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DocuSign Envelope ID: 36CF9813-27BA-498B-BF08-4F18D140E950
1 SHARTSIS FRIESE LLP
MELISSA S. HUNG (Bar #260738) ELECTRONICALLY
2 KIMBERLY DUGGAN (Bar #206265)
One Maritime Plaza, Eighteenth Floor FILED
Superior Court of California,
3 San Francisco, CA 94111-3598 County of San Francisco
Telephone: (415) 421-6500
4 Facsimile: (415) 421-2922 09/20/2023
Clerk of the Court
Email: MHung@sflaw.com BY: ALISON AGBAY
5 Email: KDuggan@sflaw.com Deputy Clerk
6 Attorneys for Petitioner and Beneficiary,
Felix Wai
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO
10 In re: Case No. PTR-23-306465
11 SUPPLEMENT TO AMENDED
JOHNE. WAI 1981 LIVING TRUST PETITION FOR ORDER APPOINTING
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17 On August 23, 2023, Petitioner, FELIX WAI, as a remainder beneficiary of the John E. Wai
18 1981 Living Trust, dated November 12, 1981, also known as the Wai Living Trust (the "Trust"),
19 filed an Amended Petition for Order Appointing Successor Trustee (the "Petition"), requesting that
20 the Court appoint private professional fiduciary MARK S. UNGER as successor trustee of the
21 Trust, as amended, with $50,000,000 bond. Petitioner hereby submits additional information in
22 support of the Petition, including information requested by the Court, with this Supplement to the
23 Petition (the "Supplement").
24 Probate Examiner's Notes
25 1. On September 19, 2023, Probate Examiner HELEN YUNE TROWBRIDGE
26 ("Probate Examiner Trowbridge") issued notes ("Notes") raising certain issues, as discussed more
27 fully below. A true and correct copy of Probate Examiner Trowbridge's Notes are attached to this
28 Supplement as Exhibit A.
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Case No. SUPPLEMENT TO AMENDED PETITION FOR ORDER
PTR-23-306465 APPOINTING SUCCESSOR TRUSTEE
10055522
11
DocuSign Envelope ID: 36CF9813-27BA-498B-BF08-4F18O140E950
1 2. The Notes posted the following issues and comment:
2 "(a) The petition does not address who represents the interests of the now
3 incapacitated trustor, John E. Wai. Is his doctor's determination that Trustor is
4 incapacitated sufficient for the purposes of this petition?
5 (b) Maria Wai's nomination of Mark S. Unger, attached as Exhibit J to the
6 petition, was signed by Felix Wai as her attorney-in-fact. A copy of the durable power of
7 attorney was not attached to that nomination or filed separately in the proceeding.
8 (c) Miranda Jew is also incapacitated. The petition does not disclose who
9 represents her interest. The service list shows that notice was mailed to Quana Jew,
10 Attorney-in-Fact for Miranda Jew, but this was not disclosed in the petition and nothing has
11 been filed to verity that Quana Jew is Miranda Jew's attorney-in-fact.
~ 12 (d) Furthermore, notice to Quana Jew was sent to "Arent Fox" - presumably her
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13 attorneys - not directly to Quana Jew. [CRC 7.51(a) and (b).]"
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14 3. In addition, the Notes comment that "Trustor's physician's letter dated 6/12/23
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17 4. This Supplement addresses each of these items in turn.
18 Issue 1:
"The petition does not address who represents the interests of the now incapacitated
19 trustor, John E. Wai. Is the doctor's determination that Trustor is incapacitated sufficient
20 for the purposes of this petition?"
21 1. Petitioner represents the interests of Trustor, JOHN E. WAI ("JOHN"), as JOHN's
22 agent under a Uniform Statutory Form Power of Attorney dated September 10, 2021 (the "Power
23 of Attorney"). A true and correct copy of the Power of Attorney is attached hereto as Exhibit B.
24 2. Petitioner's powers and authority under the Power of Attorney became effective
25 immediately upon the execution of the document (Exhibit B, Page 2). Additionally, the Power of
26 Attorney continues to be effective during JOHN's incapacity (Exhibit B, Page 2).
27 3. JOHN initialed the "ALL OF THE POWERS LISTED ABOVE" line on the
28 Power of Attorney, thereby granting Petitioner, in Petitioner's individual capacity, all of the
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Case No. SUPPLEMENT TO AMENDED PETITION FOR ORDER
PTR-23-306465 APPOINTING SUCCESSOR TRUSTEE
10055522
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DocuSign Envelope ID: 36CF9813-27BA-498B-BF08-4F18D140E950
1 powers listed on the Power of Attorney, including, without limitation, estate, trust, and other
2 beneficiary transactions (Exhibit B, Page 1).
3 4. Probate Code Section 4458 provides that in a statutory form power of attorney, the
4 language granting power with respect to estate, trust, and other beneficiary transactions,
5 empowers the agent to act for the principal in all matters that affect a trust, probate estate,
6 guardianship, conservatorship, escrow, custodianship, or other fund from which the principal is,
7 may become, or claims to be entitled, as a beneficiary, to a share or payment.
8 5. Because Petitioner has the power and authority to represent JOHN's interests in
9 this proceeding, the doctor's determination of JOHN's incapacity (the "Doctor's Determination")
10 has no bearing with respect to the representation of JOHN's interests. However, the Doctor's
11 Determination is sufficient for the purpose of the Petition, which is to request the Court to appoint
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0\ 12 MARKS. UNGER as successor Trustee of the Trust. If JOHN were to exercise his power to
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16 6. Any amendment by JOHN would almost certainly be contested in these
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17 circumstances. At the July 28, 2023 Ex Parte Hearing to appoint Petitioner as temporary
18 successor Trustee of the Trust, several remainder beneficiaries of the Trust objected to the
19 appointment of a family member as a successor Trustee of the Trust. Since that hearing,
20 remainder beneficiaries constituting a majority of interests in the trust have expressed a
21 willingness to accept only a third party successor Trustee.
22 7. Finding a third party successor Trustee who is willing and able to act as successor
23 Trustee of the Trust has continued to be challenging due to the large real property holdings, the
24 properties' condition, ongoing litigation, and lack of liquid assets in the Trust. As recently as two
25 days ago, on September 18, 2023, WHITTIER TRUST declined the opportunity to serve as
26 successor Trustee of the Trust, citing the "active litigation and the lack of consensus among the
27 remainder beneficiaries" as factors. (WHITTIER TRUST had requested the beneficiaries'
28 unanimous agreement to provisions limiting WHITTIER TRUST's potential liability if
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Case No. SUPPLEMENT TO AMENDED PETITION FOR ORDER
PTR-23-306465 APPOINTING SUCCESSOR TRUSTEE
10055522
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DocuSign Envelope ID: 36CF9813-27BA-498B-BF08-4F18D140E950
1 WHITTIER TRUST were to serve as successor Trustee.) A true and correct copy of the email
2 declination from THOMAS J. FRANK, JR., JD, TEP, Executive Vice President, Northern
3 California Regional Manager of WHITTIER TRUST is attached hereto as Exhibit C.
4 8. The Doctor's Determination necessitates the Petition, which requests the Court's
5 appointment of successor Trustee. While a majority of the remainder beneficiaries support a third
6 party Trustee, private professional fiduciary MARKS. UNGER has consented to serve as
7 Trustee, but only if the Court decides to order his appointment.
8 Issue 2:
"Maria Wai's nomination of Mark S. Unger, attached as Exhibit J to the petition,
9 was signed by Felix Wai as her attorney-in-fact. A copy of the durable power of
10 attorney was not attached to that nomination or filed separately in the proceeding."
9. A true and correct copy of the Power of Attorney appointing Petitioner, in his
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00 individual capacity, as attorney-in-fact for his mother, MARIA WAI, dated February 23, 2021, is
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attached hereto as Exhibit D ("Maria's Power of Attorney").
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10. Petitioner's powers and authority under Maria's Power of Attorney commenced
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or perform any act, power, duty, right, or obligation whatsoever that I now have, or may hereafter
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acquire the legal right, power, or capacity to exercise or perform, in connection with, arising from,
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or relating to any person, item, transaction, thing, business property, real or personal, tangible or
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intangible, or matter whatsoever" (Exhibit D, Section 3).
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Issue 3:
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"Miranda Jew is also incapacitated. The petition does not disclose who represents
22 her interest. The service list shows that notice was mailed to Quana Jew, Attorney-in-
Fact for Miranda Jew, but this was not disclosed in the petition and nothing has been
23 filed to verify that Quana Jew is Miranda Jew's attorney-in-fact."
