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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Jul-26-2013 3:51 pm
Case Number: PES-11-294526
Filing Date: Jul-26-2013 3:50
Filed by: ELIZABETH FONG
Juke Box: 001 Image: 04142637
GENERIC PROBATE PLEADING
THE ESTATE OF ALFRED JOHN O'CONNOR
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Jon R. Vaught, Esq., SB#114590
Basil J. Boutris, Esq., SB#122758
VAUGHT & BOUTRIS, LLP
Attorneys at Law
80 Swan Way, Suite 320
Oakland, CA 94621
Tel: (510) 430-1518
FAX: (510) 382-1166
Email: jon@vaughtboutris.com
David Brillant, SBN 220895
Erica Shepard, SBN 255883
BRILLANT LAW FIRM,
A Professional Corporation
2540 Camino Diablo, Suite 200
Walnut Creek, CA 94597
Tel. (925) 274-1400
FAX (925) 274-9696
Email: dbrillant@pbrillantlaw.com
Attorneys for Contestant PATRICIA RICE
San Francisco County ‘Superior Court
JUL 26 2013
CLERK OF THE COURT
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Estate of:
ALFRED JOHN O’CONNOR
PATRICIA RICE, CAROL BURDETTE,
JOANNE GENEVISH, JAMES
HENDERSON and JOHN GERNS
Contestants,
vs.
DOUGLAS R. JOHNSON
Respondent.
Case No.: PES-11-294526
AMENDED CONTEST AND OBJECTION
TO DOUGLAS R. JOHNSON’S AMENDED
PETITION FOR PROBATE OF WILL
Date: September 24, 2013
Time: 9:00 a.m.
Dept: 204
PATRICIA RICE, contests the validity of the December 4, 2010 typewritten testamentary
instrument of Alfred John O’Connor and challenges the admission of the document to probate on
the following grounds:
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AMENDED CONTEST AND OBJECTION TO DOUGLAS R. JOHNSON’S AMENDED PETITION FOR.
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I BACKGROUND FACTS
1. Alfred John O’Connor, hereinafter referred to as Decedent, was in a long-term
relationship with his domestic partner Martin “Tom” Schram. Tom and Decedent both executed)
mutual revocable living trusts whereby upon the death of the first partner, after some specific and
general gifts, the residuary estate would be placed in trust for the benefit of the surviving partner.
See Tom Schram’s Trust attached hereto as Exhibit A. The relevant provision is set forth in
Article VIII, Section E.
2. In addition to the trust for the benefit of the surviving domestic partner, the
mutual trusts also contained a special lifetime and testamentary power of appointment over the
property contained in the trust for the benefit of the surviving partner. (Article IX, Section D of
Tom Schram’s Trust attached hereto as Exhibit A).
3. Pursuant to the terms of the Martin Francis Schram Trust (“Schram Trust”),
following the death of Decedent, the heirs of Tom’s estate would receive the balance of the trust!
estate in equal shares (Article VIII, Section F of Tom Schram’s Trust attached hereto as Exhibit!
A).
4. Tom died on February 2, 2006. The only asset currently held in the Schram Trust
is an undivided one-half interest in real property at 536 Moraga Street in San Francisco. See
Respondent’s Request for Judicial Notice.
IL. PRELIMINARY ALLEGATION
5. Decedent died on April 15, 2011. At the time of death, Decedent was a resident
of the City and County of San Francisco, California.
6. On April 26, 2011, Douglas R. Johnson filed in this court a typewritten
testamentary instrument dated December 4, 2010, together with a petition requesting that the
document be admitted to probate as the Decedent’s last will.
7. Within the December 4, 2010 typewritten instrument, Decedent allegedly
exercised his power of appointment over the Schram Trust and appointed the entire Schram Trust!
to respondent Douglas R. Johnson. See Section 1.5 of Decedent’s Will attached to Respondent’s|
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AMENDED CONTEST AND OBJECTION TO DOUGLAS R. JOHNSON’S AMENDED PETITION FOR.
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Petition for Probate.
8. On July 22, 2011, the beneficiaries of the Schram Trust, namely, Contestant
Patricia Rice, Caro] Burdette, Joanne Genevish, James Henderson, and John Gerns, filed a
contest and grounds for objection to Respondent’s petition for probate of will as persons
interested in Decedent’s estate under Probate Code §48.
9. On March 15, 2013, all of the Schram heirs except Contestant, Patricia Rice, filed
a dismissal of their will contest.
10. On February 8, 2013, Douglas R. Johnson filed in this court an Amended Petition
for Probate of Will and for Letters of Administration with Will Annexed requesting that three’
holographic wills of Decedent dated December 4, 2010, December 14, 2010 and March 9, 2011,
be admitted to probate with the previously filed typewritten testamentary instrument dated
December 4, 2010. Respondent argues that all of the testamentary instruments taken together
make up Decedent’s last will.
11. Petitioner objects to Respondent’s legal contention that the typewritten instrument
and the holographic wills dated December 4, 2010, December 14, 2010 and March 9, 2011 make
up one complete will for Decedent. The documents are not codicils to the typewritten instrument
as numerous provisions contradict, including the fact that none of the holographic wills exercise
Decedent’s testamentary power of appointment over the Schram Trust.
12. Contestant is one of the heirs of Tom Schram whose interest in the Schram Trust
may be impaired or defeated by Decedent’s probate proceeding. As a result, Contestant is an|
“interested person” as defined in Probate Code section 48.
13. The names, ages, and residences of decedent’s heirs, so far as reasonably
ascertainable by the Contestant is as follows:
Douglas R. Johnson Michael Cresta
274-A Red Rock Way 1801 Village East Drive
San Francisco, CA 94131 Petaluma, CA 94752
Petitioner (Adult) Adult Nephew of Al O’Connor
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Marie Cresta Patterson
3021 Mar Way
Santa Rosa, CA 95403
Adult Niece of Al O’Connor
Robert Cresta, Jr.
550-A Weber Lane
Santa Rosa, CA 95407
Adult Nephew of Al O’Connor
McGregor Thibodeaux
10 Los Ranchitos
Walnut Creek, CA 94507
Adult friend and successor executor
John Gerns
210 Cypress Hollow
Bluffton, SC 29909
Adult nephew of Tom Schram
Joanne Genevish
1601 Fawn Lilly Ct.
Rockville, MD 20853
Adult niece of Tom Schram
Patricia Rice
3216 Lake Pointe Dr.
Belmont, NC 28012
Adult niece of Tom Schram
Jeffrey Cresta
P.O. Box 1897
Moose Jaw, Saskatchewan
CANADA, S6H7NO
Adult Nephew of Al O’Connor
Sidney Modell
274-A Red Rock Way
San Francisco, CA 94131
Adult Friend and successor executor,
Roger S. Gross, Esq.
317 Noe Street
San Francisco, CA 94114
Special Administrator
James Henderson
6321 Albatross Drive
New Bern, NC 28560
Adult nephew of Tom Schram
Carol Burdette
320 Delvin Lane
Hillsborough, NC 27278
Adult niece of Tom Schram
FIRST CAUSE OF ACTION
CONTEST OF THE WILL BASED ON UNDUE INFLUENCE
14. Contestant incorporates by reference paragraphs 1 through 13 of this contest and
objection as if fully set forth in this cause of action.
15. Contestant is informed and believes and thereon alleges, inter alia, that
Respondent unduly influenced Decedent to execute the December 4, 2010 typewritten instrument
exercising the special testamentary power of appointment. But for this inappropriate and illegal
conduct committed by Respondent onto Decedent, the heirs of Tom Shram would be the
recipients of the trust created for their ultimate benefit upon the death of Decedent.
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2010 typewritten instrument is an invalid document because it was made as a result of the undue’
influence of Douglas R. Johnson in that:
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16. Contestant is informed and believes and thereon alleges that the December 4,
(a) Respondent was the paid care giver of Decedent, and performed health
and social services including, but not limited to cleaning Decedent’s home, providing
transportation, and other tasks of dialing living. During this same period of time that
Respondent was providing health and social services, Decedent’s mental health was in|
decline as he was dealing with constant depression. Decedent put his trust and
confidence in Respondent as a result of this relationship. During this same period of|
time, Respondent isolated Decedent from his close friends and relatives. The isolation
was the result of Respondent’s, and his agents, methods of neglect, disapproval and
emotional and mental manipulation. These acts caused Decedent to withdraw himself|
from friends and family.
(b) During the same period of time, by reason of the relationship of Decedent!
with Respondent, Respondent was able to exert control and influence over the mind and
actions of Decedent to such a point that Decedent was no longer capable of exercising his
own conviction or desire with regard to his actions or thoughts, but rather, because of the
coercion and pressure brought on him by Respondent, Decedent’s convictions or desires
became the conditions or desires imposed on him by Respondent.
(c) During this same period of time, while Decedent was under Respondent’s
undue influence, Respondent suggested the contents of the December 4, 2010 typewritten
instrument submitted for probate to this court by Respondent, arranged for execution of|
the document, and caused Decedent to execute the document. At the time the document
was executed, Decedent was wholly under the influence of Respondent and the document
does not represent the free and voluntary act of Decedent.
WHEREFORE, Contestant prays for relief as set forth below.
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SECOND CAUSE OF ACTION
CHALLENGE TO DECEDENT’S EXERCISE OF THE POWER OF APPOINTMENT
BASED ON UNDUE INFLUENCE
17. Contestant incorporates by reference paragraphs 1 through 13 of this contest and
objection as if fully set forth in this cause of action.
18. Contestant is informed and believes and thereon alleges that Respondent unduly
influenced Decedent to exercise his testamentary power of appointment over the assets of the
Schram Trust in the December 4, 2010 typewritten instrument, validity which is presently
unknown. But for this inappropriate and illegal conduct committed by Respondent onto
Decedent, the heirs of Tom Schram would be the recipients of the trust created for their ultimate
benefit upon the death of Decedent.
19. Contestant is informed and believes and thereon alleges that Decedent’s exercise
of his special and testamentary power of appointment that appoints all of the property in Tom
Shram’s trust to Respondent is invalid because it was made as a result of the undue influence of|
Douglas R. Johnson in that:
(a) Respondent was the paid care giver of Decedent, and performed health and social
services including, but not limited to cleaning Decedent’s home, providing transportation, and
other tasks of dialing living. During this same period of time that Respondent was providing,
health and social services, Decedent’s mental health was in decline as he was dealing with
constant depression. Decedent put his trust and confidence in Respondent as a result of this
relationship. During this same period of time, Respondent isolated Decedent from his close
friends and relatives. The isolation was the result of Respondent’s, and his agents, methods of|
neglect, disapproval and emotional and mental manipulation. These acts caused Decedent to
withdraw himself from friends and family.
(b) During the same period of time, by reason of the relationship of Decedent with
Respondent, Respondent was able to exert control and influence over the mind and actions of
Decedent to such a point that Decedent was no longer capable of exercising his own conviction
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or desire with regard to his actions or thoughts, but rather, because of the coercion and pressure’
brought on him by Respondent, Decedent’s convictions or desires became the conditions or
desires imposed on him by Respondent.
(c) During this same period of time, while Decedent was under Respondent’s undue
influence, Respondent suggested the contents of the December 4, 2010 typewritten instrument
submitted for probate to this court by Respondent, arranged for execution of the document, and
caused Decedent to execute the document. At the time the document was executed, Decedent
was wholly under the influence of Respondent and the document does not represent the free and
voluntary act of Decedent.
WHEREFORE, Contestant prays for relief as set forth below.
THIRD CAUSE OF ACTION
INVALID WILL AS A MATTER OF LAW - PROB. CODE SECTION 21360 ET SEQ.
