Petition: | The only person clearly entitled to Notice of this Petition is Richard Wise, Attorney at Law, who, as counsel for Francis O'Reilly filed a Request for 4 Petition for Instructions and te construe trust instrument.10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Special Notice in this matter. However, Notice of this Petition has also been served on by mail on the issue of Francis O'Reilly, as aspiring but disputed beneficiaries, at addresses provided by Mr. Wise. Thus, Notices of this Petition have been mail served as follows: 1 Richard H. Wise, Esq. 220 Montgomery Street, Suite 965, San Francisco, CA 94104. 2. Michael O'Reilly Cloghoge, Swanlinber, Co. Cavan, Ireland. 3. Francis O'Reilly Hawood, Swanlinber, Co. Cavan, Ireland. 4, Margaret Scully Pallas Beaufort, Killarney, Co. Kerry, Ireland 5. Rosie McManus Main Street Swanlinbar, Co. Cavan, Ireland 6. Anita Fitzpatrick 89 Campbelle Gordon Way Parkside Dollis Hill N. W. 2 6RW London, UK 7. Pauric O'Reilly Mullinaherb Derrylin Co. Fermahagh, Northern Ireland Wherefore Petitioner requests the following: 1. That the Court review the Will/Trust here in issue and determine that the issue of Francis O'Reilly did not and could not succeed to their deceased father's “right " or "interest" because the contingency upon which his "right" or "interest" depended was not met and thus there is nothing for them to succeed to. 5 Petition for Instructions and to construe trust instrument.190 11 12 13 14 15 16 17 18 ig 20 21 22 23 24 25 26 27 28 2. That the Court rule that the claim asserted by the O'Reilly issue that they, collectively and individually, are “principal beneficiaries" runs afoul of the no-contest clause in said Will and, as such, they are disinherited except to the extent of $1.00 cach. 3. For such other and further relief as to the Court seems warranted. Dated: COX. le Petitioner VERIFICATION Lam the Petitioner in this proceeding and have read the foregoing Petition and know the contents thereof. The same is true of my own personal knowledge, except as to those matters that} are stated on information and belief, and, as to those matters, I believe them to be true. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Dated; 7 P- 14 = Executed at Liu Paces Ce ILLY, Trustee ~ Jarl 6 Petition for Instructions and to construe trust instrument.PROM: Fay H Blair Accte: Received: 11/17/00 152545 “sahgaraen Bonnitield & Cattle -; #510, ace 26 a 17 22@@ B4:SEPri P26 y Corp —GE LAST ULLL AND TESTAMENT -G7- FRAKSIS O'RETLLY Featcts vy sei L, FRANCIS O'REILLY, baLag of sound and disposing mind and mamory, and not acting undaz say manece, duress, fraud or undue influence, do hereby make, puvlish and declare che following to be my Lest Will and Tescamenc: PIRST: L aereby revoke all wills and codicils heretofore made by me. SECOD: %I hereby decicra that I am a single man and have 90 I hereby give, devise and bequeath all of ay estate, both real’ and personal, of every kind, character and description and wharasoever situated, together with all property over which I may Seve @ power of testamentary disposition at the time of ay ‘death pursuant co power of aspoincaest, and which I have noc ochezws.2 disposed of (ali of which property io whatever fora ic msy take at any Cime, is hereinafter sometimes referred to as the Trust Escace"), unts the trustee hereinafter oamed, IX TRUST, HOwavin, for cha following uses end purposes: 1. he crustee shall hold, manage, invest and deai wich ths trusc estate as herein authorized and directed, ccect and receive the income darived therefrom, pay all eor:8, texes, charges and other expenses ineideocal to, or jrowing out of, the trusr as hereinafter provided, and shall pay all of | the net incom: dexived from the crust astacte to my grandniaca, CERALDINE ANNE McGOVERN, for che duration of her life. Os the death of my said grandoiece, GERALDINE ...NE MeGL7ERN, with issue or the survivors of predeceased issue then chis trust shail terminate and the trustee Shall pay over the entire remsining corpus to the issue yeReceived: 201: Fay H Blair Acetcy Corp i ssa 7/00 15758; Lo eed Ae +5 #510; Page 27 ~ New. £7 2008 84:58PM PZ? _saAnnaraen Bonnifield & Cottle FAX NO. = of ~ ve we ox survivors of predeceased issue of said G=RALDINE &E MeGOVERN per stixzpcs and noc per capita. Should ay grandniece, GStALDINE ANNE McGOVERN, die AN withouc any issue surviving her thea, and in that event, said nat income shall be payable to ay nephew, DWIGHT Cc O'REILLY, for che duracion of his Life, SF tha destn of my said nephew, DWICKT O'REILLY, with issue or the survivors of predeceased issue, chen this trust shall terminate and che trustee shall pay ovar the entire remaining corpus to che issue or survivora of predeceasad iasue of DWIGHT O'REILLY per stirpes and not per capita. - Should my oephew, DWIGHT O'REILLY, die wichout issue surviving aim, then and in that event, this trust shall terminate and my trustee shall pay over the encire xemaining corpus thereof to ay nephew, FRANCIS O'REILLY, of Moughrea County, Cavin, Ireland. 