24 11. The interest of MIRANDA JEW is represented by one of her daughters, QUANA
25 C. JEW ("QUANA''). MIRANDA JEW appointed QUANA as her Attorney-in-Fact by a General
26 Durable Power of Attorney executed on July 28, 2017. A true and correct copy of said General
27 Durable Power of Attorney is attached hereto as Exhibit E.
28 II
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Case No. SUPPLEMENT TO AMENDED PETITION FOR ORDER
PTR-23-306465 APPOINTING SUCCESSOR TRUSTEE
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DocuSign Envelope ID: 36CF9813-27BA-498B-BF08-4F18D140E950
1 Issue 4:
Notice to Quana Jew was sent to "Arent Fox" - presumably her attorneys - not
2 directly to Quana Jew. [CRC 7.5l(a) and (b).]
3 12. Notice of the hearing on the Petition was sent directly to QUANA, who is an
4 attorney in the Washington DC office of ArentFox Schiff LLP. A true and correct copy of
5 QUANA's website biography as it appears on the ArentFox SchiffLLP website on September 20,
6 2023, is attached hereto as Exhibit F.
7 Comment:
8 Trustor's physician's letter dated 6/12/23 indicates that Trustor's date of birth as
7/30/37, which would make Trustor 86 years old, not 96, as stated in the petition.
9
13. The June 12, 2023 letter written by Trustor's physician, Carlos Quintana, MD,
10
FAAN, contains a typographical error in Trustor's date of birth. Trustor's date of birth, as shown
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on his Senior Citizen Identification Card issued by the State of California, is 07130/1927, making
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him 96 years old at the time the Petition was filed with the Court in this proceeding. A true and
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C/)p...o°' correct copy of said Senior Citizen Identification Card, which has been partially redacted to protect
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Case No. SUPPLEMENT TO AMENDED PETITION FOR ORDER
PTR-23-306465 APPOINTING SUCCESSOR TRUSTEE
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DocuSign Envelope ID: 36CF9813-27BA-498B-BF08-4F18D140E950
1 VERIFICATION
2 The undersigned says:
3 I am the Petitioner in the above-entitled matter. I have read the foregoing Supplement to
4 Amended Petition for Order Appointing Successor Trustee, and know its contents, and the same is
5 true of my knowledge, expect for the matters stated therein on my information and belief, and
6 regarding those matters I believe them to be true.
7 I declare under penalty of perjury, under the laws of the State of California, that the
8 foregoing is true and conect.
9 Executed on September 20, 2023 , at _ _ _ _ _ _ _ _, CaI'£
san Franci sea .
1 omia.
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Case No. SUPPLEMENT TO AMENDED PETITION FOR ORDER
PTR-23-306465 APPOINTING SUCCESSOR TRUSTEE
10055522
EXHIBIT A
September 19, 2023
SAN FRANCISCQCOU.NTY $UPERIOR COURT.
. .. PRO1:3ATE EXAMIN~R'SNOTES
Case#: PTR-23-306465
Matter: John E. Wai 1981 Living Trust
Subject: Amended Petition for Order Appointing Successor Trustee (Probate Code
Sections 15660 and 17200 filed 8/23123 bute-fi/ed 8/25/23
Attorney: Melissa S. Hung and Kimberly Duggan for Beneficiary Felix Wai, Petitioner
Tel: 415-421-6500 Fax/ Email 1 : mh aw.com
Kdu sflaw.com
Examiner: Helen Yune Trowbridge Tel: 415-551-3658 / htrowbridge@sftc.org
Hearing Date: 9/25/23
Continued To:
ISSUES:
The Court to determine if private professional fiduciary Mark S. Unger should be appointed as
the successor trustee of the John E. Wai 1981 Living Trust, dated November 12, 1981 [. as
amended], with $50,000,0000 bond.
1) The petition does not address who represents the interests of the now incapacitated trustor,
John E. Wai. Is his doctor's determination that Trustor is incapacitated sufficient for the
purposes of this petition?
2) Maria Wai's nomination of Mark S. Unger, attached as Exhibit J to the petition, was signed
by Felix Wai as her attorney-in-fact. A copy of the durable power of attorney was not
attached to that nomination or filed separately in the proceeding.
3) Miranda Jew is also incapacitated. The petition does not disclose who represents her
interest. The service list shows that notice was mailed to Quana Jew, Attorney-in-Fact for
Miranda Jew, but this was not disclosed in the petition and nothing has been filed to verity
· that Quana Jew is Miranda Jew's attorney-in-fact.
4) Furthermore, notice to Quana Jew was sent to "Arent Fox" - presumably her attorneys - not
directly to Quana Jew. [CRC 7.51(a) and (b).]
EXAMINER'S COMMENTS:
Trustor's physician's letter dated 6/12/23 indicates that Trustor's date of birth as 7/30/37, which
would make Trustor 86 years old, not 96, as stated in the petition.
DO NOT FAX THE COURT UNLESS REQUESTED
The hearing date must be shown on cover letters or courtesy copies of filed papers.
306465_2023_09_25
1 Examiner's Notes are emailed only to a party whose email address is provided on the pleading.
EXHIBITB
UNIFORM STATUTORY FORM POWER OF ATTORNEY
(California Probate Code Section 4401)
NOTICE: THE POWERS GRANTED BY THIS DOCUMENT ARE BROAD AND SWEEPING. THEY ARE
EXPLAINED IN THE UNIFORM STATUTORY FORM POWER OF ATTORNEY ACT (CALIFORNIA
PROBATE CODE SECTIONS 4400-4465). THE POWERS LISTED IN THIS DOCUMENT DO NOT
INCLUDE ALL POWERS THAT ARE AVAILABLE UNDER THE PROBATE CODE. ADDITIONAL
POWERS AVAILABLE UNDER THE PROBATE CODE MAY BE ADDED BY SPECIFICALLY LISTING
THEM UNDER THE SPECIAL INSTRUCTIONS SECTION OF THIS DOCUMENT. IF YOU HAVE ANY
QUESTIONS ABOUT THESE POWERS, OBTAIN COMPETENT LEGAL ADVICE. THIS DOCUMENT
DOES NOT AUTHORIZE ANYONE TO MAKE MEDICAL AND OTHER HEALTH-CARE DECISIONS
FOR YOU. YOU MAY REVOKE THIS POWER OF ATIORNEY IF YOU LATER WISH TO DO SO.
I, ____,__;J=o=hn=--..,.W~at=·•~l=33=3~J=o=ne=s~S=tre=et~U=m=·t~l~l~Ol~S=an=-..:F=ran=c=isc=o~C=A'-"-"-9~41~0=9
appoint th.....A__v"""e=nu=e::....;S=an=--"F"""'ran=c=is=co.,_C=A=--=-.c9~4~1"'""18,.__ _ _ __
--'F::....;e=li=x_,W"""a=i-=,2=0=2'--4'-
(name and address of the person appointed, or of each person appointed if you want to designate more than one)
as my agent (attorney-in-fact) to act for me in any lawful way with respect to the following initialed
subjects:
TO GRANT ALL OF THE FOLLOWING POWERS, INITIAL THE LINE IN FRONT OF (N), AND IGNORE
THE LINES IN FRONT OF THE OTHER POWERS.
TO GRANT ONE OR MORE, BUT FEWER THAN ALL, OF THE FOLLOWING POWERS, INITIAL THE
LINE IN FRONT OF EACH POWER YOU ARE GRANTING.
TO WITHHOLD A POWER, DO NOT INITIAL THE LINE IN FRONT OF IT. YOU MAY, BUT NEED NOT,
CROSS OUT EACH POWER WITHHELD.
INITIAL:
_ _ (A) Real property transactions.
_ _ (B) Tangible personal property transactions.
_ _ (C) Stock and bond transactions.
_ _ (D) Commodity and option transactions.
_ _ (E) Banking and other financial institution transactions.
(F) Business operating transactions.
_ _ (G) Insurance and annuity transactions.
_ _ (H) Estate, trust, and other beneficiary transactions.
(I) Claims and litigation.
(J) Personal and family maintenance.
(K) Benefits from social security, Medicare, Medicaid, or other governmental programs, or
- - civil or military service.
_ _ (L) Retirement plan transactions.
M,(M) Tax matters.
lf (N) ALL OF THE POWERS LISTED ABOVE.
YOU NEED NOT INITIAL ANY OTHER LINES IF YOU INITIAL LINE (N).
Pagt: I of 2
SPECIAL INSTRUCTIONS:
ON THE FOLLOWING LINES YOU MAY GIVE SPECIAL INSTRUCTIONS LIMITING OR EXTENDING
THE POWERS GRANTED TO YOUR AGENT.