20. Contestant incorporates by reference paragraphs | through 13 of this contest and
objection as if fully set forth in this cause of action.
21. Contestant is informed and believes and thereon alleges that the December 4,
2010, typewritten instrument exercising Decedent’s testamentary power of appointment over the
Schram Trust and appointing all of the property to Respondent is invalid because, at the time the
testamentary instrument was executed, Respondent was a care custodian of Decedent, as that
term is defined under Prob. Code §21362, and the Decedent was a dependent adult as that term is
defined in Prob. Code §21366.
22. Respondent meets the statutory definition of a “care custodian” as a result of the
health and social services he provided to Decedent. Those services Respondent provided to
Decedent included: cleaning Decedent’s home, providing transportation to Decedent, shopping
for and with Decedent, cooking for Decedent, and companionship.
23. At the time Respondent was providing the services set forth in this Amended
Contest, Decedent was a dependent adult as that phrase is defined in Probate Code section
21366. Decedent was over the age of 65 years and satisfied either or both of the requirements
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under Probate Code section 21366(a)(1) and (a)(2).
24. Asa result of Decedent being a dependent adult pursuant to Probate Code section
21366 and Respondent being a care custodian as set forth in Probate Code section 21362, the
December 4, 2010, typewritten instrument is presumed to be the product of fraud or undue
influence by Respondent onto Decedent.
WHEREFORE, Contestant prays for relief as set forth below.
FOURTH CAUSE OF ACTION
REVOCATION BY DESTRUCTION OF WILLS — PROB. CODE SECTION 6120(b)
25. Contestant incorporates by reference paragraphs 1 through 13 of this contest and
objection as if fully set forth in this cause of action.
26. Contestant is informed and believes and thereon alleges that Decedent sought to
invalidate his will because he did not want Douglas Johnson or Sidney Modell to have any
involvement in his life or estate. Decedent told multiple witnesses of this intent.
27. Contestant is informed and believes and thereon alleges that Decedent called his
estate attorney, John Bugatto, to demand his will and trust be destroyed and Mr. Bugatto told
him to destroy it, which he did.
28. “Contestant is informed and believes and thereon alleges that Decedent executed
the testamentary instruments in duplicate and Mr. Douglas had possession of one copy of the
duplicate documents.
29. Contestant is informed and believes and thereon alleges that Decedent destroyed
his copy of the testamentary instruments with the intent and for the purpose of revoking it and
the wills on file with this Court are the copies given to Mr. Johnson.
WHEREFORE, Contestant prays for relief as set forth below.
Ii
Mil
Mil
FIFTH CAUSE OF ACTION
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DECEMBER 4, 2010 TYPEWRITTEN INSTRUMENT WAS PROPERLY REVOKED
BY SUBSEQUENT WILL — PROB. CODE SECTION 6120
27. Contestant incorporates by reference paragraphs | through 13 of this contest and
objection as if fully set forth in this cause of action.
28. In the alternative, Patricia objects to the probate of the December 4, 2010
typewritten instrument, validity which is presently unknown, because Decedent revoked this
document by executing the later holographic wills dated December 4, 2010, December 14, 2010,
and March 9, 2011 containing provisions wholly inconsistent with the terms of the December 4,
2010 typewritten instrument. Cal. Prob. Code 6120(a).
29. The holographic wills revoked the December 4, 2010 typewritten instrument
offered for probate by the Respondent as the provisions of the subsequent document are
inconsistent and in substantial conflict with the provisions of the document propounded by the
Respondent.
(a) The December 4, 2010 typewritten instrument exercises Decedent’s
testamentary power of appointment; distributes the entirety of Decedent’s property to the
trustee of the 1997 Alfred John O’Connor Revocable Trust; Respondent is nominated as
executor with McGregor Thibeaux [sic] and Sidney Model [sic] as successor co-
executors; and the document is witnessed by John and Maria Bugatto. A true and correct
copy of the December 4, 2010 typewritten instrument is attached to Respondent’s
Amended Petition for Probate.
(b) | The December 4, 2010 holograph will identified as the last will and
testament of Alfred John O’Connor does not exercise Decedent’s testamentary power of|
appointment; makes an outright gift of 536 Moraga Street including all its contents to
Respondent; makes an outright gift of Decedent’s automobile to Respondent; makes
specific gifts of CDs in the amounts of $25,000 to Decedent’s three nephews and one
niece; Respondent is nominated as executor with Nicholas Andrade and Sydney Moddell
[sic] as second and third choice; and the document is witnessed by Gregor Thebodeaux
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\NSERVER I\ProLawFiles\Documents\1034 .001\Pleadings\15611 docand Nicholas Andrade. A true and correct copy of the December 4, 2010 typewritten
instrument is attached to Respondent’s Amended Petition for Probate.
(c) | The December 14, 2010 holograph will identified as the last will and
testament of Alfred J. O’Connor does not exercise Decedent’s testamentary power of|
appointment; makes an outright gift of 536 Moraga Street including all its contents to
Respondent; makes no specific mention of Decedent’s automobile; makes specific gifts
of CDs in the amount of $25,000 to Decedent’s three nephew and one niece; makes a
specific gift of a CD for $100,000 to Gregor Thebodeaux; Respondent and/or Gregor!
Thebodeaux [sic] is nominated as executor with Sydney Moddell [sic] as second choice
and Jeanne Handley as third choice.
(d) The March 9, 2011 holograph will identified as the Trust and Will for
Respondent, does not exercise the power of appointment and gives Moraga Street, all
contents “there-in” [sic] plus the Toyota Corolln [sic] to Respondent.
30. Decedent’s holographic wills, revoked the December 4, 2010 typewritten
instrument. Cal. Prob. Code 6120(a).
No other persons that these heirs and devisees are known to be interested in the
testamentary instruments of decedent.
WHEREFORE, contestants requests judgment as follows:
1. For an order, decree and judgment invalidating the December 4, 2010 typewritten
instrument;
2. For an order, decree and judgment invalidating the special testamentary power of
appointment that purportedly appoints all of the property in Tom Schram’s trust to
Respondent;
3. For an order, decree, and judgment invalidating those provisions of the December
4, 2010 typewritten instrument that purport to make a gift to Respondent;
4. OR in the alternative for an order, decree and judgment that the December 4, 2010.
typewritten instrument was revoked by Decedent;
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AMENDED CONTEST AND OBJECTION TO DOUGLAS R. JOHNSON’S AMENDED PETITION FOR
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Code sections 21380(d) and 1002; and
6. For any other relief that the Court considers proper.
Date: July 26, 2013
Respectfully submitted,
BRILLANT LAW FIRM
Erica Shepard
Attorneys for Contestant PATRICIA RICE
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VERIFICATION
I, Patricia Rice, the petitioner in this matter, declare that I have read the Amended
Contest and Objection to Douglas R. Johnson’s Amended Petition for Probate of Will and know
its contents, which are true to my own knowledge except for those matters stated on information
and believe, and as to those matters I believe them to be true.
I declare under the penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Dated:¢ pubs £6, 20/3 Soticeta he ce
Patricia Rice
VIA Fay
VW
VERIFICATION
CAUSERS\PATAPPDATA\LOCALAMICROSOFTNWINDOWS\TEMPORARY INTERNET FILES\CONTENT IES\YSRORW2\15611.DOC DOCXEXHIBIT AATTACHMENT A
THE
MARTIN FRANCIS SCHRAM
REVOCABLE LIVING TRUSTTABLE OF CONTENTS
ARTICLE I. RECEIPT OF PROPERTY AND
CHARACTER OF TRUST ESTATE... eee es
ARTICOE TT DESCRIPTION OF THE SETTCOR'S PANMILY ee
ARTICLE III. ’ ACCEPTANCE OF TRUST BY THE TRUSTEE ...... ye
ARTICLE IV. ADDITIONAL PROPERTY .... 0... 00.00.0000 .
ARTICLE V. RIGHTS OF REVOCATION AND AMENDMENT
BY MARTIN FRANCIS SCHRAM .........-...0...
A. REVOCATION BY THE SETTLOR .. sea
B. AMENDMENT BY THE SETTLOR .
C. INCAPACITY OF THE SETTLOR ...... .
D, DEATH OF THE SETTLOR ............... ae
ARTICLE VI. DISTRIBUTION OF INCOME AND-PRINCIPAL
DURING THE LIFETIME OF MARTIN FRANCIS
SCHRAM 2... eee eens
A. DISTRIBUTION OF NETINCOME ............
B, ADDITIONAL DISTRIBUTIONS OF PRINCIPAL
BASED ON ASCERTAINABLE STANDARD ......
C. ADDITIONAL DISTRIBUTIONS OF INCOME
AND PRINCIPAL BASED ON ASCERTAINABLE
STANDARD DURING INCAPACITY ...........
ARTICLE Vil. INCAPACITY OF MARTIN FRANCIS SCHRAM .......
ARTICLE Vill. DISTRIBUTION OF TRUST INCOME AND
PRINCIPAL FOLLOWING THE DEATH OF
MARTIN FRANCIS SCHRAM ......0.. 000000000
A. PAYMENT OF TAXES AND ADMINISTRATION
EXPENSES; NOTIRICATION OF CREDITORS .....
B. DISPOSITION OF SPECIFIC ITEMS OF
TANGIBLE PERSONAL PROPERTY BY LETTER
OF INCORPORATION |... 0.0... eee ees
C. DISTRIBUTION OF REMAINING TANGIBLE
PERSONAL PROPERTY ................00.TABLE OF CONTENTS - CONTINUED
D. INDIVIDUAL PECUNIARY DISTRIBUTIONS ..:..
E. DISPOSITION OF REMAINING .
TRUST ESTATE FOR THE BENEFIT
OR ALFRED JOHN-O'CONNOR.
~ ARTICLE IX,
ARTICLE X.
ARTICLE XI. °
F. DISPOSITION OF REMAINING
TRUST ESTATE FOLLOWING THE DEATH
OF ALFRED JOHN O'CONNOR ..........-.06
ADMINISTRATION OF THE ALFRED JOHN O’CONNOR
TRUST octet rete
A. DISTRIBUTION OF NET INCOME BASED ON
ASCERTAINABLE STANDARD .........-0055
B. ADDITIONAL DISTRIBUTIONS OF PRINCIPAL
BASED ON ASCERTAINABLE STANDARD ......
C. INCAPACITY . bey
D. SPECIAL LIFETIME ‘AND TESTAMENTARY.
POWER OF APPOINTMENT ..............0.
E. DISPOSITION OF REMAINING :
TRUST ESTATE 2.0... eee eee
‘TRUSTEE PROVISIONS ....... 0.000. c eee euee
APPOINTMENT OF SUCCESSOR TRUSTEE .......
COMPENSATION OF THE TRUSTEE ..........
BOND WAIVER AND JUDICIAL ACCOUNTING ...
RESIGNATION OF THE TRUSTEE ............
REMOVAL OF THE TRUSTEE .,,,..........
PROCEDURE FOR APPOINTMENT OF
ADDITIONAL SUCCESSOR TRUSTEES .........
RELEASE OF THE TRUSTEE
Qo Bmvom>
“POWERS AND DUTIES OF THE TRUSTEE ..........
THE PRUDENT PERSON RULE..............
ADDITIONAL POWERS AND DUTIES .........