2. Tha trustee of cha trust herein created and provided for shall have all of the powers generally conferred upon cxusteas by Law and, in addition thereto, shall have che following authoricias and powers: 4. To cake charge of the trust property aod to hold, manage, operate, maiocain and control the sema; to invest aod reinvest and keap the same Lavested in such manner and in auch property, whether real or personal, as aay seem advisable, all without legal resexictiona otherwise applicable fo trustees; to retain and contique to bold indefinitely all or any part of che property “nm the sama form as received or acquired, regardless of whecher che sama is productive of income or whather the trustee would hava purchased the sane a3 trustee, without being under any duty either x TineFRUM w610; @ 11717700 18:50; -*Ancersen Bonnatiels & Gotthe i Received: : Nov. 17 2888 @4:59PM P28 : Fay H Blair Acetcy Corp FAX NO. co eoivere or Giversicy che sate; to hold moneys im sucn interesc-ooaring or non-interesc-bearing bank sccouncs in such amouncs and for such periods of time a6 the truscee shall deem proper, without being liable for eny loss of iocome co the trust estate, b. To worrow money, with or without securicy; co sell, convey, lease, sorcgage, pledge, hypothecate, exchange, insure, improve, alter ox repair any part or all of che trusce estate; to create estates in, aake conveyances, grant options, easements, ofl, gas and mineral rights, of all or amy part of ‘the trust estace for periods continuing beyond the life of che crust or for lesser periods of tine; to partirion and agree for the partition of any property in which the crustees hold any iotereac and te tostituce aod prosecute actions for such partition and to compromise the. same; to bid act v any paxtition sales for and on behalf of the trust and use cash or other property held by thea hereunder flor the purpose of purchasing property at paxtition sales; to make, execute and deliver any and all deeds, comvayances, leases, transfers, bills of sale, notes, mortgages, pledges, assignments, hypothecatioss, agreements, consenrs, documents aod other writings necessary ox proper for the purpose of exercising any of che powers possessed by the trustee; aod 4anerally co exercise with respect Co any aod all of che trust property all rights, powers aod privileges as ara or may be lawfully exercised by any person owning Similar property in his own right, all ac such times and upon such terms and conditions -3- *Received: 11/17/00 18:50; -7Andersen Bonnitiela & Cottle Arcersen Bonnarieid & Gottle -; #510 cage 30 cs : FAX NO. : Nov. 17 2808 85:00PM P38 ~™ FROM: Fay H Blair Acctcy Corp of trust Sal ceubetei quuseiton ( accovacing and co ellceste ta or 3pporcion between principal and income as he in his ubsoluce discrecion shall deea jusc, all receipts and disbursements of money or property, except that the crestea shall not amortize premiums paid for securities or take any account of discounts, and shall creat as principal all scock dividends, liquidating dividends, proceeds of sale or other liquidation of rights to subscribe for stock or other securities, and gains realized on the sale or other . Liquidacion of capital assets, and shall treat as income all ocher cash dividends, both ordinary and extraordinary. g- To employ such agents, attorneys, auditors, bookkeepers and other persons as in his judgment are reasonably nacessary for the proper mansgemenc and protection of tha trust estate or maintenance of proper accounts and records. h. To require the appointment of a legal guardian t for any minor distributee if he shall doom it desirable for any reason; oz to pay or distribute income or principal to any minoz entitled thereto or to use and iz fox the benefit of such minor, without the apply iz é appointment of a legal guardian, and in any such event the trustee shall be fully protected by the receipt of such minor, or the persons conferring such banefit. 