UNLESS YOU DIRECT OTHERWISE ABOVE, THIS POWER OF ATTORNEY IS EFFECTIVE
IMMEDIATELY AND WILL CONTINUE UNTIL IT IS REVOKED.
This power of attorney will continue to be effective even though I become incapacitated.
STRIKE THE PRECEDING SENTENCE IF YOU DO NOT WANT THIS POWER OF ATTORNEY TO
CONTINUE IF YOU BECOME INCAPACITATED.
EXERCISE OF POWER OF ATTORNEY WHERE MORE THAN ONE AGENT DESIGN ATED
If I have designated more than one agent, the agents are to act _ _ _ _ _ _ _ _ _ _ _ __
IF YOU APPOINTED MORE THAN ONE AGENT AND YOU WANT EACH AGENT TO BE ABLE TO
ACT ALONE WITHOUT THE OTHER AGENT JOINING, WRITE THE WORD "SEPARATELY" IN THE
BLANK SPACE ABOVE. IF YOU DO NOT INSERT ANY WORD IN THE BLANK SPACE, OR IF YOU
INSERT THE WORD "JOINTLY," THEN ALL OF YOUR AGENTS MUST ACT OR SIGN TOGETHER.
I agree that any third party who receives a copy of this document may act under it. A third party may seek
identification. Revocation of the power of attorney is not effective as to a third party until the third party has actual
knowledge of the revocation. I agree to indemnify the third party for any claims that arise against the third party
because of reliance on this power of attorney.
Signed this ____./~o__ day of -'et'f$.t'9=:, 20 2-I
State of California
County of 9gJ ~ c..t S'"'~
BY ACCEPTING OR ACTING UNDER THE APPOINTMENT, THE AGENT ASSUMES THE FIDUCIARY
AND OTHER LEGAL RESPONSIBILITIES OF AN AGENT.
CERTIFICATE OF ACKNOWLEDGMENT OF NOTARY PUBLIC
State of California )
)
County of __________ )
On this _ _ _ day of - - ~ 20_ before me, _ _ _ _ _ _ _ _ (name of notary public),
personally appeared _ _ _ _ _ (name of principal), personally known to me (or proved to me on the basis
of satisfactory evidence) to be the person whose name is subscribed to this instrument, and acknowledged that he
or she executed it.
_ _ _ _ _ _ _ _ (signature of notary public)
NOTARY SEAL
Page2 of 2
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of
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before me, '?t-ttR ~ ,'-rr:t NDTAR
Sent: Monday, September 18, 2023 9:46 AM
To: Robert Wai
Cc: Jorge Ramos; Chuck Adams; Hung, Melissa S.
Subject: Whittier Trust
[Caution • External Email. Do not click on links or open attachments unless you recognize the sender and know the content is
safe.]
Dear Robert,
After reviewing the petition you sent me last Thursday afternoon, I went online to read the court documents regarding
the Vybe litigation. We have considered Whittier Trust's ability to shepherd the active litigation and the lack of
consensus among the remainder beneficiaries and reached the conclusion that we are unable to step in as successor
trustee for your uncle's trust. I'll go ahead and cancel the Zoom meeting for this afternoon and apologize for any
inconvenience this may cause.
We certainly appreciate you thinking of us and we wish you the best going forward.
Sincerely, Tom
Thomas J. Frank, Jr., JD, TEP
Executive Vice President
Northern California Regional Manager
•:.::::::,
❖-
WhittierTrust
505 Montgomery Street, Suite 1200
San Francisco, CA 94111
T: 415.283.1846
525 Middlefield Road, Suite 110
Menlo Park, CA 94025
T: 650.609 .2301
tfrank@whittiertrust.com
NOTICE: UNAUTHORIZED USE OR DISCLOSURE IS STRICTLY PROHIBITED This transmission (including any attachments)
may contain sensitive information, privileged material (including material protected by the solicitor-client or other
applicable privileges), or constitute non-public information. Use, dissemination, distribution, or reproduction of this
transmission by unintended recipients is not authorized and may be unlawful. All email sent to or from the Whittier
Trust Company email system is subject to archiving, monitoring and/or review by WTC personnel.
1
EXHIBITD
This instrument prepared by:
Jason D. Salomon, Esq.
Harkavy Shainberg Kaplan PLC
6060 Poplar Avenue, Suite 140
Memphis, Tennessee 38119
(901) 866-5328
DURABLE GENERAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that I, MARIA M. WAI, the undersigned,
of Shelby County, Tennessee, do hereby make, constitute, and appoint FELIX H. WAI my
true and lawful Attorney in Fact for me and in my name, place, and stead, on my behalt~ and
for my use and benefit in accordance with the provisions set forth herein.
If the Attorney in Fact named is unable or unwilling to serve, said Attorney in Fact shall
be succeeded by HILLARY M. CLARK. lf HILLARY M. CLARK is unable or unwilling to
serve, she shall be succeeded by TERENCE W. NG.
1. Durable Power. This Power of Attorney is specifically given pursuant to, and
interpreted in accordance with, the provisions of the Uniform Durable Power of Attorney Act
(Tenn. Code Ann.§ 34-6-101, et seq.). Accordingly, all Acts done by the Attorney in Fact
pursuant to this Power of Attorney shall have the same effect and inure for my benefit and bind
me and my successors in interest as if l personally performed said act. In addition, all acts
done by my Attorney in Fact pursuant to this Durable Power of Attorney, during any period of
disability or incapacity, shall have the same effect and inure to my benefit and bind me and
my successors in interest as if I were competent and not disabled.
2. Revocation of Prior Documents. This Power of Attorney revokes all Powers of
Attorney for financial affairs previously executed.
3. Powers Granted. This Power of Attorney is intended to be an unlimited general
power of attorney, encompassing all real and personal property owned by me, or in which I
have any interest, including tangible and intangible property. and in order to perform the duties
of my Attorney in Fact the following powers, in addition to those granted under Tenn. Code
Ann. § 34-6-109 which are incorporated herein by reference, are granted to my Attorney in
Fact:
A. To exercise or perform any act, power, duty, right, or obligation
whatsoever that I now have, or may hereafter acquire the legal right, power, or capacity to
exercise or perform, in connection with, arising from, or relating to any person, item,
transaction, thing, business property, real or personal, tangible or intangible, or matter
whatsoever;
Initials
B. To request, ask, demand, sue for, recover, collect, receive, and hold and
possess all such sums of money, debts, dues, commercial papers, checks, drafts, accounts,
deposits, legacies, bequests, devises, notes, interests, stock certificates, bonds, dividends,
certificates of deposit, annuities, pension and retirement benefits, insurance benefits and
proceeds, any and all documents of title, choses in action, personal and real property, tangible
and intangible property and property rights, and demands whatsoever, liquidated or
unliquidated, as now are, or shall hereafter become, owned by, or due, owing, payable, or
belonging to, me or in which I have or may hereafter acquire interest, to have, use, and take
all lawful means and equitable and legal remedies, procedures, and writs in my name for the
collection and recovery thereof, and to adjust, sell, compromise, and agree for the same, and
to make, execute and deliver for me, on my behalf, and in my name, all endorsements.
acquittances, releases, receipts, or other sufficient discharges for the same;
C. To lease, purchase, sell, exchange, and acquire, and to agree, bargain,
and contract for the lease, purchase, sale, exchange, and acquisition of, and to accept, take,
receive, and possess any real or personal property whatsoever, tangible or intangible, or
interest therein, on such terms and conditions, and under such covenants, as said Attorney in
Fact shall deem proper;
D. To maintain, repair, improve, manage, insure, rent, lease, sell, convey,
subject to liens, mortgage, subject to deeds of trust, and hypothecate, and in any way or manner
deal with all or any part of any real or personal property whatsoever, tangible or intangible, or
any interest therein, that I now own or may hereafter acquire, for me, in my behalf, and in my
name and under such terms and conditions, and under such covenants, as said Attorney in Fact
shall deem proper;
E. To conduct, engage in, and transact any and all lawful business of
whatever nature or kind for me, on my behalf, and in my name;
F. To make, receive, sign, endorse, execute, acknowledge, deliver and
possess such applications, contracts, agreements, options, covenants, conveyances, deeds,
security agreements, bills of sale, leases, mortgages, assignments, insurance policies, bills of
lading, warehouse receipts, documents of title, bills, bonds, debentures, checks, drafts, bills of
exchange, letters of credit, notes, stock certificates, proxies, warrants, commercial papers,
receipts, withdrawal receipts and deposit instruments relating to accounts or deposits in, or
certificates of deposit of, banks, savings and loan or other institutions or associations, proofs
of loss, evidences of debts, releases, and satisfaction of mortgages, liens, judgments, security
agreements and other debts and obligations and such other instruments in writing of whatever
kind and nature as may be necessary or proper in the exercise of the rights and powers herein
granted;
G. To establish and fund a trust to provide for my health, support and care
should the Attorney in Fact determine that I am not capable of managing my financial affairs.