GENERATION-SKIPPING TRANSFER
TAX POWERS AND DUTIES............0005
SPECIFIC INSTRUCTIONS REGARDING
SUBCHAPTER S STOCK «0.0.0... 20.00.00
9 aM>THE
MARTIN FRANCIS SCHRAM
REVOCABLE LIVING TRUST
This Trust Agreement is made and executed in duplicate on this theZ ad day of
. » 1997, by and between Martin Francis Schram (also known as Marti 39
chram, M. F,
chram, Martin Francis Th mas-Schram, anid Thomas Schram), a resident of
the-City of San Francisco, San Francisco County, California, hereinafter referred to as "the
Settlor," and Martin Francis Schram hereinafter teferred to as "the Trustee." This Trust
ARTICLE I,
RECEIPT OF PROPERTY
CHARACTER OF TRUST ESTATE
All property described in Schedule "A" shall consist of the Seitlor's Separate property,
It is the Settlor’s intention that all such property (transferred to the Trust created hereunder and
the proceeds thereof shall continue to retain its character as Separate property during the Settlor’s
lifetime, subject, however, to the terms and conditions of this Trust Agreement,
ARTICLE I.
DESCRIPTION OF THE SETTLOR’S FAMILYARTICLE IM.
ACCEPTANCE OF TRUST BY THE TRUSTEE
The Trustee accepts such title to the Trust-Estate as is conveyed or transferred to the
Trustee. hereunder, without liability or responsibility for the condition or validity of such title
with the understanding that the Trust Estate has been or will be conveyed or transferred to the
Trustee, in trust, with power of sale, for the uses and purposes and upon the Trust terms herein
provided.
P
ARTICLE IV,
ADDITIONAL PROPERTY
So long as this Trust Agreement remains unrevoked, any person may add to the Trust
additional property acceptable to the Trustee, by making the proceeds of insurance policies
payable to the Trustee, or by transferring property to the Trustee by deed, assignment,
conveyance, gift, bequest, or devise.
In the event any transfer of additional property is made while the Settlor is alive, the
transferor of such property shall designate in writing to the Trustee whether the property in
question shal! constitute the separate property of the Settlor, In the event no such designation
is obtained, such property shall be presumed to be the separate property of the Settlor.
ARTICLE VY.
RIGHTS OF REVOCATION AND AMENDMENT
BY MARTIN FRANCIS.SCHRAM
During the lifetime of Martin Francis Schram, he specifically reserves and the Trustee
specifically grants to him the following rights as hereinafter set forth;
A. REVOCATION BY THE SETTLOR, The Settlor may at any time revoke this
Trust, in whole or in part, by an instrument in writing signed by the Settlor and
delivered to the Trustee. In such event, the Trustee shall deliver promptly to the
Settlor or the Settlor's designee all or the designated portion of the Trust’s assets,
In the event that this Trust is revoked entirely or with Tespect {0 a major portion
of the Trust’s assets, the Trustee shall be entitled to retain sufficient assets
reasonably necessary to secure payment of Habilities lawfully incurred by the
Trustee in the administration of the Trust, including Trustee’s fees, unless theSettlor indemnifies the Trustee to the Trustee’s satisfaction against loss or
expense,
AMENDMENT BY THE SETTLOR. The Settlor may at any time amend any of
the terms of this Trust by an instrument in writing signed by the Settlor delivered
to the Trustee; provided, however, that the duties, powers and responsibilities of
the Trustee shall not be substantially altered or amended without the Trustee’ s
written consent,
INCAPACITY OF THE SETTLOR. The powers of the Settlor to revoke or
amend this Trust are personal to the Settlor and shall not be exercisable if the
Settlor is incapacitated, as defined in Article XII Paragraph B of this Trust
Agreement, or on the Settlor’s behalf by any Conservator, Agent, Attorney in
Fact, or other person; except that revocation or amendment in accordance with
this Article may be authorized, after notice to the Trustee, by the court that
appoints-a Conservator for the Settlor.
DEATH OF THE SETTLOR. On the death of the Settlor, the Trust may not be
amended, revoked, or terminated except by distributions permitted under this
Trust Agreement.
ARTICLE VI.
DISTRIBUTION OF INCOME AND PRINCIPAL
DURING THE LIFETIME OF MARTIN FRANCIS SCHRAM
During the lifetime of Martin Francis Schram, he specifically reserves and the Trustee
specifically grants to him the following rights to trust income and principal as hereinafter set
DISTRIBUTION OF NET INCOME, Subject to Paragraph C of this Article, the
Settlor shall have the right, from time to time, to direct the Trustee in writing to
pay to the Settlor or apply for the Settlor’s benefit such amounts from the net
income of the Trust Estate as the Settlor may designate, up to the whole thereof,
Any income not distributed shall be added to principal. The Trustee shall comply
with any such written direction and shall have no responsibility to inquire into or
determine for what purpose any such withdrawals are made. However, the need
for such written direction is hereby waived so long as the Settlor acts in the
capacity of Trustee.
ADDITIONAL DISTRIBUTIONS OF PRINCIPAL BASED ON ASCER-
TAINABLE STANDARD. In addition, the Trustee may.pay to or apply for thebenefit of the Settlor as much of the Trust Estate as is necessary in the Trustee’ s
discretion for the Settlor’s proper health, support, maintenance, comfort, and
welfare, in accordance with the Settlor’s accustomed manner of living.
ADDITIONAL DISTRIBUTIONS OF INCOME AND PRINCIPAL BASED ON
ASCERTAINABLE STANDARD DURING INCAPACITY. In the event that at
any time the Settlor has become incapacitated, as defined in Article XII Paragraph
B of this Trust Agreement, the Trustee shall pay to or apply for the benefit of the
Settior-suct-amounts of ner income and principal of the ‘Trust Estate which are
necessary in the Trustee’s discretion for the proper health, support, and
maintenance of the Settlor in accordance with his accustomed manner of living,
until the Settlor is determined, in accordance with Article XII Paragraph B to
again be able to manage the Settlor’s own affairs or until the earlier death of the
Settlor. Any income in excess of the amounts applied for the benefit of the Settlor
shall be accumulated and added to principal of the Trust Estate,
ARTICLE VII.
INCAPACITY OF MARTIN FRANCIS SCHRAM
In the event that Martin Francis Schram, as Trustee, becomes so incapacitated, as defined
in Article XII Paragraph B of this Trust Agreement, as to be unable to properly carry out his
fiduciary responsibilities as Trustee, then the Successor Trustee hereinafter named shall assume
such fiduciary responsibilities. In determining whether or not the Trusteé is incapacitated, the
Successor Trustee may rely completely on written information furnished pursuant to the
provisions of Article XII Paragraph B of this Trust Agreement. The Successor Trustee shall be
fully protected for acts done, or failure to take any action, in good faith reliance upon such
information.
A.
ARTICLE VIII.
DISTRIBUTION OF TRUST INCOME AND PRINCIPAL
FOLLOWING THE DEATH OF MARTIN FRANCIS SCHRAM
PAYMENT OF TAXES AND ADMINISTRATION EXPENSES; NOTIFICA-
TION OF CREDITORS, Upon the death of the Settlor, the Trustee is expressly
directed to pay from-the principal of the Trust when due any portion of any estate
taxes directly chargeable to assets of the Trust, and any debts of the Settlor legally
collectable from the Trust unless the Settlor made adequate provision for such
death taxes and debts by Will or otherwise. Death taxes shall not be prorated
among any other beneficiaries of the Trust. In addition, the Trustee may also inthe Trustee’s discretion, pay out of the principal of the Trust the Settior’s last
illness and funeral expenses, any expenses for administration of the Settlor’s
estate, including reasonable attorneys’ fees incurred in the administration of the
Settlor’s probate estate, debts of the Settlor, and any estate taxes (including
penalties and interest thereon) arising by reason of the Settlor’s death, The
Trustee may require a claim in a satisfactory form be submitted to the Trustee as
a condition to any such discretionary payments. In addition, the Trustee shal]
comply in good faith with the procedure for the filing and payment of creditors’
Claims ‘against the Trust Estate, as set forth and commencing at Section 19000
Division 9 of the California Probate Code, as amended, and any successor
provisions,
DISPOSITION OF SPECIFIC ITEMS OF TANGIBLE PERSONAL PROPERTY
BY LETTER OF INCORPORATION. After the payments required by Paragraph
A of this Article have been made or otherwise provided for, the Trustee shall first
distribute those certain specific items of tangible personal property, including by
way of illustration only and not by way of limitation, clothing, jewelry, antiques,
china and flatware in accordance with a written statement entirely in the Settlor’s
handwriting and delivered to the Trusteé after the execution of this Trust
Agreement, and as amended from time to time, such written statement entitled
"Letter of Incorporation," having been prepared, dated and signed by the Settlor,
and retained in safekeeping in a separate sealed envelope at the same location of
this Trust Agreement, It is the intention of the Setflor that such written statement
be incorporated by reference into this Trust Agreement as an Amendment pursuant
to the powers reserved by the Settlor to amend this Trust Agreement. In the event
any beneficiary named in this written statement shall not survive, or shall survive
the Settlor but die within a period of thirty (30) days following the Settlor’s date
of death, then the distribution to that beneficiary shall fail. Thereafter, the
Trustee shall distribute such items of tangible personal property in accordance
with the provisions as contained in Paragraph C of this Article.
DISTRIBUTION OF REMAINING TANGIBLE PERSONALPROPERTY. After
the payments and distributions required by Paragraphs A and B of this ‘Article
have been made or otherwise provided for, the Trustee shall then distribute all
remaining tangible personal property to Alfred John O’Connor, currently residing
in the City of San Francisco, San Francisco County, California, Such tangible
personal property shall include the Settlor’s interest in and to personal, household
effects of every kind, including by way of illustration only and not by way of
limitation, clothing, entertainment devices, furniture and household furnishings.
In addition, the Trustee shall also distribute to such beneficiary all of the Settlor’s
interest in any and all policies of fire, burglary, property damage, liability, and
other insurance on or owned in connection with the use of the items herein
distributed. However, in the event such beneficiary shall not survive, or shallsurvive but die within a period of thirty (30) days following the Settlor’s date of
death, the distributions herein made to such deceased beneficiary shall fail,
Thereafter, the Trustee in its sole discretion shall either distribute such tangible
personal property in accordance with the provisions as contained in Paragraph E
of this Article, or liquidate the same at either private or public sale and distribute
the net proceeds in accordance with the same provisions. Such final decision by
the Trustee shal] be made based on the economic merits of the transaction.
INDIVIDUAL PECUNIARY DISTRIBUTIONS: “Afier the payments and
distributions as required by Paragraphs A through C of this Article have been
made or otherwise provided for, the Trustee shall distribute to those individual
beneficiaries whose complete names appear below, the following pecuniary sums
outright and free of any Trust established under this Trust Agreement:
1 To Carol Ann Burdette, currently residing in the City of Durham, Durham
County, North Carolina, a pecuniary sum in the amount of One Thousand
Dollars ($1,000.00).
2, To Joanne Genevish, currently residing in the City of Rockville,
Montgomery County, Maryland, a pecuniary sum in the amount of One
Thousand Dollars ($1,000.00).
3. To John George Gerns, currently residing in the City of Chesapeake
Beach, Calvert County, Maryland, a pecuniary sum in the amount of One
Thousand Dollars ($1,000.00),
4. To James Wilson Henderson, currently residing in the City of Owings,
Baltimore County, Maryland, a pecuniary sum in the amount of One
Thousand Dollars ($1,000.00), .
5. To Helen Patricia Rice, currently residing in the City of Ellicott City,
Howard County, Maryland, a pecuniary sum in the amount of One
Thousand Dollars ($1,000.00). .
In the event that an individual beneficiary named above shall not survive, or shall
survive but die within a period of thirty (30) days following the Settlor’s date of
death, the outright distribution provided for in this Paragraph to such individual
beneficiary shall fail. Thereafter, the Trustee shall distribute the same in
accordance with the appropriate provisions of either Paragraphs B or F as
contained in this Article.