3. ‘ha payments of net income or principal to the bene- fichary hereunder shall be free and forever discharged of and from all debts, contracts, obligations and engagements of such beneficiary, and she shall be wichout power to charge, encumber, anticipate or assign the sam@ ox any part thereof, =5- “2 hmReceived: 11/17/00 16:56; -7Ar “Ben Gonnarield & Cottle -; #610; “x98 3! ~ "ROM : Fay H Blair Acctcy Corp FAX NO. = Nov. 17 2080 @5:01PM P31 . " a om "ys ° ‘at rare \ and geet net sovur Wet purebred aid owedy pact weewot gnall not b2 subject to attachment ox Levy or be taken in execution of any legal process whatever dasued against her and the payment by the Crustee of such net income or principal, oz both, to the person encircled thereco or che application by che trustee of all or any part of such net income or principai, or both, to the person entitled thereto or the application by the trustee of all or any part of such income or principal, or both, for the use and benefit of such beneficiary pursuant to the provisions of this will ghall be a good and sufficient discharge of the trustee with respect to each such payment Or application. In che event thas the benafieiary who is entitled to receive any income hereunder shail charge, encumber, anticipate or assign guch income or her right to receive the game or. shall attempt to make any such charge, encumbrance, anticipation or assign- ment, ox 1£ such income shall be attached, levied upon, or teken, transferred ox assigned by force of any writ or process ¥ af law ot by. the operation of law, then upon receipe by che trustee of notice thereof from any person, che right of such beneficiary to ceceive such income shall terminate. 4. No purchaser from or other person dealing with che trustee shall be under any duty or responsibility -o Look to the application of any purchese money or other money paid, loaned or transferred co the trustee. ’ §, desire my trustee to employ my gxandniece, GERALDINE ANNE MCGOVERN, as the resident manager of my apartmencs at 421-435 Buans Vieta Fast, San Francisco, California, empowering her to coliect rents and make disbursemants and monthly reports to my trustee. “RTH: T nominate and appoint BANK OF AMERICA NATIONAL TRUST ~6- -ap =ROM : Fay H Blair Acctcy Corp \- Received: 11s47/00 16:58; in Bonnatield & Cottle -; #510: Sage 32 ->aAnde : Nov. 17 2088 @5:@2Pm P32 FAX NO. = of AND SAVINGS ASSOCIATION, as crustee under che crusc created by this will. ELFTH: I nominate and sepoine BANK OF AMERICA NATIONAL TRUST AHD SAVINGS ASSOCIATION, as ay executor with full power co buy, sell, mortgage, lease, hypothesata snd manage all or any parc of my Crust estate without notice and subjecc only co such contizmacion as is required by law. STXTH: I hereby generally and exprassly disioheric any and all persons whomsoever claiming to be and who may be ay heirs at law, except as such may be determined by this will, aod if any such parties or such heirs, ox asy person whomsoever who, if I died inrestate, would be entitled to any part of ay estate, ‘shall either directly, single, or in conjunction with any other person or persons, saak or ascablish or assert any claim to my estate, or aay parc theracf, axcepting under chis will, or impaix, invalidace or set aside cha provisions, or endeavor to Secure or procure any part of my estate, ocher than chrough or under chis will, chen in any or all of the above mentioned cases and events, I hereby give and bequeath to said person the sum of One Dollar ($1.00) and no more in liau sf any other share or interesc io my estate. IN WITNESS WHERSGZ, I have hereunto subscribed my name Ss 2 3 day of Merch, 1965, deapess ES; VAL Ld ire Mu.Aecaived: FROM: \- 11/17/00 15:69; -PArter@en Bonnsriers & Corere ~s were Page 39 Fay H Blair Acctcy Corp FAX NO. : Nov. 17 2808 65:aePm PIS tae foregoing instrument, consiscics of aight -($) pages including chis page, was, act the daze thereof, by FRANCIS O'RETLLY, ance and in the presence of cha maker thereof, *ignad in our pr each of us, and at che time was his Last Wi1L aad Testament, aod act his request and in his presence ‘and in the presence of each other, wa have subseribed our names as witnesses thereto. f i f) Uhuust W ON Febwe ——ssacoss Mab Lad Cah ~~ “* ‘ or io fe a Address xt > EOE “ -8-