i
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Initials
Said trust assets shall be payable to my estate at my death or to any Revocable Living Trust
established by me during my lifetime. Notwithstanding the above, in the case of a trust created
pursuant to 42 U.S.C. § 1396p(d)(4)(B) (a Miller Trust) the trust assets shall be payable at my
death according to the terms of the trust;
H. To transfer any property in which I have an ownership interest to any
trust created by me which contains provisions for my care and support including a Revocable
Living Trust;
I. To exercise any incidents of ownership on any life insurance policies,
employee benefit plans, annuity, retirement account or otherwise owned by me;
J. To change the beneficiary designations on any death benefits payable on
account of my death from any life insurance policy, employee benefit plan, annuity, retirement
account or otherwise, so long as same is changed to be payable to my estate or to any trust
which l have established;
K. To change, add or delete any right of tenancy by the entirety or joint
tenancy with right of survivorship designation or pay on death designation on any property,
real or personal, to which I hold title, alone or with others;
L. To renounce or disclaim (as defined in I.R.C. § 2518) any property or
interest in property or powers to which I may become entitled, whether by gift or testate or
intestate succession;
M. To exercise any right or refuse, release or abandon any right to claim an
elective share in any estate or under any Will;
N. To have free and private access to any safe deposit box in my name,
alone or with others, in any bank, including the authority to have it drilled, with full right of
deposit and withdrawal therefrom and to give full discharge therefor;
0. To execute on my behalf additional powers of attorney as may be
specifically required by a financial institution which requires the utilization of a specific form
power of attorney in order to allow the Attorney in Fact to transact business. This includes,
but is not limited to, form powers of attorney supplied by brokerage companies and banking
institutions;
P. To serve as my Representative Payee for the purposes ofreceiving Social
Security benefits. The Attorney in Fact may collect all benefits payable to or for my benefit
by any governmental agency or body, such as Supplemental Security Income (SSI), Medicaid,
Medicare, and Social Security Disability Insurance (SSDI). The Attorney in Fact shall have
the full power to represent me and deal in all ways necessary concerning rights or benefits
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payable to me by any governmental agency including Supplemental Security Income (SSI),
Medicaid, and Social Security Disability Insurance (SSDI);
Q. To represent me in all tax matters and proceedings before any agent or
officer of the Internal Revenue Service, state and local authorities and in any court, for all
periods. This includes, but is not limited to, the power to prepare, sign, and file all federal,
state, and local tax returns including income, gift, FICA, and payroll tax returns on my behalf
and prepare, sign, and file claims for refunds, requests for extensions of time to file returns or
pay taxes, extensions and waivers of applicable periods oflimitation, and protests and petitions
to administrative agencies or courts (including the United States Tax Court);
R. To initiate or continue any gifting program and thereby make gifts or
other transfers without consideration to the group composed of my issue or any charitable
organization, including the power to gift or otherwise spend down my estate for Medicaid
eligibility and planning, as limited as follows:
1. Gifts to my issue or any charitable organization are permitted, so
long as the gifts are within the amounts excludable from taxable
gifts by I.R.C. § 2503(b), as amended, and so long as the gifts
made by the Attorney in Fact to himself or herself are not in
excess of the maximum amount which does not constitute a lapse
of a power of appointment under I.R.C. § 204l(b)(2), as amended
(the greater of $5,000 or 5% of the assets out of which the
exercise of the power could have been satisfied);
n. Gifts to my issue or any charitable organization in excess of the
1.R.C. § 2503(b) exclusion may be made for the purpose of
implementing estate planning and/or estate and inheritance tax
savings techniques. Gifts in excess of the I.R.C. § 2503(b)
exclusion shall require the approval of an attorney, certified
public accountant, or corporate fiduciary not under the control of
the Attorney in Fact or the beneficiary of the gift within the
meaning ofl.R.C. § 672(c);
S. To access, use and control my digital devices; including, but not limited
to any computers, storage devices; mobile telephones/smartphones, and/or tablets I own and/or
lease;
T. To access, modify, delete, control, and transfer my digital assets,
including, but not limited to my email (including the content of my email), email accounts,
digital photographs, digital videos, software licenses, social network accounts, file sharing
accounts, financial accounts, domain registrations, web hosting accounts, on-line storage
accounts, on-line tax preparation soflware, on-line retail stores, frequent flyer programs (and
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MtU)
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other bonus programs), and similar digital items which currently exist or exist in the future as
technology develops; and
U. To do, take, and perform all and every act and thing whatsoever requisite,
proper, or necessary to be done, in the exercise of any of the rights and powers herein granted,
as fully to alJ intents and purposes as I might or could do if personally present, with full power
of substitution or revocation, hereby ratifying and confirming all that said Attorney in Fact, or
his or her substitute or substitutes, shall lawfully do or cause to be done by virtue of this power
of attorney and the rights and powers herein granted.
4. Interpretation of Instrument. This instrument is to be construed as an unlimited
general power of attorney. The enumeration of specific items, rights, acts, or powers herein is
not intended, nor does it, limit or restrict, and is not to be construed or interpreted as limiting
or restricting, the general powers herein granted to said Attorney in Fact.
5. Assets Covered. It is intended by the granting of this Power of Attorney that
same cover all assets of the principal, whether presently existing, or hereinafter acquired, and
all construction of this instrument shall be as an unlimited general power of attorney.
6. Commencement and Term of Financial Powers. The rights, powers, and
authority of this Power of Attorney herein granted shall commence upon the date of the
execution of this document.
7. Termination of Powers. This Power of Attorney shall remain in full force and
effect until this Power of Attorney is properly revoked or until the death of the principal.
Provided that, the revocation of this Power of Attorney sha11 only be accomplished by the
execution of a written instrument clearly and specifically revoking this Durable Power of
Attorney duly signed by the principal, properly notarized, and personally delivered to the
Attorney in Fact. Provided that, if the rights, power and authority of this Power of Attorney
commenced upon the date that I became disabled or incapacitated, as determined by a
physician or psychologist, then with respect to any subsequent attempted revocation of this
Power of Attorney, my Attorney in Fact shall not recognize any such revocation unless same
is accompanied by and/or supported with an Affidavit of a physician or psychologist meeting
the same qualifications as set forth above which states that I am no longer incapacitated or
disabled and that I am capable of managing my own estate and financial and personal affairs.
My death or the revocation of this Power of Attorney does not revoke or terminate the Power
of Attorney established herein as to the Attorney in Fact or other person who, without actual
(as opposed to constructive) knowledge of my death or the revocation of said Power of
Attorney, acts in good faith under the power. Any action so taken, unless otherwise
specifically invalid or unenforceable, binds my successors in interest. THIS POWER OF
ATTORNEY IS NOT VOID BY REASON OF THE MERE LAPSE OF TIME.
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8. Reliance by Third Party. As to acts taken by any parties in good faith reliance
upon this Power of Attorney, an Affidavit executed by the Attorney in Fact under this Power
of Attorney stating that my Attorney in Fact did not have, at the time of the exercise of the
power, actual (as opposed to constructive) knowledge of the termination of this Power of
Attorney or the revocation of the authority or of my death, is conclusive proof of the
interpretation and non-termination of the power at that time. No person dealing with the
Attorney in Fact shall be required to fmiher inquire as to the authority of the Attorney in Fact
or the disposition of any assets or funds or documents delivered to the Attorney in Fact.