DISPOSITION OF REMAINING TRUST ESTATE FOR THE BENEFIT OF
ALFRED JOHN O'CONNOR. After the payments and distributions required byParagraphs A through D of this Article have been made or otherwise provided for,
the Trustee shall retain in trust the remaining balance of the entire Trust Estate for
the benefit of Alfred John O'Connor, currently residing in the City of San
Francisco, San Francisco County, California, in accordance with the provisions
of The Alfred John O’Connor Trust as contained under Article IX of this Trust
Agreement, In the event such beneficiary shall not survive, or shall survive but
die within a period of thirty (30) days following the Settlor’s date of death the
‘same shall fail. Thereafter, the Trustee shall distribute the same in accordance
with the provisions as contained in Paragraph F of this Article.
DISPOSITION OF REMAINING TRUST ESTATE FOLLOWING THE DEATH
OF ALFRED JOHN O'CONNOR, After the payments and distributions as
required by Paragraphs A through E have been made or otherwise provided for,
and in the event Alfred John O’Connor shal! not survive the Settlor, or shal]
survive but then die, the Trustee shajl thereupon divide and distribute the
remaining balance of the entire Trust Estate into separate percentage amounts in
accordance with the following allocation provisions among those individual
beneficiaries whose names appear below. As to any real property or intangible
personal property incapable of exact division, it shall not be necessary for the
Trustee to actually divide the same physically into as many parts as there may be
separate Trust Shares. The Trustee shall instead have the authority in its sole
discretion to liquidate the same and thereafter allocate the net proceeds to each
separate Trust Share,
1, To Carol Ann Burdette, currently residing in the City of Durham, Durham
County, North Carolina, an amount equal to Twenty Percent (20%) of the
remaining Trust Estate. The same shall be distributed outright and free
of any Trust established under this Trust Agreement. In the event such
beneficiary shall not surviye, or shall survive but die within a period of
thirty (30) days following the Settlor’s date of death leaving issue
surviving the same shall not fail. Thereafter, the Trustee shall equally
divide and distribute such percentage amount among such deceased
beneficiary's suryiving issue by right of representation. Such distributions
shall be made outright and free of any Trust established under this Trust
Agreement. However, in the event such issue are minors, .the same shal!
be retained by a Custodian appointed by the Trustee-of this Trust
Agreement, in accordance with the California Uniform Transfer To
Minors Act (CUTMA), or other state’s appropriate legislation, Uniform
Gift To Minors Act (UGMA). Finally, in the event such beneficiary shall
not survive, or shall survive but die within a period of thirty (30) days
following the Settlor’s date of death leaving no issue surviving, the same
shall fail. Thereafter, the Trustee shall divide and distribute suchpercentage amount in a pro-rata manner among those surviving
beneficiaries whose names appéar in this Paragraph F,
To Joanne Genevish,: currently residing in the City. ef Rockville,
Montgomery County, Maryland, an amount equal to Twenty Percent
. (20%) of the remaining Trust Estate, The same shall be distributed
outright and free of any Trust established under this Trust Agreement. In
the event such beneficiary shall not survive, or shall survive but die within
a period of thirty (30) days following the Settlor’s date of death leaving
issue surviving the same shall not fail, Thereafter, the Trustee shall
equally divide and distribute such percentage amount among such deceased
beneficiary’s surviving issue by right of representation. Such distributions
shall be made outright and free of any Trust established under this Trust
Agreement. However, in the event such issue are minors, the same shall
be retained by a Custodian appointed by the Trustee of this Trust
Agreement, in accordance with the California Uniform Transfer To
Minors Act (CUTMA), or other state’s appropriate legislation, Uniform
Gift To Minors Act (UGMA). Finally, in the event such beneficiary shall
not survive, or shall survive but die within a period of thirty (30) days
following the Settlor’s date of death leaving no issue surviving, the same
shall fail. Thereafter, the Trustee shall divide and distribute such
percentage amount in a pro-rata manner among those surviving
beneficiaries whose names appear in this Paragraph F. ©
To John George Gerns, currently residing in the City of Chesapeake
Beach, Calvert County, Maryland, an amount equal to Twenty Percent
(20%) of the remaining Trust Estate. The same shall be distributed
outright and free of any Trust established under this Trust Agreement. In
the event such beneficiary shall not survive, or shall survive but die within
a period of thirty (30) days following the Settlor’s date of death leaving
issue surviving the same shall not fail. Thereafter, the Trustee shall
equally divide and distribute such percentage amount among such deceased
beneficiary’s surviving issue by right of representation. Such distributions
shall be made outright and free of any Trust established under this Trust
Agreement. However, in the event such issue are minors, the same shal]
be retained by a Custodian appointed by the Trustee of this Trust
Agreement, in accordance with the California Uniform Transfer To
Minors Act (CUTMA), or other state’s appropriate legislation, Uniform
Gift To Minors Act (UGMA). Finally, in the event such beneficiary shal!
not survive, or shall survive but die within a period of thirty (30) days
following the Settlor's date of death leaving no issue surviving, the same
shall fail, Thereafter, the Trustee shall divide and distribute suchpercentage amount in a pro-rata manner among those surviving
beneficiaries whose names appear in this Paragraph F.
To James Wilson Henderson, currently residing in the City of Owings,
Baltimore County, Maryland, an amount equal to Twenty Percent (20%)
of the remaining Trust Estate. The same shall be distributed outright and
free of ‘any Trust established under this Trust Agreement. In the event
such beneficiary shall not survive, or shall survive but die within a period
of thirty (30) days following the Settlor’s date of death leaving issue
surviving the same shall not fail. Thereafter, the Trustee shall equally
divide and distribute such percentage amount among such deceased
beneficiaty’s surviving issue by right of representation. Such distributions
shal) be made outright and free of any Trust established under this Trust
Agreement, However, in the event such issue are minors, the same shal]
be retained by a Custodian appointed by the Trustee of this Trust
Agreement, in. accordance with the California Uniform Transfer To
Minors Act (CUTMA), or other state’s appropriate legislation; Uniform
Gift To Minors Act (UGMA). Finally, in the event such beneficiary shall
not survive, or shall survive but die within a period of thirty (30) days
following the Settlor’s date of death leaving no issue surviving, the same
shall fail. Thereafter, the Trustee shall divide and distribute such
percentage amount in a pro-rata manner among those surviving
beneficiaries whose names appear in this Paragraph F.
To Helen Patricia Rice, currently residing in the City of Bllicott City,
Howard County, Maryland, an amount equal to Twenty Percent (20%) of
the remaining Trust Bstate. The same shall be distributed outright and
free of any Trust established under this Trust Agreement. In the event
such beneficiary shall not survive, or shall survive but die within a period
of thirty (30) days following the Settlor’s date of death leaving issue
surviving the same shalt not fail. Thereafter, the Trustee shall equally
divide and distribute such percentage amount among such deceased
beneficiary’s surviving issue by right of representation. Such distributions
shall be made outright and free of any Trust established under this Trust
Agreement, However, in the event such issue are minors, the same shall
be retained by a Custodian appointed by the Trustee of this Trust
Agreement, in accordance with the California Uniform Transfer To
Minors Act (CUTMA), or other state’s appropriate legislation, Uniform
Gift. To Minors Act (UGMA), Finally, in the event such beneficiary shall
not survive, or shall survive but die within a period of thirty (30) days
following the Settlor’s date of death leaving no issue surviving, the: same
shall fail. Thereafter, the Trustee shall divide and distribute suchpercentage amount in a pro-rata manner among those surviving
beneficiaries whose names appear in this Paragraph F.
Finally, in the event that all or any part of the Trust Estate has not been
distributed as provided herein, the remaining portion of the Trust shall be
distributed to the legal heirs of the Settlor in accordance with the laws of
suecession of the State of California then in force. The Trustee, in the Trustee’ s
discretion, may have the identities of such heirs and their respective distributive
shares determined by a court of competent jurisdicition at the expense of the
Trust.
ARTICLE IX.
ADMINISTRATION OF THE ALFRED JOHN O’CONNOR TRUST
During the lifetime of Alfred John O’Connor, the Trustee shall hold, administer and
distribute The Alfred John O’Connor Trust for such beneficiary’s benefit as hereinafter set forth:
A
DISTRIBUTION OF NET INCOME BASED ON ASCERTAINABLE.
STANDARD. During the lifetime of Alfred John O’Connor, the Trustee shall
pay to or apply for his benefit as much of the net income of this separate Trust
as the Trustee considers necessary for his proper health, support, maintenance and
education in accordance with his accustomed manner of living, Any net income
not so distributed shall be accumulated and added to principal.
ADDITIONAL DISTRIBUTIONS OF PRINCIPAL BASED ON ASCER-
TAINABLE STANDARD. In the event that the Trustee considers the net income
insufficient, the Trustee may also pay to or apply for the benefit of Alfred John
O’Connor as much of the principal of this separate Trust as the Trustee, in the
Trustee’s discretion, considers necessary for his proper health, support,
maintenance and education, in accordance with his accustomed manner of living,
INCAPACITY. In the event that at any time Alfred John O’Connor shall become
incapacitated, as defined in Article XJ1 Paragraph B as contained in this Trust
Agreement, the Trustee may pay to or apply for his benefit amounts of net income
and principal of this separate Trust as the Trustee, in the Trustee's discretion,
deems reasonably necessary for his proper health, support, maintenance and
education in accordance with his accustomed manner of living, until he is deter-
‘mined, in accordance with Article XII Paragraph B as contained in this Trust
- Agreement, again able to manage his own affairs or until his earlier death. Any
net income in excess of the amounts paid to or applied for Alfred John
O’Connor’s benefit shall be accumulated and added to principal.SPECIAL LIFETIME AND TESTAMENTARY POWER OF APPOINTMEN'T,
Alfred John O’Connor shall possess a special lifetime and testamentary power of
appointment over all or any part of this separate Trust. However, this special
power of appointment may not be exercised for appointment to or for the benefit
of Alfred John O’Connor's creditors, his estate, or his estate’s creditors. This
power of appointment may be exercised by language contained in Alfred John
O’Connor’s Last Will And Testament, by a Deed, Conveyance, Bill of Sale, Gift,
or by any written instrument executed by him which adequately evidences his
intent to appoint
Preview
SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Jul-26-2013 3:51 pm Case Number: PES-11-294526 Filing Date: Jul-26-2013 3:50 Filed by: ELIZABETH FONG Juke Box: 001 Image: 04142637 GENERIC PROBATE PLEADING THE ESTATE OF ALFRED JOHN O'CONNOR 001P04142637 Instructions: Please place this sheet on top of the document to be scanned.Co Oe NY DAW BF WN NN NN N NY NN NY |S Se Be Be Se Be we we ee eo QOD A BF YH FF So we NY DH BF WKH = Jon R. Vaught, Esq., SB#114590 Basil J. Boutris, Esq., SB#122758 VAUGHT & BOUTRIS, LLP Attorneys at Law 80 Swan Way, Suite 320 Oakland, CA 94621 Tel: (510) 430-1518 FAX: (510) 382-1166 Email: jon@vaughtboutris.com David Brillant, SBN 220895 Erica Shepard, SBN 255883 BRILLANT LAW FIRM, A Professional Corporation 2540 Camino Diablo, Suite 200 Walnut Creek, CA 94597 Tel. (925) 274-1400 FAX (925) 274-9696 Email: dbrillant@pbrillantlaw.com Attorneys for Contestant PATRICIA RICE San Francisco County ‘Superior Court JUL 26 2013 CLERK OF THE COURT SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Estate of: ALFRED JOHN O’CONNOR PATRICIA RICE, CAROL BURDETTE, JOANNE GENEVISH, JAMES HENDERSON and JOHN GERNS Contestants, vs. DOUGLAS R. JOHNSON Respondent. Case No.: PES-11-294526 AMENDED CONTEST AND OBJECTION TO DOUGLAS R. JOHNSON’S AMENDED PETITION FOR PROBATE OF WILL Date: September 24, 2013 Time: 9:00 a.m. Dept: 204 PATRICIA RICE, contests the validity of the December 4, 2010 typewritten testamentary instrument of Alfred John O’Connor and challenges the admission of the document to probate on the following grounds: MM 1 AMENDED CONTEST AND OBJECTION TO DOUGLAS R. JOHNSON’S AMENDED PETITION FOR. PROBATE OF WILL — CASE NO.: PES-11-294526 \\SERVER \ProLawFiles\Documents\1034,001\Pleadings\15611 docCo ON DH BF WN NN YN NY N NN NY He Be Be Be we Be Be ewe ew eo ND HW RF BH = SOD Oe NY DH BF Bw NH SF S I BACKGROUND FACTS 1. Alfred John O’Connor, hereinafter referred to as Decedent, was in a long-term relationship with his domestic partner Martin “Tom” Schram. Tom and Decedent both executed) mutual revocable living trusts whereby upon the death of the first partner, after some specific and general gifts, the residuary estate would be placed in trust for the benefit of the surviving partner. See Tom Schram’s Trust attached hereto as Exhibit A. The relevant provision is set forth in Article VIII, Section E. 2. In addition to the trust for the benefit of the surviving domestic partner, the mutual trusts also contained a special lifetime and testamentary power of appointment over the property contained in the trust for the benefit of the surviving partner. (Article IX, Section D of Tom Schram’s Trust attached hereto as Exhibit A). 3. Pursuant to the terms of the Martin Francis Schram Trust (“Schram Trust”), following the death of Decedent, the heirs of Tom’s estate would receive the balance of the trust! estate in equal shares (Article VIII, Section F of Tom Schram’s Trust attached hereto as Exhibit! A). 4. Tom died on February 2, 2006. The only asset currently held in the Schram Trust is an undivided one-half interest in real property at 536 Moraga Street in San Francisco. See Respondent’s Request for Judicial Notice. IL. PRELIMINARY ALLEGATION 5. Decedent died on April 15, 2011. At the time of death, Decedent was a resident of the City and County of San Francisco, California. 6. On April 26, 2011, Douglas R. Johnson filed in this court a typewritten testamentary instrument dated December 4, 2010, together with a petition requesting that the document be admitted to probate as the Decedent’s last will. 7. Within the December 4, 2010 typewritten instrument, Decedent allegedly exercised his power of appointment over the Schram Trust and appointed the entire Schram Trust! to respondent Douglas R. Johnson. See Section 1.5 of Decedent’s Will attached to Respondent’s| 2 AMENDED CONTEST AND OBJECTION TO DOUGLAS R. JOHNSON’S AMENDED PETITION FOR. PROBATE OF WILL — CASE NO.: PES-11-294526 \\SERVERI\ProLawFiles\Documents\1034,001\Pleadings\15611 doc0 em YN DH BW NY NN YN NN NN DY Se Be we Be ew Be ew Be Be oN DH Hh FF YW NY &§ DGD Oe IN DH BF WH & CS Petition for Probate. 8. On July 22, 2011, the beneficiaries of the Schram Trust, namely, Contestant Patricia Rice, Caro] Burdette, Joanne Genevish, James Henderson, and John Gerns, filed a contest and grounds for objection to Respondent’s petition for probate of will as persons interested in Decedent’s estate under Probate Code §48. 9. On March 15, 2013, all of the Schram heirs except Contestant, Patricia Rice, filed a dismissal of their will contest. 10. On February 8, 2013, Douglas R. Johnson filed in this court an Amended Petition for Probate of Will and for Letters of Administration with Will Annexed requesting that three’ holographic wills of Decedent dated December 4, 2010, December 14, 2010 and March 9, 2011, be admitted to probate with the previously filed typewritten testamentary instrument dated December 4, 2010. Respondent argues that all of the testamentary instruments taken together make up Decedent’s last will. 11. Petitioner objects to Respondent’s legal contention that the typewritten instrument and the holographic wills dated December 4, 2010, December 14, 2010 and March 9, 2011 make up one complete will for Decedent. The documents are not codicils to the typewritten instrument as numerous provisions contradict, including the fact that none of the holographic wills exercise Decedent’s testamentary power of appointment over the Schram Trust. 12. Contestant is one of the heirs of Tom Schram whose interest in the Schram Trust may be impaired or defeated by Decedent’s probate proceeding. As a result, Contestant is an| “interested person” as defined in Probate Code section 48. 13. The names, ages, and residences of decedent’s heirs, so far as reasonably ascertainable by the Contestant is as follows: Douglas R. Johnson Michael Cresta 274-A Red Rock Way 1801 Village East Drive San Francisco, CA 94131 Petaluma, CA 94752 Petitioner (Adult) Adult Nephew of Al O’Connor 3 AMENDED CONTEST AND OBJECTION TO DOUGLAS R. JOHNSON’S AMENDED PETITION FOR PROBATE OF WILL — CASE NO.: PES-11-294526 \SERVER I\ProLawFiles\Documents'1034 001\Pleadings\15611 doc0 Oe ND WH PB WN | °o Marie Cresta Patterson 3021 Mar Way Santa Rosa, CA 95403 Adult Niece of Al O’Connor Robert Cresta, Jr. 550-A Weber Lane Santa Rosa, CA 95407 Adult Nephew of Al O’Connor McGregor Thibodeaux 10 Los Ranchitos Walnut Creek, CA 94507 Adult friend and successor executor John Gerns 210 Cypress Hollow Bluffton, SC 29909 Adult nephew of Tom Schram Joanne Genevish 1601 Fawn Lilly Ct. Rockville, MD 20853 Adult niece of Tom Schram Patricia Rice 3216 Lake Pointe Dr. Belmont, NC 28012 Adult niece of Tom Schram Jeffrey Cresta P.O. Box 1897 Moose Jaw, Saskatchewan CANADA, S6H7NO Adult Nephew of Al O’Connor Sidney Modell 274-A Red Rock Way San Francisco, CA 94131 Adult Friend and successor executor, Roger S. Gross, Esq. 317 Noe Street San Francisco, CA 94114 Special Administrator James Henderson 6321 Albatross Drive New Bern, NC 28560 Adult nephew of Tom Schram Carol Burdette 320 Delvin Lane Hillsborough, NC 27278 Adult niece of Tom Schram FIRST CAUSE OF ACTION CONTEST OF THE WILL BASED ON UNDUE INFLUENCE 14. Contestant incorporates by reference paragraphs 1 through 13 of this contest and objection as if fully set forth in this cause of action. 15. Contestant is informed and believes and thereon alleges, inter alia, that Respondent unduly influenced Decedent to execute the December 4, 2010 typewritten instrument exercising the special testamentary power of appointment. But for this inappropriate and illegal conduct committed by Respondent onto Decedent, the heirs of Tom Shram would be the recipients of the trust created for their ultimate benefit upon the death of Decedent. 4 AMENDED CONTEST AND OBJECTION TO DOUGLAS R. JOHNSON’S AMENDED PETITION FOR PROBATE OF WILL ~ CASE NO.: PES-11-294526 \\SERVERI\ProLawFiles\Documents\1034,001\Pleadings\15611.docCo Oo ND 2010 typewritten instrument is an invalid document because it was made as a result of the undue’ influence of Douglas R. Johnson in that: Mf 16. Contestant is informed and believes and thereon alleges that the December 4, (a) Respondent was the paid care giver of Decedent, and performed health and social services including, but not limited to cleaning Decedent’s home, providing transportation, and other tasks of dialing living. During this same period of time that Respondent was providing health and social services, Decedent’s mental health was in| decline as he was dealing with constant depression. Decedent put his trust and confidence in Respondent as a result of this relationship. During this same period of| time, Respondent isolated Decedent from his close friends and relatives. The isolation was the result of Respondent’s, and his agents, methods of neglect, disapproval and emotional and mental manipulation. These acts caused Decedent to withdraw himself| from friends and family. (b) During the same period of time, by reason of the relationship of Decedent! with Respondent, Respondent was able to exert control and influence over the mind and actions of Decedent to such a point that Decedent was no longer capable of exercising his own conviction or desire with regard to his actions or thoughts, but rather, because of the coercion and pressure brought on him by Respondent, Decedent’s convictions or desires became the conditions or desires imposed on him by Respondent. (c) During this same period of time, while Decedent was under Respondent’s undue influence, Respondent suggested the contents of the December 4, 2010 typewritten instrument submitted for probate to this court by Respondent, arranged for execution of| the document, and caused Decedent to execute the document. At the time the document was executed, Decedent was wholly under the influence of Respondent and the document does not represent the free and voluntary act of Decedent. WHEREFORE, Contestant prays for relief as set forth below. 5 AMENDED CONTEST AND OBJECTION TO DOUGLAS R. JOHNSON’S AMENDED PETITION FOR PROBATE OF WILL — CASE NO.: PES-11-294526 \NSERVER\ProLawFiles\Documents\1034.001\Pleadings\15611 docCo ON DH F WN A Bw N | Oo 16 SECOND CAUSE OF ACTION CHALLENGE TO DECEDENT’S EXERCISE OF THE POWER OF APPOINTMENT BASED ON UNDUE INFLUENCE 17. Contestant incorporates by reference paragraphs 1 through 13 of this contest and objection as if fully set forth in this cause of action. 18. Contestant is informed and believes and thereon alleges that Respondent unduly influenced Decedent to exercise his testamentary power of appointment over the assets of the Schram Trust in the December 4, 2010 typewritten instrument, validity which is presently unknown. But for this inappropriate and illegal conduct committed by Respondent onto Decedent, the heirs of Tom Schram would be the recipients of the trust created for their ultimate benefit upon the death of Decedent. 