9. Court Enforcement. My Attorney in Fact is specifically authorized to initiate
litigation on my behalf, as allowed by law, against any person failing or refusing to follow the
instructions of my Attorney in Fact who is acting pursuant to this Power of Attorney. My
Attorney in Fact is specifica1ly authorized to employ legal counsel in connection with such
litigation, as necessary to seek a declaratory judgment interpreting this power of attorney, a
mandatory injunction requiring compliance with the instructions of my Attorney in Fact,
damages and any other remedies available at law. If such litigation is initiated, my Attorney
in Fact shall seek reimbursement
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11 DocuSign Envelope ID: 36CF9813-27BA-498B-BF08-4F18D140E950 1 SHARTSIS FRIESE LLP MELISSA S. HUNG (Bar #260738) ELECTRONICALLY 2 KIMBERLY DUGGAN (Bar #206265) One Maritime Plaza, Eighteenth Floor FILED Superior Court of California, 3 San Francisco, CA 94111-3598 County of San Francisco Telephone: (415) 421-6500 4 Facsimile: (415) 421-2922 09/20/2023 Clerk of the Court Email: MHung@sflaw.com BY: ALISON AGBAY 5 Email: KDuggan@sflaw.com Deputy Clerk 6 Attorneys for Petitioner and Beneficiary, Felix Wai 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN FRANCISCO 10 In re: Case No. PTR-23-306465 11 SUPPLEMENT TO AMENDED JOHNE. WAI 1981 LIVING TRUST PETITION FOR ORDER APPOINTING -< 15 Dept.: 204 0 fJ.1 µ.. 16 ~ Cl) (/) 17 On August 23, 2023, Petitioner, FELIX WAI, as a remainder beneficiary of the John E. Wai 18 1981 Living Trust, dated November 12, 1981, also known as the Wai Living Trust (the "Trust"), 19 filed an Amended Petition for Order Appointing Successor Trustee (the "Petition"), requesting that 20 the Court appoint private professional fiduciary MARK S. UNGER as successor trustee of the 21 Trust, as amended, with $50,000,000 bond. Petitioner hereby submits additional information in 22 support of the Petition, including information requested by the Court, with this Supplement to the 23 Petition (the "Supplement"). 24 Probate Examiner's Notes 25 1. On September 19, 2023, Probate Examiner HELEN YUNE TROWBRIDGE 26 ("Probate Examiner Trowbridge") issued notes ("Notes") raising certain issues, as discussed more 27 fully below. A true and correct copy of Probate Examiner Trowbridge's Notes are attached to this 28 Supplement as Exhibit A. - 1- Case No. SUPPLEMENT TO AMENDED PETITION FOR ORDER PTR-23-306465 APPOINTING SUCCESSOR TRUSTEE 10055522 11 DocuSign Envelope ID: 36CF9813-27BA-498B-BF08-4F18O140E950 1 2. The Notes posted the following issues and comment: 2 "(a) The petition does not address who represents the interests of the now 3 incapacitated trustor, John E. Wai. Is his doctor's determination that Trustor is 4 incapacitated sufficient for the purposes of this petition? 5 (b) Maria Wai's nomination of Mark S. Unger, attached as Exhibit J to the 6 petition, was signed by Felix Wai as her attorney-in-fact. A copy of the durable power of 7 attorney was not attached to that nomination or filed separately in the proceeding. 8 (c) Miranda Jew is also incapacitated. The petition does not disclose who 9 represents her interest. The service list shows that notice was mailed to Quana Jew, 10 Attorney-in-Fact for Miranda Jew, but this was not disclosed in the petition and nothing has 11 been filed to verity that Quana Jew is Miranda Jew's attorney-in-fact. ~ 12 (d) Furthermore, notice to Quana Jew was sent to "Arent Fox" - presumably her ~ Lt, ......l~~~ ......l O ,-< 0 -tj-- 13 attorneys - not directly to Quana Jew. [CRC 7.51(a) and (b).]" C/) µ.) µ.) p_, ,-...l µ) µ.. °' < ~ ::;s ::e r.r.. E-< ,-.< O - 14 3. In addition, the Notes comment that "Trustor's physician's letter dated 6/12/23 C/)§~8 w~ ~ ~ 15 indicates that Trustor's date of birth as 7/30/37, which would make Trustor 86 years old, not 96, as ~~§~ 16 ~Qel-lµ.. stated in the petition." Cl) ~ (/) 17 4. This Supplement addresses each of these items in turn. 18 Issue 1: "The petition does not address who represents the interests of the now incapacitated 19 trustor, John E. Wai. Is the doctor's determination that Trustor is incapacitated sufficient 20 for the purposes of this petition?" 21 1. Petitioner represents the interests of Trustor, JOHN E. WAI ("JOHN"), as JOHN's 22 agent under a Uniform Statutory Form Power of Attorney dated September 10, 2021 (the "Power 23 of Attorney"). A true and correct copy of the Power of Attorney is attached hereto as Exhibit B. 24 2. Petitioner's powers and authority under the Power of Attorney became effective 25 immediately upon the execution of the document (Exhibit B, Page 2). Additionally, the Power of 26 Attorney continues to be effective during JOHN's incapacity (Exhibit B, Page 2). 27 3. JOHN initialed the "ALL OF THE POWERS LISTED ABOVE" line on the 28 Power of Attorney, thereby granting Petitioner, in Petitioner's individual capacity, all of the -2- Case No. SUPPLEMENT TO AMENDED PETITION FOR ORDER PTR-23-306465 APPOINTING SUCCESSOR TRUSTEE 10055522 11 DocuSign Envelope ID: 36CF9813-27BA-498B-BF08-4F18D140E950 1 powers listed on the Power of Attorney, including, without limitation, estate, trust, and other 2 beneficiary transactions (Exhibit B, Page 1). 3 4. Probate Code Section 4458 provides that in a statutory form power of attorney, the 4 language granting power with respect to estate, trust, and other beneficiary transactions, 5 empowers the agent to act for the principal in all matters that affect a trust, probate estate, 6 guardianship, conservatorship, escrow, custodianship, or other fund from which the principal is, 7 may become, or claims to be entitled, as a beneficiary, to a share or payment. 8 5. Because Petitioner has the power and authority to represent JOHN's interests in 9 this proceeding, the doctor's determination of JOHN's incapacity (the "Doctor's Determination") 10 has no bearing with respect to the representation of JOHN's interests. However, the Doctor's 11 Determination is sufficient for the purpose of the Petition, which is to request the Court to appoint p.. 00 0\ 12 MARKS. UNGER as successor Trustee of the Trust. If JOHN were to exercise his power to 3 1.£') :j ~ ~~ 0~ 13 amend the terms of the Trust to appoint a successor Trustee or to incorporate a mechanism for C/)p..,9°' ~p:_1J:.I,<( ~~::cu IJ-< ....... E---< ~ 14 appointing a successor Trustee, the Doctor's Determination raises questions regarding the validity Cl)~ U) ~ Gi 8~ i~!~ p:_) 15 of any such amendment. 0 p:_) µ, 16 6. Any amendment by JOHN would almost certainly be contested in these ~ Cl) 17 circumstances. At the July 28, 2023 Ex Parte Hearing to appoint Petitioner as temporary 18 successor Trustee of the Trust, several remainder beneficiaries of the Trust objected to the 19 appointment of a family member as a successor Trustee of the Trust. Since that hearing, 20 remainder beneficiaries constituting a majority of interests in the trust have expressed a 21 willingness to accept only a third party successor Trustee. 22 7. Finding a third party successor Trustee who is willing and able to act as successor 23 Trustee of the Trust has continued to be challenging due to the large real property holdings, the 24 properties' condition, ongoing litigation, and lack of liquid assets in the Trust. As recently as two 25 days ago, on September 18, 2023, WHITTIER TRUST declined the opportunity to serve as 26 successor Trustee of the Trust, citing the "active litigation and the lack of consensus among the 27 remainder beneficiaries" as factors. (WHITTIER TRUST had requested the beneficiaries' 28 unanimous agreement to provisions limiting WHITTIER TRUST's potential liability if -3- Case No. SUPPLEMENT TO AMENDED PETITION FOR ORDER PTR-23-306465 APPOINTING SUCCESSOR TRUSTEE 10055522 11 DocuSign Envelope ID: 36CF9813-27BA-498B-BF08-4F18D140E950 1 WHITTIER TRUST were to serve as successor Trustee.) A true and correct copy of the email 2 declination from THOMAS J. FRANK, JR., JD, TEP, Executive Vice President, Northern 3 California Regional Manager of WHITTIER TRUST is attached hereto as Exhibit C. 4 8. The Doctor's Determination necessitates the Petition, which requests the Court's 5 appointment of successor Trustee. While a majority of the remainder beneficiaries support a third 6 party Trustee, private professional fiduciary MARKS. UNGER has consented to serve as 7 Trustee, but only if the Court decides to order his appointment. 8 Issue 2: "Maria Wai's nomination of Mark S. Unger, attached as Exhibit J to the petition, 9 was signed by Felix Wai as her attorney-in-fact. A copy of the durable power of 10 attorney was not attached to that nomination or filed separately in the proceeding." 9. A true and correct copy of the Power of Attorney appointing Petitioner, in his 11 00 individual capacity, as attorney-in-fact for his mother, MARIA WAI, dated February 23, 2021, is p... °' 12 3 lf"1 ~~ :3r.u 0~ 13 attached hereto as Exhibit D ("Maria's Power of Attorney"). C/)p.,9°' r.u w µ.. -<1.'. 