19. Contestant is informed and believes and thereon alleges that Decedent’s exercise of his special and testamentary power of appointment that appoints all of the property in Tom Shram’s trust to Respondent is invalid because it was made as a result of the undue influence of| Douglas R. Johnson in that: (a) Respondent was the paid care giver of Decedent, and performed health and social services including, but not limited to cleaning Decedent’s home, providing transportation, and other tasks of dialing living. During this same period of time that Respondent was providing, health and social services, Decedent’s mental health was in decline as he was dealing with constant depression. Decedent put his trust and confidence in Respondent as a result of this relationship. During this same period of time, Respondent isolated Decedent from his close friends and relatives. The isolation was the result of Respondent’s, and his agents, methods of| neglect, disapproval and emotional and mental manipulation. These acts caused Decedent to withdraw himself from friends and family. (b) During the same period of time, by reason of the relationship of Decedent with Respondent, Respondent was able to exert control and influence over the mind and actions of Decedent to such a point that Decedent was no longer capable of exercising his own conviction 6 AMENDED CONTEST AND OBJECTION TO DOUGLAS R. JOHNSON’S AMENDED PETITION FOR. PROBATE OF WILL — CASE NO.: PES-11-294526 \\SERVER|\ProLawFiles\Documents\1034.001\Pleadings\15611 doc0 ON DH FF WN NN YN NY NN KN NY | ee Bee we Se ew eB oN DA BF YW YH &— SOD we RA DAA BBN SF SS or desire with regard to his actions or thoughts, but rather, because of the coercion and pressure’ brought on him by Respondent, Decedent’s convictions or desires became the conditions or desires imposed on him by Respondent. (c) During this same period of time, while Decedent was under Respondent’s undue influence, Respondent suggested the contents of the December 4, 2010 typewritten instrument submitted for probate to this court by Respondent, arranged for execution of the document, and caused Decedent to execute the document. At the time the document was executed, Decedent was wholly under the influence of Respondent and the document does not represent the free and voluntary act of Decedent. WHEREFORE, Contestant prays for relief as set forth below. THIRD CAUSE OF ACTION INVALID WILL AS A MATTER OF LAW - PROB. CODE SECTION 21360 ET SEQ. 20. Contestant incorporates by reference paragraphs | through 13 of this contest and objection as if fully set forth in this cause of action. 21. Contestant is informed and believes and thereon alleges that the December 4, 2010, typewritten instrument exercising Decedent’s testamentary power of appointment over the Schram Trust and appointing all of the property to Respondent is invalid because, at the time the testamentary instrument was executed, Respondent was a care custodian of Decedent, as that term is defined under Prob. Code §21362, and the Decedent was a dependent adult as that term is defined in Prob. Code §21366. 22. Respondent meets the statutory definition of a “care custodian” as a result of the health and social services he provided to Decedent. Those services Respondent provided to Decedent included: cleaning Decedent’s home, providing transportation to Decedent, shopping for and with Decedent, cooking for Decedent, and companionship. 23. At the time Respondent was providing the services set forth in this Amended Contest, Decedent was a dependent adult as that phrase is defined in Probate Code section 21366. Decedent was over the age of 65 years and satisfied either or both of the requirements 7 AMENDED CONTEST AND OBJECTION TO DOUGLAS R. JOHNSON’S AMENDED PETITION FOR PROBATE OF WILL — CASE NO.: PES-11-294526 SERVER \ProLawFiles\Documents\1034.001\Pleadings\1561 docco 0D Oem NIN KD WH BF WN N N NY NY N NN KN NY Bee Se Be Be Be ewe ewe ew oN DA HW FY NHN = SGD we IY DH PB WN | under Probate Code section 21366(a)(1) and (a)(2). 24. Asa result of Decedent being a dependent adult pursuant to Probate Code section 21366 and Respondent being a care custodian as set forth in Probate Code section 21362, the December 4, 2010, typewritten instrument is presumed to be the product of fraud or undue influence by Respondent onto Decedent. WHEREFORE, Contestant prays for relief as set forth below. FOURTH CAUSE OF ACTION REVOCATION BY DESTRUCTION OF WILLS — PROB. CODE SECTION 6120(b) 25. Contestant incorporates by reference paragraphs 1 through 13 of this contest and objection as if fully set forth in this cause of action. 26. Contestant is informed and believes and thereon alleges that Decedent sought to invalidate his will because he did not want Douglas Johnson or Sidney Modell to have any involvement in his life or estate. Decedent told multiple witnesses of this intent. 27. Contestant is informed and believes and thereon alleges that Decedent called his estate attorney, John Bugatto, to demand his will and trust be destroyed and Mr. Bugatto told him to destroy it, which he did. 28. “Contestant is informed and believes and thereon alleges that Decedent executed the testamentary instruments in duplicate and Mr. Douglas had possession of one copy of the duplicate documents. 29. Contestant is informed and believes and thereon alleges that Decedent destroyed his copy of the testamentary instruments with the intent and for the purpose of revoking it and the wills on file with this Court are the copies given to Mr. Johnson. WHEREFORE, Contestant prays for relief as set forth below. Ii Mil Mil FIFTH CAUSE OF ACTION 8 AMENDED CONTEST AND OBJECTION TO DOUGLAS R. JOHNSON’S AMENDED PETITION FOR PROBATE OF WILL - CASE NO.: PES-11-294526 \\SERVER I\ProLawFiles\Documents\1034.001\Pleadings\1561 1 docoom ND Hh FF WN | NN NY NR NY NR NK DY ee ew ee a i ond A AK HS = SF CHM AAA RB NH = S DECEMBER 4, 2010 TYPEWRITTEN INSTRUMENT WAS PROPERLY REVOKED BY SUBSEQUENT WILL — PROB. CODE SECTION 6120 27. Contestant incorporates by reference paragraphs | through 13 of this contest and objection as if fully set forth in this cause of action. 28. In the alternative, Patricia objects to the probate of the December 4, 2010 typewritten instrument, validity which is presently unknown, because Decedent revoked this document by executing the later holographic wills dated December 4, 2010, December 14, 2010, and March 9, 2011 containing provisions wholly inconsistent with the terms of the December 4, 2010 typewritten instrument. Cal. Prob. Code 6120(a). 29. The holographic wills revoked the December 4, 2010 typewritten instrument offered for probate by the Respondent as the provisions of the subsequent document are inconsistent and in substantial conflict with the provisions of the document propounded by the Respondent. (a) The December 4, 2010 typewritten instrument exercises Decedent’s testamentary power of appointment; distributes the entirety of Decedent’s property to the trustee of the 1997 Alfred John O’Connor Revocable Trust; Respondent is nominated as executor with McGregor Thibeaux [sic] and Sidney Model [sic] as successor co- executors; and the document is witnessed by John and Maria Bugatto. A true and correct copy of the December 4, 2010 typewritten instrument is attached to Respondent’s Amended Petition for Probate. (b) | The December 4, 2010 holograph will identified as the last will and testament of Alfred John O’Connor does not exercise Decedent’s testamentary power of| appointment; makes an outright gift of 536 Moraga Street including all its contents to Respondent; makes an outright gift of Decedent’s automobile to Respondent; makes specific gifts of CDs in the amounts of $25,000 to Decedent’s three nephews and one niece; Respondent is nominated as executor with Nicholas Andrade and Sydney Moddell [sic] as second and third choice; and the document is witnessed by Gregor Thebodeaux 9 AMENDED CONTEST AND OBJECTION TO DOUGLAS R. JOHNSON’S AMENDED PETITION FOR PROBATE OF WILL ~ CASE NO.: PES-1 1-294526 \NSERVER I\ProLawFiles\Documents\1034 .001\Pleadings\15611 docand Nicholas Andrade. A true and correct copy of the December 4, 2010 typewritten instrument is attached to Respondent’s Amended Petition for Probate. (c) | The December 14, 2010 holograph will identified as the last will and testament of Alfred J. O’Connor does not exercise Decedent’s testamentary power of| appointment; makes an outright gift of 536 Moraga Street including all its contents to Respondent; makes no specific mention of Decedent’s automobile; makes specific gifts of CDs in the amount of $25,000 to Decedent’s three nephew and one niece; makes a specific gift of a CD for $100,000 to Gregor Thebodeaux; Respondent and/or Gregor! Thebodeaux [sic] is nominated as executor with Sydney Moddell [sic] as second choice and Jeanne Handley as third choice. (d) The March 9, 2011 holograph will identified as the Trust and Will for Respondent, does not exercise the power of appointment and gives Moraga Street, all contents “there-in” [sic] plus the Toyota Corolln [sic] to Respondent. 30. Decedent’s holographic wills, revoked the December 4, 2010 typewritten instrument. Cal. Prob. Code 6120(a). No other persons that these heirs and devisees are known to be interested in the testamentary instruments of decedent. WHEREFORE, contestants requests judgment as follows: 1. For an order, decree and judgment invalidating the December 4, 2010 typewritten instrument; 2. For an order, decree and judgment invalidating the special testamentary power of appointment that purportedly appoints all of the property in Tom Schram’s trust to Respondent; 3. For an order, decree, and judgment invalidating those provisions of the December 4, 2010 typewritten instrument that purport to make a gift to Respondent; 4. OR in the alternative for an order, decree and judgment that the December 4, 2010. typewritten instrument was revoked by Decedent; 10 AMENDED CONTEST AND OBJECTION TO DOUGLAS R. JOHNSON’S AMENDED PETITION FOR PROBATE OF WILL ~ CASE NO.: PES-11-294526 \\SERVER I\ProLawFiles\Documents\1034 001 \Pleadings\!5611 doc5. For costs of suit and attorney’s fees, to the extent allowed by law under Probate Code sections 21380(d) and 1002; and 6. For any other relief that the Court considers proper. Date: July 26, 2013 Respectfully submitted, BRILLANT LAW FIRM Erica Shepard Attorneys for Contestant PATRICIA RICE 11 AMENDED CONTEST AND OBJECTION TO DOUGLAS R. JOHNSON’S AMENDED PETITION FOR PROBATE OF WILL — CASE NO.: PES-11-294526 \\SERVER \ProLawFiles\Documents\1034,001\Pleadings\1561 1 docCoe IN DH FF YW DN RN YN YN NN DB ee eR me eR oI A A FB YB YH = SCH IY A H PF WN KF VERIFICATION I, Patricia Rice, the petitioner in this matter, declare that I have read the Amended Contest and Objection to Douglas R. Johnson’s Amended Petition for Probate of Will and know its contents, which are true to my own knowledge except for those matters stated on information and believe, and as to those matters I believe them to be true. I declare under the penalty of perjury under the laws of the State of California that the foregoing is true and correct. Dated:¢ pubs £6, 20/3 Soticeta he ce Patricia Rice VIA Fay VW VERIFICATION CAUSERS\PATAPPDATA\LOCALAMICROSOFTNWINDOWS\TEMPORARY INTERNET FILES\CONTENT IES\YSRORW2\15611.DOC DOCXEXHIBIT AATTACHMENT A THE MARTIN FRANCIS SCHRAM REVOCABLE LIVING TRUSTTABLE OF CONTENTS ARTICLE I. RECEIPT OF PROPERTY AND CHARACTER OF TRUST ESTATE... eee es ARTICOE TT DESCRIPTION OF THE SETTCOR'S PANMILY ee ARTICLE III. ’ ACCEPTANCE OF TRUST BY THE TRUSTEE ...... ye ARTICLE IV. ADDITIONAL PROPERTY .... 0... 00.00.0000 . ARTICLE V. RIGHTS OF REVOCATION AND AMENDMENT BY MARTIN FRANCIS SCHRAM .........-...0... A. REVOCATION BY THE SETTLOR .. sea B. AMENDMENT BY THE SETTLOR . C. INCAPACITY OF THE SETTLOR ...... . D, DEATH OF THE SETTLOR ............... ae ARTICLE VI. DISTRIBUTION OF INCOME AND-PRINCIPAL DURING THE LIFETIME OF MARTIN FRANCIS SCHRAM 2... eee eens A. DISTRIBUTION OF NETINCOME ............ B, ADDITIONAL DISTRIBUTIONS OF PRINCIPAL BASED ON ASCERTAINABLE STANDARD ...... C. ADDITIONAL DISTRIBUTIONS OF INCOME AND PRINCIPAL BASED ON ASCERTAINABLE STANDARD DURING INCAPACITY ........... ARTICLE Vil. INCAPACITY OF MARTIN FRANCIS SCHRAM ....... ARTICLE Vill. DISTRIBUTION OF TRUST INCOME AND PRINCIPAL FOLLOWING THE DEATH OF MARTIN FRANCIS SCHRAM ......0.. 000000000 A. PAYMENT OF TAXES AND ADMINISTRATION EXPENSES; NOTIRICATION OF CREDITORS ..... B. DISPOSITION OF SPECIFIC ITEMS OF TANGIBLE PERSONAL PROPERTY BY LETTER OF INCORPORATION |... 0.0... eee ees C. DISTRIBUTION OF REMAINING TANGIBLE PERSONAL PROPERTY ................00.TABLE OF CONTENTS - CONTINUED D. INDIVIDUAL PECUNIARY DISTRIBUTIONS ..:.. E. DISPOSITION OF REMAINING . TRUST ESTATE FOR THE BENEFIT OR ALFRED JOHN-O'CONNOR. ~ ARTICLE IX, ARTICLE X. ARTICLE XI. ° F. DISPOSITION OF REMAINING TRUST ESTATE FOLLOWING THE DEATH OF ALFRED JOHN O'CONNOR ..........-.06 ADMINISTRATION OF THE ALFRED JOHN O’CONNOR TRUST octet rete A. DISTRIBUTION OF NET INCOME BASED ON ASCERTAINABLE STANDARD .........-0055 B. ADDITIONAL DISTRIBUTIONS OF PRINCIPAL BASED ON ASCERTAINABLE STANDARD ...... C. INCAPACITY . bey D. SPECIAL LIFETIME ‘AND TESTAMENTARY. POWER OF APPOINTMENT ..............0. E. DISPOSITION OF REMAINING : TRUST ESTATE 2.0... eee eee ‘TRUSTEE PROVISIONS ....... 0.000. c eee euee APPOINTMENT OF SUCCESSOR TRUSTEE ....... COMPENSATION OF THE TRUSTEE .......... BOND WAIVER AND JUDICIAL ACCOUNTING ... RESIGNATION OF THE TRUSTEE ............ REMOVAL OF THE TRUSTEE .,,,.......... PROCEDURE FOR APPOINTMENT OF ADDITIONAL SUCCESSOR TRUSTEES ......... RELEASE OF THE TRUSTEE Qo Bmvom> “POWERS AND DUTIES OF THE TRUSTEE .......... THE PRUDENT PERSON RULE.............. ADDITIONAL POWERS AND DUTIES ......... GENERATION-SKIPPING TRANSFER TAX POWERS AND DUTIES............0005 SPECIFIC INSTRUCTIONS REGARDING SUBCHAPTER S STOCK «0.0.0... 20.00.00 9 aM>THE MARTIN FRANCIS SCHRAM REVOCABLE LIVING TRUST This Trust Agreement is made and executed in duplicate on this theZ ad day of . » 1997, by and between Martin Francis Schram (also known as Marti 39 chram, M. F, chram, Martin Francis Th mas-Schram, anid Thomas Schram), a resident of the-City of San Francisco, San Francisco County, California, hereinafter referred to as "the Settlor," and Martin Francis Schram hereinafter teferred to as "the Trustee." This Trust ARTICLE I, RECEIPT OF PROPERTY CHARACTER OF TRUST ESTATE All property described in Schedule "A" shall consist of the Seitlor's Separate property, It is the Settlor’s intention that all such property (transferred to the Trust created hereunder and the proceeds thereof shall continue to retain its character as Separate property during the Settlor’s lifetime, subject, however, to the terms and conditions of this Trust Agreement, ARTICLE I. DESCRIPTION OF THE SETTLOR’S FAMILYARTICLE IM. ACCEPTANCE OF TRUST BY THE TRUSTEE The Trustee accepts such title to the Trust-Estate as is conveyed or transferred to the Trustee. hereunder, without liability or responsibility for the condition or validity of such title with the understanding that the Trust Estate has been or will be conveyed or transferred to the Trustee, in trust, with power of sale, for the uses and purposes and upon the Trust terms herein provided. P ARTICLE IV, ADDITIONAL PROPERTY So long as this Trust Agreement remains unrevoked, any person may add to the Trust additional property acceptable to the Trustee, by making the proceeds of insurance policies payable to the Trustee, or by transferring property to the Trustee by deed, assignment, conveyance, gift, bequest, or devise. In the event any transfer of additional property is made while the Settlor is alive, the transferor of such property shall designate in writing to the Trustee whether the property in question shal! constitute the separate property of the Settlor, In the event no such designation is obtained, such property shall be presumed to be the separate property of the Settlor. ARTICLE VY. RIGHTS OF REVOCATION AND AMENDMENT BY MARTIN FRANCIS.SCHRAM During the lifetime of Martin Francis Schram, he specifically reserves and the Trustee specifically grants to him the following rights as hereinafter set forth; A. REVOCATION BY THE SETTLOR, The Settlor may at any time revoke this Trust, in whole or in part, by an instrument in writing signed by the Settlor and delivered to the Trustee. In such event, the Trustee shall deliver promptly to the Settlor or the Settlor's designee all or the designated portion of the Trust’s assets, In the event that this Trust is revoked entirely or with Tespect {0 a major portion of the Trust’s assets, the Trustee shall be entitled to retain sufficient assets reasonably necessary to secure payment of Habilities lawfully incurred by the Trustee in the administration of the Trust, including Trustee’s fees, unless theSettlor indemnifies the Trustee to the Trustee’s satisfaction against loss or expense, AMENDMENT BY THE SETTLOR. The Settlor may at any time amend any of the terms of this Trust by an instrument in writing signed by the Settlor delivered to the Trustee; provided, however, that the duties, powers and responsibilities of the Trustee shall not be substantially altered or amended without the Trustee’ s written consent, INCAPACITY OF THE SETTLOR. The powers of the Settlor to revoke or amend this Trust are personal to the Settlor and shall not be exercisable if the Settlor is incapacitated, as defined in Article XII Paragraph B of this Trust Agreement, or on the Settlor’s behalf by any Conservator, Agent, Attorney in Fact, or other person; except that revocation or amendment in accordance with this Article may be authorized, after notice to the Trustee, by the court that appoints-a Conservator for the Settlor. DEATH OF THE SETTLOR. On the death of the Settlor, the Trust may not be amended, revoked, or terminated except by distributions permitted under this Trust Agreement. ARTICLE VI. DISTRIBUTION OF INCOME AND PRINCIPAL DURING THE LIFETIME OF MARTIN FRANCIS SCHRAM During the lifetime of Martin Francis Schram, he specifically reserves and the Trustee specifically grants to him the following rights to trust income and principal as hereinafter set DISTRIBUTION OF NET INCOME, Subject to Paragraph C of this Article, the Settlor shall have the right, from time to time, to direct the Trustee in writing to pay to the Settlor or apply for the Settlor’s benefit such amounts from the net income of the Trust Estate as the Settlor may designate, up to the whole thereof, Any income not distributed shall be added to principal. The Trustee shall comply with any such written direction and shall have no responsibility to inquire into or determine for what purpose any such withdrawals are made. However, the need for such written direction is hereby waived so long as the Settlor acts in the capacity of Trustee. ADDITIONAL DISTRIBUTIONS OF PRINCIPAL BASED ON ASCER- TAINABLE STANDARD. In addition, the Trustee may.pay to or apply for thebenefit of the Settlor as much of the Trust Estate as is necessary in the Trustee’ s discretion for the Settlor’s proper health, support, maintenance, comfort, and welfare, in accordance with the Settlor’s accustomed manner of living. ADDITIONAL DISTRIBUTIONS OF INCOME AND PRINCIPAL BASED ON ASCERTAINABLE STANDARD DURING INCAPACITY. In the event that at any time the Settlor has become incapacitated, as defined in Article XII Paragraph B of this Trust Agreement, the Trustee shall pay to or apply for the benefit of the Settior-suct-amounts of ner income and principal of the ‘Trust Estate which are necessary in the Trustee’s discretion for the proper health, support, and maintenance of the Settlor in accordance with his accustomed manner of living, until the Settlor is determined, in accordance with Article XII Paragraph B to again be able to manage the Settlor’s own affairs or until the earlier death of the Settlor. Any income in excess of the amounts applied for the benefit of the Settlor shall be accumulated and added to principal of the Trust Estate, ARTICLE VII. INCAPACITY OF MARTIN FRANCIS SCHRAM In the event that Martin Francis Schram, as Trustee, becomes so incapacitated, as defined in Article XII Paragraph B of this Trust Agreement, as to be unable to properly carry out his fiduciary responsibilities as Trustee, then the Successor Trustee hereinafter named shall assume such fiduciary responsibilities. In determining whether or not the Trusteé is incapacitated, the Successor Trustee may rely completely on written information furnished pursuant to the provisions of Article XII Paragraph B of this Trust Agreement. The Successor Trustee shall be fully protected for acts done, or failure to take any action, in good faith reliance upon such information. A. ARTICLE VIII. DISTRIBUTION OF TRUST INCOME AND PRINCIPAL FOLLOWING THE DEATH OF MARTIN FRANCIS SCHRAM PAYMENT OF TAXES AND ADMINISTRATION EXPENSES; NOTIFICA- TION OF CREDITORS, Upon the death of the Settlor, the Trustee is expressly directed to pay from-the principal of the Trust when due any portion of any estate taxes directly chargeable to assets of the Trust, and any debts of the Settlor legally collectable from the Trust unless the Settlor made adequate provision for such death taxes and debts by Will or otherwise. Death taxes shall not be prorated among any other beneficiaries of the Trust. In addition, the Trustee may also inthe Trustee’s discretion, pay out of the principal of the Trust the Settior’s last illness and funeral expenses, any expenses for administration of the Settlor’s estate, including reasonable attorneys’ fees incurred in the administration of the Settlor’s probate estate, debts of the Settlor, and any estate taxes (including penalties and interest thereon) arising by reason of the Settlor’s death, The Trustee may require a claim in a satisfactory form be submitted to the Trustee as a condition to any such discretionary payments. In addition, the Trustee shal] comply in good faith with the procedure for the filing and payment of creditors’ Claims ‘against the Trust Estate, as set forth and commencing at Section 19000 Division 9 of the California Probate Code, as amended, and any successor provisions, DISPOSITION OF SPECIFIC ITEMS OF TANGIBLE PERSONAL PROPERTY BY LETTER OF INCORPORATION. After the payments required by Paragraph A of this Article have been made or otherwise provided for, the Trustee shall first distribute those certain specific items of tangible personal property, including by way of illustration only and not by way of limitation, clothing, jewelry, antiques, china and flatware in accordance with a written statement entirely in the Settlor’s handwriting and delivered to the Trusteé after the execution of this Trust Agreement, and as amended from time to time, such written statement entitled "Letter of Incorporation," having been prepared, dated and signed by the Settlor, and retained in safekeeping in a separate sealed envelope at the same location of this Trust Agreement, It is the intention of the Setflor that such written statement be incorporated by reference into this Trust Agreement as an Amendment pursuant to the powers reserved by the Settlor to amend this Trust Agreement. In the event any beneficiary named in this written statement shall not survive, or shall survive the Settlor but die within a period of thirty (30) days following the Settlor’s date of death, then the distribution to that beneficiary shall fail. Thereafter, the Trustee shall distribute such items of tangible personal property in accordance with the provisions as contained in Paragraph C of this Article. DISTRIBUTION OF REMAINING TANGIBLE PERSONALPROPERTY. After the payments and distributions required by Paragraphs A and B of this ‘Article have been made or otherwise provided for, the Trustee shall then distribute all remaining tangible personal property to Alfred John O’Connor, currently residing in the City of San Francisco, San Francisco County, California, Such tangible personal property shall include the Settlor’s interest in and to personal, household effects of every kind, including by way of illustration only and not by way of limitation, clothing, entertainment devices, furniture and household furnishings. In addition, the Trustee shall also distribute to such beneficiary all of the Settlor’s interest in any and all policies of fire, burglary, property damage, liability, and other insurance on or owned in connection with the use of the items herein distributed. However, in the event such beneficiary shall not survive, or shallsurvive but die within a period of thirty (30) days following the Settlor’s date of death, the distributions herein made to such deceased beneficiary shall fail, Thereafter, the Trustee in its sole discretion shall either distribute such tangible personal property in accordance with the provisions as contained in Paragraph E of this Article, or liquidate the same at either private or public sale and distribute the net proceeds in accordance with the same provisions. Such final decision by the Trustee shal] be made based on the economic merits of the transaction. INDIVIDUAL PECUNIARY DISTRIBUTIONS: “Afier the payments and distributions as required by Paragraphs A through C of this Article have been made or otherwise provided for, the Trustee shall distribute to those individual beneficiaries whose complete names appear below, the following pecuniary sums outright and free of any Trust established under this Trust Agreement: 1 To Carol Ann Burdette, currently residing in the City of Durham, Durham County, North Carolina, a pecuniary sum in the amount of One Thousand Dollars ($1,000.00). 