10. Petitioner's powers and authority under Maria's Power of Attorney commenced ~ ;2 i:.r... ,-....< ::cu [--< - 14 Cl)~ Gi 8 upon the execution of the document (Exhibit D, Section 6). Maria's Power of Attorney is intended ~ [--< i~§~ >-< Cl) r.r.l C/) ,-....< 15 0 r.r.l µ.. to be an unlimited general power of attorney, and Petitioner has the explicit power "[t]o exercise 16 ~ Cl) or perform any act, power, duty, right, or obligation whatsoever that I now have, or may hereafter 17 acquire the legal right, power, or capacity to exercise or perform, in connection with, arising from, 18 or relating to any person, item, transaction, thing, business property, real or personal, tangible or 19 intangible, or matter whatsoever" (Exhibit D, Section 3). 20 Issue 3: 21 "Miranda Jew is also incapacitated. The petition does not disclose who represents 22 her interest. The service list shows that notice was mailed to Quana Jew, Attorney-in- Fact for Miranda Jew, but this was not disclosed in the petition and nothing has been 23 filed to verify that Quana Jew is Miranda Jew's attorney-in-fact." 24 11. The interest of MIRANDA JEW is represented by one of her daughters, QUANA 25 C. JEW ("QUANA''). MIRANDA JEW appointed QUANA as her Attorney-in-Fact by a General 26 Durable Power of Attorney executed on July 28, 2017. A true and correct copy of said General 27 Durable Power of Attorney is attached hereto as Exhibit E. 28 II -4- Case No. SUPPLEMENT TO AMENDED PETITION FOR ORDER PTR-23-306465 APPOINTING SUCCESSOR TRUSTEE 10055522 11 DocuSign Envelope ID: 36CF9813-27BA-498B-BF08-4F18D140E950 1 Issue 4: Notice to Quana Jew was sent to "Arent Fox" - presumably her attorneys - not 2 directly to Quana Jew. [CRC 7.5l(a) and (b).] 3 12. Notice of the hearing on the Petition was sent directly to QUANA, who is an 4 attorney in the Washington DC office of ArentFox Schiff LLP. A true and correct copy of 5 QUANA's website biography as it appears on the ArentFox SchiffLLP website on September 20, 6 2023, is attached hereto as Exhibit F. 7 Comment: 8 Trustor's physician's letter dated 6/12/23 indicates that Trustor's date of birth as 7/30/37, which would make Trustor 86 years old, not 96, as stated in the petition. 9 13. The June 12, 2023 letter written by Trustor's physician, Carlos Quintana, MD, 10 FAAN, contains a typographical error in Trustor's date of birth. Trustor's date of birth, as shown 11 on his Senior Citizen Identification Card issued by the State of California, is 07130/1927, making 00 °' 12 ~ lr) him 96 years old at the time the Petition was filed with the Court in this proceeding. A true and :Jµ.i ~ o:;;; ~~ 13 C/)p...o°' correct copy of said Senior Citizen Identification Card, which has been partially redacted to protect µ.) r.r.1 ti <( ~::o::u 14 µ.,EE----< ) U) 15 0 r.r.. µ) 16 ~ U) U) 17 18 19 20 21 22 23 24 25 26 27 28 -6- Case No. SUPPLEMENT TO AMENDED PETITION FOR ORDER PTR-23-306465 APPOINTING SUCCESSOR TRUSTEE 10055522 11 DocuSign Envelope ID: 36CF9813-27BA-498B-BF08-4F18D140E950 1 VERIFICATION 2 The undersigned says: 3 I am the Petitioner in the above-entitled matter. I have read the foregoing Supplement to 4 Amended Petition for Order Appointing Successor Trustee, and know its contents, and the same is 5 true of my knowledge, expect for the matters stated therein on my information and belief, and 6 regarding those matters I believe them to be true. 7 I declare under penalty of perjury, under the laws of the State of California, that the 8 foregoing is true and conect. 9 Executed on September 20, 2023 , at _ _ _ _ _ _ _ _, CaI'£ san Franci sea . 1 omia. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7- Case No. SUPPLEMENT TO AMENDED PETITION FOR ORDER PTR-23-306465 APPOINTING SUCCESSOR TRUSTEE 10055522 EXHIBIT A September 19, 2023 SAN FRANCISCQCOU.NTY $UPERIOR COURT. . .. PRO1:3ATE EXAMIN~R'SNOTES Case#: PTR-23-306465 Matter: John E. Wai 1981 Living Trust Subject: Amended Petition for Order Appointing Successor Trustee (Probate Code Sections 15660 and 17200 filed 8/23123 bute-fi/ed 8/25/23 Attorney: Melissa S. Hung and Kimberly Duggan for Beneficiary Felix Wai, Petitioner Tel: 415-421-6500 Fax/ Email 1 : mh aw.com Kdu sflaw.com Examiner: Helen Yune Trowbridge Tel: 415-551-3658 / htrowbridge@sftc.org Hearing Date: 9/25/23 Continued To: ISSUES: The Court to determine if private professional fiduciary Mark S. Unger should be appointed as the successor trustee of the John E. Wai 1981 Living Trust, dated November 12, 1981 [. as amended], with $50,000,0000 bond. 1) The petition does not address who represents the interests of the now incapacitated trustor, John E. Wai. Is his doctor's determination that Trustor is incapacitated sufficient for the purposes of this petition? 2) Maria Wai's nomination of Mark S. Unger, attached as Exhibit J to the petition, was signed by Felix Wai as her attorney-in-fact. A copy of the durable power of attorney was not attached to that nomination or filed separately in the proceeding. 3) Miranda Jew is also incapacitated. The petition does not disclose who represents her interest. The service list shows that notice was mailed to Quana Jew, Attorney-in-Fact for Miranda Jew, but this was not disclosed in the petition and nothing has been filed to verity · that Quana Jew is Miranda Jew's attorney-in-fact. 4) Furthermore, notice to Quana Jew was sent to "Arent Fox" - presumably her attorneys - not directly to Quana Jew. [CRC 7.51(a) and (b).] EXAMINER'S COMMENTS: Trustor's physician's letter dated 6/12/23 indicates that Trustor's date of birth as 7/30/37, which would make Trustor 86 years old, not 96, as stated in the petition. DO NOT FAX THE COURT UNLESS REQUESTED The hearing date must be shown on cover letters or courtesy copies of filed papers. 306465_2023_09_25 1 Examiner's Notes are emailed only to a party whose email address is provided on the pleading. EXHIBITB UNIFORM STATUTORY FORM POWER OF ATTORNEY (California Probate Code Section 4401) NOTICE: THE POWERS GRANTED BY THIS DOCUMENT ARE BROAD AND SWEEPING. THEY ARE EXPLAINED IN THE UNIFORM STATUTORY FORM POWER OF ATTORNEY ACT (CALIFORNIA PROBATE CODE SECTIONS 4400-4465). THE POWERS LISTED IN THIS DOCUMENT DO NOT INCLUDE ALL POWERS THAT ARE AVAILABLE UNDER THE PROBATE CODE. ADDITIONAL POWERS AVAILABLE UNDER THE PROBATE CODE MAY BE ADDED BY SPECIFICALLY LISTING THEM UNDER THE SPECIAL INSTRUCTIONS SECTION OF THIS DOCUMENT. IF YOU HAVE ANY QUESTIONS ABOUT THESE POWERS, OBTAIN COMPETENT LEGAL ADVICE. THIS DOCUMENT DOES NOT AUTHORIZE ANYONE TO MAKE MEDICAL AND OTHER HEALTH-CARE DECISIONS FOR YOU. YOU MAY REVOKE THIS POWER OF ATIORNEY IF YOU LATER WISH TO DO SO. I, ____,__;J=o=hn=--..,.W~at=·•~l=33=3~J=o=ne=s~S=tre=et~U=m=·t~l~l~Ol~S=an=-..:F=ran=c=isc=o~C=A'-"-"-9~41~0=9 appoint th.....A__v"""e=nu=e::....;S=an=--"F"""'ran=c=is=co.,_C=A=--=-.c9~4~1"'""18,.__ _ _ __ --'F::....;e=li=x_,W"""a=i-=,2=0=2'--4'- (name and address of the person appointed, or of each person appointed if you want to designate more than one) as my agent (attorney-in-fact) to act for me in any lawful way with respect to the following initialed subjects: TO GRANT ALL OF THE FOLLOWING POWERS, INITIAL THE LINE IN FRONT OF (N), AND IGNORE THE LINES IN FRONT OF THE OTHER POWERS. TO GRANT ONE OR MORE, BUT FEWER THAN ALL, OF THE FOLLOWING POWERS, INITIAL THE LINE IN FRONT OF EACH POWER YOU ARE GRANTING. TO WITHHOLD A POWER, DO NOT INITIAL THE LINE IN FRONT OF IT. YOU MAY, BUT NEED NOT, CROSS OUT EACH POWER WITHHELD. INITIAL: _ _ (A) Real property transactions. _ _ (B) Tangible personal property transactions. _ _ (C) Stock and bond transactions. _ _ (D) Commodity and option transactions. _ _ (E) Banking and other financial institution transactions. (F) Business operating transactions. _ _ (G) Insurance and annuity transactions. _ _ (H) Estate, trust, and other beneficiary transactions. (I) Claims and litigation. (J) Personal and family maintenance. (K) Benefits from social security, Medicare, Medicaid, or other governmental programs, or - - civil or military service. _ _ (L) Retirement plan transactions. M,(M) Tax matters. lf (N) ALL OF THE POWERS LISTED ABOVE. YOU NEED NOT INITIAL ANY OTHER LINES IF YOU INITIAL LINE (N). Pagt: I of 2 SPECIAL INSTRUCTIONS: ON THE FOLLOWING LINES YOU MAY GIVE SPECIAL INSTRUCTIONS LIMITING OR EXTENDING THE POWERS GRANTED TO YOUR AGENT. UNLESS YOU DIRECT OTHERWISE ABOVE, THIS POWER OF ATTORNEY IS EFFECTIVE IMMEDIATELY AND WILL CONTINUE UNTIL IT IS REVOKED. This power of attorney will continue to be effective even though I become incapacitated. STRIKE THE PRECEDING SENTENCE IF YOU DO NOT WANT THIS POWER OF ATTORNEY TO CONTINUE IF YOU BECOME INCAPACITATED. EXERCISE OF POWER OF ATTORNEY WHERE MORE THAN ONE AGENT DESIGN ATED If I have designated more than one agent, the agents are to act _ _ _ _ _ _ _ _ _ _ _ __ IF YOU APPOINTED MORE THAN ONE AGENT AND YOU WANT EACH AGENT TO BE ABLE TO ACT ALONE WITHOUT THE OTHER AGENT JOINING, WRITE THE WORD "SEPARATELY" IN THE BLANK SPACE ABOVE. IF YOU DO NOT INSERT ANY WORD IN THE BLANK SPACE, OR IF YOU INSERT THE WORD "JOINTLY," THEN ALL OF YOUR AGENTS MUST ACT OR SIGN TOGETHER. I agree that any third party who receives a copy of this document may act under it. A third party may seek identification. Revocation of the power of attorney is not effective as to a third party until the third party has actual knowledge of the revocation. I agree to indemnify the third party for any claims that arise against the third party because of reliance on this power of attorney. Signed this ____./~o__ day of -'et'f$.t'9=:, 20 2-I State of California County of 9gJ ~ c..t S'"'~ BY ACCEPTING OR ACTING UNDER THE APPOINTMENT, THE AGENT ASSUMES THE FIDUCIARY AND OTHER LEGAL RESPONSIBILITIES OF AN AGENT. CERTIFICATE OF ACKNOWLEDGMENT OF NOTARY PUBLIC State of California ) ) County of __________ ) On this _ _ _ day of - - ~ 20_ before me, _ _ _ _ _ _ _ _ (name of notary public), personally appeared _ _ _ _ _ (name of principal), personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to this instrument, and acknowledged that he or she executed it. _ _ _ _ _ _ _ _ (signature of notary public) NOTARY SEAL Page2 of 2 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of a0 tJ 0 t-_ ~ n<:. 1vJ ~ Seo ) before me, '?t-ttR ~ ,'-rr:t NDTAR Sent: Monday, September 18, 2023 9:46 AM To: Robert Wai Cc: Jorge Ramos; Chuck Adams; Hung, Melissa S. Subject: Whittier Trust [Caution • External Email. Do not click on links or open attachments unless you recognize the sender and know the content is safe.] Dear Robert, After reviewing the petition you sent me last Thursday afternoon, I went online to read the court documents regarding the Vybe litigation. We have considered Whittier Trust's ability to shepherd the active litigation and the lack of consensus among the remainder beneficiaries and reached the conclusion that we are unable to step in as successor trustee for your uncle's trust. I'll go ahead and cancel the Zoom meeting for this afternoon and apologize for any inconvenience this may cause. We certainly appreciate you thinking of us and we wish you the best going forward. Sincerely, Tom Thomas J. Frank, Jr., JD, TEP Executive Vice President Northern California Regional Manager •:.::::::, ❖- WhittierTrust 505 Montgomery Street, Suite 1200 San Francisco, CA 94111 T: 415.283.1846 525 Middlefield Road, Suite 110 Menlo Park, CA 94025 T: 650.609 .2301 tfrank@whittiertrust.com NOTICE: UNAUTHORIZED USE OR DISCLOSURE IS STRICTLY PROHIBITED This transmission (including any attachments) may contain sensitive information, privileged material (including material protected by the solicitor-client or other applicable privileges), or constitute non-public information. Use, dissemination, distribution, or reproduction of this transmission by unintended recipients is not authorized and may be unlawful. All email sent to or from the Whittier Trust Company email system is subject to archiving, monitoring and/or review by WTC personnel. 1 EXHIBITD This instrument prepared by: Jason D. Salomon, Esq. Harkavy Shainberg Kaplan PLC 6060 Poplar Avenue, Suite 140 Memphis, Tennessee 38119 (901) 866-5328 DURABLE GENERAL POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS that I, MARIA M. WAI, the undersigned, of Shelby County, Tennessee, do hereby make, constitute, and appoint FELIX H. WAI my true and lawful Attorney in Fact for me and in my name, place, and stead, on my behalt~ and for my use and benefit in accordance with the provisions set forth herein. If the Attorney in Fact named is unable or unwilling to serve, said Attorney in Fact shall be succeeded by HILLARY M. CLARK. lf HILLARY M. CLARK is unable or unwilling to serve, she shall be succeeded by TERENCE W. NG. 1. Durable Power. This Power of Attorney is specifically given pursuant to, and interpreted in accordance with, the provisions of the Uniform Durable Power of Attorney Act (Tenn. Code Ann.§ 34-6-101, et seq.). Accordingly, all Acts done by the Attorney in Fact pursuant to this Power of Attorney shall have the same effect and inure for my benefit and bind me and my successors in interest as if l personally performed said act. In addition, all acts done by my Attorney in Fact pursuant to this Durable Power of Attorney, during any period of disability or incapacity, shall have the same effect and inure to my benefit and bind me and my successors in interest as if I were competent and not disabled. 2. Revocation of Prior Documents. This Power of Attorney revokes all Powers of Attorney for financial affairs previously executed. 3. Powers Granted. This Power of Attorney is intended to be an unlimited general power of attorney, encompassing all real and personal property owned by me, or in which I have any interest, including tangible and intangible property. and in order to perform the duties of my Attorney in Fact the following powers, in addition to those granted under Tenn. Code Ann. § 34-6-109 which are incorporated herein by reference, are granted to my Attorney in Fact: A. To exercise or perform any act, power, duty, right, or obligation whatsoever that I now have, or may hereafter acquire the legal right, power, or capacity to exercise or perform, in connection with, arising from, or relating to any person, item, transaction, thing, business property, real or personal, tangible or intangible, or matter whatsoever; Initials B. To request, ask, demand, sue for, recover, collect, receive, and hold and possess all such sums of money, debts, dues, commercial papers, checks, drafts, accounts, deposits, legacies, bequests, devises, notes, interests, stock certificates, bonds, dividends, certificates of deposit, annuities, pension and retirement benefits, insurance benefits and proceeds, any and all documents of title, choses in action, personal and real property, tangible and intangible property and property rights, and demands whatsoever, liquidated or unliquidated, as now are, or shall hereafter become, owned by, or due, owing, payable, or belonging to, me or in which I have or may hereafter acquire interest, to have, use, and take all lawful means and equitable and legal remedies, procedures, and writs in my name for the collection and recovery thereof, and to adjust, sell, compromise, and agree for the same, and to make, execute and deliver for me, on my behalf, and in my name, all endorsements. acquittances, releases, receipts, or other sufficient discharges for the same; C. To lease, purchase, sell, exchange, and acquire, and to agree, bargain, and contract for the lease, purchase, sale, exchange, and acquisition of, and to accept, take, receive, and possess any real or personal property whatsoever, tangible or intangible, or interest therein, on such terms and conditions, and under such covenants, as said Attorney in Fact shall deem proper; D. To maintain, repair, improve, manage, insure, rent, lease, sell, convey, subject to liens, mortgage, subject to deeds of trust, and hypothecate, and in any way or manner deal with all or any part of any real or personal property whatsoever, tangible or intangible, or any interest therein, that I now own or may hereafter acquire, for me, in my behalf, and in my name and under such terms and conditions, and under such covenants, as said Attorney in Fact shall deem proper; E. To conduct, engage in, and transact any and all lawful business of whatever nature or kind for me, on my behalf, and in my name; F. To make, receive, sign, endorse, execute, acknowledge, deliver and possess such applications, contracts, agreements, options, covenants, conveyances, deeds, security agreements, bills of sale, leases, mortgages, assignments, insurance policies, bills of lading, warehouse receipts, documents of title, bills, bonds, debentures, checks, drafts, bills of exchange, letters of credit, notes, stock certificates, proxies, warrants, commercial papers, receipts, withdrawal receipts and deposit instruments relating to accounts or deposits in, or certificates of deposit of, banks, savings and loan or other institutions or associations, proofs of loss, evidences of debts, releases, and satisfaction of mortgages, liens, judgments, security agreements and other debts and obligations and such other instruments in writing of whatever kind and nature as may be necessary or proper in the exercise of the rights and powers herein granted; G. To establish and fund a trust to provide for my health, support and care should the Attorney in Fact determine that I am not capable of managing my financial affairs. i VV (,U Initials Said trust assets shall be payable to my estate at my death or to any Revocable Living Trust established by me during my lifetime. Notwithstanding the above, in the case of a trust created pursuant to 42 U.S.C. § 1396p(d)(4)(B) (a Miller Trust) the trust assets shall be payable at my death according to the terms of the trust; H. To transfer any property in which I have an ownership interest to any trust created by me which contains provisions for my care and support including a Revocable Living Trust; I. To exercise any incidents of ownership on any life insurance policies, employee