2, To Joanne Genevish, currently residing in the City of Rockville, Montgomery County, Maryland, a pecuniary sum in the amount of One Thousand Dollars ($1,000.00). 3. To John George Gerns, currently residing in the City of Chesapeake Beach, Calvert County, Maryland, a pecuniary sum in the amount of One Thousand Dollars ($1,000.00), 4. To James Wilson Henderson, currently residing in the City of Owings, Baltimore County, Maryland, a pecuniary sum in the amount of One Thousand Dollars ($1,000.00), . 5. To Helen Patricia Rice, currently residing in the City of Ellicott City, Howard County, Maryland, a pecuniary sum in the amount of One Thousand Dollars ($1,000.00). . In the event that an individual beneficiary named above shall not survive, or shall survive but die within a period of thirty (30) days following the Settlor’s date of death, the outright distribution provided for in this Paragraph to such individual beneficiary shall fail. Thereafter, the Trustee shall distribute the same in accordance with the appropriate provisions of either Paragraphs B or F as contained in this Article. DISPOSITION OF REMAINING TRUST ESTATE FOR THE BENEFIT OF ALFRED JOHN O'CONNOR. After the payments and distributions required byParagraphs A through D of this Article have been made or otherwise provided for, the Trustee shall retain in trust the remaining balance of the entire Trust Estate for the benefit of Alfred John O'Connor, currently residing in the City of San Francisco, San Francisco County, California, in accordance with the provisions of The Alfred John O’Connor Trust as contained under Article IX of this Trust Agreement, In the event such beneficiary shall not survive, or shall survive but die within a period of thirty (30) days following the Settlor’s date of death the ‘same shall fail. Thereafter, the Trustee shall distribute the same in accordance with the provisions as contained in Paragraph F of this Article. DISPOSITION OF REMAINING TRUST ESTATE FOLLOWING THE DEATH OF ALFRED JOHN O'CONNOR, After the payments and distributions as required by Paragraphs A through E have been made or otherwise provided for, and in the event Alfred John O’Connor shal! not survive the Settlor, or shal] survive but then die, the Trustee shajl thereupon divide and distribute the remaining balance of the entire Trust Estate into separate percentage amounts in accordance with the following allocation provisions among those individual beneficiaries whose names appear below. As to any real property or intangible personal property incapable of exact division, it shall not be necessary for the Trustee to actually divide the same physically into as many parts as there may be separate Trust Shares. The Trustee shall instead have the authority in its sole discretion to liquidate the same and thereafter allocate the net proceeds to each separate Trust Share, 1, To Carol Ann Burdette, currently residing in the City of Durham, Durham County, North Carolina, an amount equal to Twenty Percent (20%) of the remaining Trust Estate. The same shall be distributed outright and free of any Trust established under this Trust Agreement. In the event such beneficiary shall not surviye, or shall survive but die within a period of thirty (30) days following the Settlor’s date of death leaving issue surviving the same shall not fail. Thereafter, the Trustee shall equally divide and distribute such percentage amount among such deceased beneficiary's suryiving issue by right of representation. Such distributions shall be made outright and free of any Trust established under this Trust Agreement. However, in the event such issue are minors, .the same shal! be retained by a Custodian appointed by the Trustee-of this Trust Agreement, in accordance with the California Uniform Transfer To Minors Act (CUTMA), or other state’s appropriate legislation, Uniform Gift To Minors Act (UGMA). Finally, in the event such beneficiary shall not survive, or shall survive but die within a period of thirty (30) days following the Settlor’s date of death leaving no issue surviving, the same shall fail. Thereafter, the Trustee shall divide and distribute suchpercentage amount in a pro-rata manner among those surviving beneficiaries whose names appéar in this Paragraph F, To Joanne Genevish,: currently residing in the City. ef Rockville, Montgomery County, Maryland, an amount equal to Twenty Percent . (20%) of the remaining Trust Estate, The same shall be distributed outright and free of any Trust established under this Trust Agreement. In the event such beneficiary shall not survive, or shall survive but die within a period of thirty (30) days following the Settlor’s date of death leaving issue surviving the same shall not fail, Thereafter, the Trustee shall equally divide and distribute such percentage amount among such deceased beneficiary’s surviving issue by right of representation. Such distributions shall be made outright and free of any Trust established under this Trust Agreement. However, in the event such issue are minors, the same shall be retained by a Custodian appointed by the Trustee of this Trust Agreement, in accordance with the California Uniform Transfer To Minors Act (CUTMA), or other state’s appropriate legislation, Uniform Gift To Minors Act (UGMA). Finally, in the event such beneficiary shall not survive, or shall survive but die within a period of thirty (30) days following the Settlor’s date of death leaving no issue surviving, the same shall fail. Thereafter, the Trustee shall divide and distribute such percentage amount in a pro-rata manner among those surviving beneficiaries whose names appear in this Paragraph F. © To John George Gerns, currently residing in the City of Chesapeake Beach, Calvert County, Maryland, an amount equal to Twenty Percent (20%) of the remaining Trust Estate. The same shall be distributed outright and free of any Trust established under this Trust Agreement. In the event such beneficiary shall not survive, or shall survive but die within a period of thirty (30) days following the Settlor’s date of death leaving issue surviving the same shall not fail. Thereafter, the Trustee shall equally divide and distribute such percentage amount among such deceased beneficiary’s surviving issue by right of representation. Such distributions shall be made outright and free of any Trust established under this Trust Agreement. However, in the event such issue are minors, the same shal] be retained by a Custodian appointed by the Trustee of this Trust Agreement, in accordance with the California Uniform Transfer To Minors Act (CUTMA), or other state’s appropriate legislation, Uniform Gift To Minors Act (UGMA). Finally, in the event such beneficiary shal! not survive, or shall survive but die within a period of thirty (30) days following the Settlor's date of death leaving no issue surviving, the same shall fail, Thereafter, the Trustee shall divide and distribute suchpercentage amount in a pro-rata manner among those surviving beneficiaries whose names appear in this Paragraph F. To James Wilson Henderson, currently residing in the City of Owings, Baltimore County, Maryland, an amount equal to Twenty Percent (20%) of the remaining Trust Estate. The same shall be distributed outright and free of ‘any Trust established under this Trust Agreement. In the event such beneficiary shall not survive, or shall survive but die within a period of thirty (30) days following the Settlor’s date of death leaving issue surviving the same shall not fail. Thereafter, the Trustee shall equally divide and distribute such percentage amount among such deceased beneficiaty’s surviving issue by right of representation. Such distributions shal) be made outright and free of any Trust established under this Trust Agreement, However, in the event such issue are minors, the same shal] be retained by a Custodian appointed by the Trustee of this Trust Agreement, in. accordance with the California Uniform Transfer To Minors Act (CUTMA), or other state’s appropriate legislation; Uniform Gift To Minors Act (UGMA). Finally, in the event such beneficiary shall not survive, or shall survive but die within a period of thirty (30) days following the Settlor’s date of death leaving no issue surviving, the same shall fail. Thereafter, the Trustee shall divide and distribute such percentage amount in a pro-rata manner among those surviving beneficiaries whose names appear in this Paragraph F. To Helen Patricia Rice, currently residing in the City of Bllicott City, Howard County, Maryland, an amount equal to Twenty Percent (20%) of the remaining Trust Bstate. The same shall be distributed outright and free of any Trust established under this Trust Agreement. In the event such beneficiary shall not survive, or shall survive but die within a period of thirty (30) days following the Settlor’s date of death leaving issue surviving the same shalt not fail. Thereafter, the Trustee shall equally divide and distribute such percentage amount among such deceased beneficiary’s surviving issue by right of representation. Such distributions shall be made outright and free of any Trust established under this Trust Agreement, However, in the event such issue are minors, the same shall be retained by a Custodian appointed by the Trustee of this Trust Agreement, in accordance with the California Uniform Transfer To Minors Act (CUTMA), or other state’s appropriate legislation, Uniform Gift. To Minors Act (UGMA), Finally, in the event such beneficiary shall not survive, or shall survive but die within a period of thirty (30) days following the Settlor’s date of death leaving no issue surviving, the: same shall fail. Thereafter, the Trustee shall divide and distribute suchpercentage amount in a pro-rata manner among those surviving beneficiaries whose names appear in this Paragraph F. Finally, in the event that all or any part of the Trust Estate has not been distributed as provided herein, the remaining portion of the Trust shall be distributed to the legal heirs of the Settlor in accordance with the laws of suecession of the State of California then in force. The Trustee, in the Trustee’ s discretion, may have the identities of such heirs and their respective distributive shares determined by a court of competent jurisdicition at the expense of the Trust. ARTICLE IX. ADMINISTRATION OF THE ALFRED JOHN O’CONNOR TRUST During the lifetime of Alfred John O’Connor, the Trustee shall hold, administer and distribute The Alfred John O’Connor Trust for such beneficiary’s benefit as hereinafter set forth: A DISTRIBUTION OF NET INCOME BASED ON ASCERTAINABLE. STANDARD. During the lifetime of Alfred John O’Connor, the Trustee shall pay to or apply for his benefit as much of the net income of this separate Trust as the Trustee considers necessary for his proper health, support, maintenance and education in accordance with his accustomed manner of living, Any net income not so distributed shall be accumulated and added to principal. ADDITIONAL DISTRIBUTIONS OF PRINCIPAL BASED ON ASCER- TAINABLE STANDARD. In the event that the Trustee considers the net income insufficient, the Trustee may also pay to or apply for the benefit of Alfred John O’Connor as much of the principal of this separate Trust as the Trustee, in the Trustee’s discretion, considers necessary for his proper health, support, maintenance and education, in accordance with his accustomed manner of living, INCAPACITY. In the event that at any time Alfred John O’Connor shall become incapacitated, as defined in Article XJ1 Paragraph B as contained in this Trust Agreement, the Trustee may pay to or apply for his benefit amounts of net income and principal of this separate Trust as the Trustee, in the Trustee's discretion, deems reasonably necessary for his proper health, support, maintenance and education in accordance with his accustomed manner of living, until he is deter- ‘mined, in accordance with Article XII Paragraph B as contained in this Trust - Agreement, again able to manage his own affairs or until his earlier death. Any net income in excess of the amounts paid to or applied for Alfred John O’Connor’s benefit shall be accumulated and added to principal.SPECIAL LIFETIME AND TESTAMENTARY POWER OF APPOINTMEN'T, Alfred John O’Connor shall possess a special lifetime and testamentary power of appointment over all or any part of this separate Trust. However, this special power of appointment may not be exercised for appointment to or for the benefit of Alfred John O’Connor's creditors, his estate, or his estate’s creditors. This power of appointment may be exercised by language contained in Alfred John O’Connor’s Last Will And Testament, by a Deed, Conveyance, Bill of Sale, Gift, or by any written instrument executed by him which adequately evidences his intent to appoint