benefit plans, annuity, retirement account or otherwise owned by me; J. To change the beneficiary designations on any death benefits payable on account of my death from any life insurance policy, employee benefit plan, annuity, retirement account or otherwise, so long as same is changed to be payable to my estate or to any trust which l have established; K. To change, add or delete any right of tenancy by the entirety or joint tenancy with right of survivorship designation or pay on death designation on any property, real or personal, to which I hold title, alone or with others; L. To renounce or disclaim (as defined in I.R.C. § 2518) any property or interest in property or powers to which I may become entitled, whether by gift or testate or intestate succession; M. To exercise any right or refuse, release or abandon any right to claim an elective share in any estate or under any Will; N. To have free and private access to any safe deposit box in my name, alone or with others, in any bank, including the authority to have it drilled, with full right of deposit and withdrawal therefrom and to give full discharge therefor; 0. To execute on my behalf additional powers of attorney as may be specifically required by a financial institution which requires the utilization of a specific form power of attorney in order to allow the Attorney in Fact to transact business. This includes, but is not limited to, form powers of attorney supplied by brokerage companies and banking institutions; P. To serve as my Representative Payee for the purposes ofreceiving Social Security benefits. The Attorney in Fact may collect all benefits payable to or for my benefit by any governmental agency or body, such as Supplemental Security Income (SSI), Medicaid, Medicare, and Social Security Disability Insurance (SSDI). The Attorney in Fact shall have the full power to represent me and deal in all ways necessary concerning rights or benefits initials payable to me by any governmental agency including Supplemental Security Income (SSI), Medicaid, and Social Security Disability Insurance (SSDI); Q. To represent me in all tax matters and proceedings before any agent or officer of the Internal Revenue Service, state and local authorities and in any court, for all periods. This includes, but is not limited to, the power to prepare, sign, and file all federal, state, and local tax returns including income, gift, FICA, and payroll tax returns on my behalf and prepare, sign, and file claims for refunds, requests for extensions of time to file returns or pay taxes, extensions and waivers of applicable periods oflimitation, and protests and petitions to administrative agencies or courts (including the United States Tax Court); R. To initiate or continue any gifting program and thereby make gifts or other transfers without consideration to the group composed of my issue or any charitable organization, including the power to gift or otherwise spend down my estate for Medicaid eligibility and planning, as limited as follows: 1. Gifts to my issue or any charitable organization are permitted, so long as the gifts are within the amounts excludable from taxable gifts by I.R.C. § 2503(b), as amended, and so long as the gifts made by the Attorney in Fact to himself or herself are not in excess of the maximum amount which does not constitute a lapse of a power of appointment under I.R.C. § 204l(b)(2), as amended (the greater of $5,000 or 5% of the assets out of which the exercise of the power could have been satisfied); n. Gifts to my issue or any charitable organization in excess of the 1.R.C. § 2503(b) exclusion may be made for the purpose of implementing estate planning and/or estate and inheritance tax savings techniques. Gifts in excess of the I.R.C. § 2503(b) exclusion shall require the approval of an attorney, certified public accountant, or corporate fiduciary not under the control of the Attorney in Fact or the beneficiary of the gift within the meaning ofl.R.C. § 672(c); S. To access, use and control my digital devices; including, but not limited to any computers, storage devices; mobile telephones/smartphones, and/or tablets I own and/or lease; T. To access, modify, delete, control, and transfer my digital assets, including, but not limited to my email (including the content of my email), email accounts, digital photographs, digital videos, software licenses, social network accounts, file sharing accounts, financial accounts, domain registrations, web hosting accounts, on-line storage accounts, on-line tax preparation soflware, on-line retail stores, frequent flyer programs (and ' MtU) Initials other bonus programs), and similar digital items which currently exist or exist in the future as technology develops; and U. To do, take, and perform all and every act and thing whatsoever requisite, proper, or necessary to be done, in the exercise of any of the rights and powers herein granted, as fully to alJ intents and purposes as I might or could do if personally present, with full power of substitution or revocation, hereby ratifying and confirming all that said Attorney in Fact, or his or her substitute or substitutes, shall lawfully do or cause to be done by virtue of this power of attorney and the rights and powers herein granted. 4. Interpretation of Instrument. This instrument is to be construed as an unlimited general power of attorney. The enumeration of specific items, rights, acts, or powers herein is not intended, nor does it, limit or restrict, and is not to be construed or interpreted as limiting or restricting, the general powers herein granted to said Attorney in Fact. 5. Assets Covered. It is intended by the granting of this Power of Attorney that same cover all assets of the principal, whether presently existing, or hereinafter acquired, and all construction of this instrument shall be as an unlimited general power of attorney. 6. Commencement and Term of Financial Powers. The rights, powers, and authority of this Power of Attorney herein granted shall commence upon the date of the execution of this document. 7. Termination of Powers. This Power of Attorney shall remain in full force and effect until this Power of Attorney is properly revoked or until the death of the principal. Provided that, the revocation of this Power of Attorney sha11 only be accomplished by the execution of a written instrument clearly and specifically revoking this Durable Power of Attorney duly signed by the principal, properly notarized, and personally delivered to the Attorney in Fact. Provided that, if the rights, power and authority of this Power of Attorney commenced upon the date that I became disabled or incapacitated, as determined by a physician or psychologist, then with respect to any subsequent attempted revocation of this Power of Attorney, my Attorney in Fact shall not recognize any such revocation unless same is accompanied by and/or supported with an Affidavit of a physician or psychologist meeting the same qualifications as set forth above which states that I am no longer incapacitated or disabled and that I am capable of managing my own estate and financial and personal affairs. My death or the revocation of this Power of Attorney does not revoke or terminate the Power of Attorney established herein as to the Attorney in Fact or other person who, without actual (as opposed to constructive) knowledge of my death or the revocation of said Power of Attorney, acts in good faith under the power. Any action so taken, unless otherwise specifically invalid or unenforceable, binds my successors in interest. THIS POWER OF ATTORNEY IS NOT VOID BY REASON OF THE MERE LAPSE OF TIME. Initials 8. Reliance by Third Party. As to acts taken by any parties in good faith reliance upon this Power of Attorney, an Affidavit executed by the Attorney in Fact under this Power of Attorney stating that my Attorney in Fact did not have, at the time of the exercise of the power, actual (as opposed to constructive) knowledge of the termination of this Power of Attorney or the revocation of the authority or of my death, is conclusive proof of the interpretation and non-termination of the power at that time. No person dealing with the Attorney in Fact shall be required to fmiher inquire as to the authority of the Attorney in Fact or the disposition of any assets or funds or documents delivered to the Attorney in Fact. 9. Court Enforcement. My Attorney in Fact is specifically authorized to initiate litigation on my behalf, as allowed by law, against any person failing or refusing to follow the instructions of my Attorney in Fact who is acting pursuant to this Power of Attorney. My Attorney in Fact is specifica1ly authorized to employ legal counsel in connection with such litigation, as necessary to seek a declaratory judgment interpreting this power of attorney, a mandatory injunction requiring compliance with the instructions of my Attorney in Fact, damages and any other remedies available at law. If such litigation is initiated, my Attorney in Fact shall seek reimbursement