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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Jun-11-2013 9:40 am
Case Number: PES-11-294526
Filing Date: Jun-11-2013 9:39
Filed by: NOELIA RIVERA
Juke Box: 001 Image: 04086795
OPPOSITION
THE ESTATE OF ALFRED JOHN O'CONNOR
001P04086795
Instructions:
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FIL, E | Cou
Jon R. Vaught, Esq., SB#114590 JUN 14 2013
Basil J. Boutris, Esq., SB#122758 URT
VAUGHT & BOUTRIS, LLP cur OF 1€ CO |
Attorneys at Law By: Deputy Cler
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
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Estate of: Case No.: PES-11-294526
ALFRED JOHN O’CONNOR CONTEST AND GROUNDS FOR
OBJECTION TO DOUGLAS R.
JOHNSON’S AMENDED PETITION FOR
PROBATE OF WILL
PATRICIA RICE, CAROL BURDETTE,
JOANNE GENEVISH, JAMES
HENDERSON and JOHN GERNS Date: June 11, 2013
Time: 9:00 a.m.
Contestants, Dept: 204
vs.
DOUGLAS R. JOHNSON
Respondent.
PATRICIA RICE, contestant, alleges the following in opposition to the Amended
Petition for Probate filed by Douglas R. Johnson:
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CONTEST AND GROUNDS FOR OBJECTIONS TO DOUGLAS R. JOHSON’S AMENDED PETITION FOR
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PRELIMINARY ALLEGATIONS
1 Alfred John O’Connor, hereinafter referred to as Decedent, died on April 15,
2011. At the time of death, Decedent was a resident of the City and County of San Francisco,
California, and left property in the City and County of San Francisco, California.
2. On April 26, 2011, Douglas R. Johnson filed in this court a document dated
December 4, 2010, purporting to be the last will of the Decedent, together with a petition
requesting that the document be admitted to probate as the Decedent’s last will and that letters
testamentary be issued to himself.
3. On July 22, 2011, the beneficiaries of the Martin Francis Schram Trust, namely,
Contestant Patricia Rice, Carol Burdette, Joanne Genevish, James Henderson, and John Gerns,
filed a contest and grounds for objection probate of purported will as persons interested in
Decedent’s estate under Probate Code §48.
4. On March 15, 2013, all of the Schram heirs except Contestant, Patricia Rice, filed
a dismissal of their will contest.
5. 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 the
previously filed typewritten will dated December 4, 2010, together with three holographic wills
dated December 4, 2010, December 14, 2010 and March 9, 2011, all together constituting the
last will of Decedent, be admitted to probate.
6. Contestant is a person interested in Decedent’s estate and is entitled to contest
admission of the Decedent’s purported wills to probate. The following facts establish her
standing as interested persons pursuant to Prob. Code §48 and provide factual background on the
basis of this dispute:
(a) Decedent was in a long-term relationship with his domestic partner Martin
“Tom” Schram. Contestant is informed and believes and thereon alleges that 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
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trust for the benefit of the surviving partner. (Article VIII, Section E of Tom Schram’s
Trust attached hereto as Exhibit A);
(b) 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);
(c) Pursuant to the terms of Tom Schram’s trust, a copy of which is attached
hereto as Exhibit A, 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);
(d) Pursuant to the typewritten December 4, 2010 will that purports to be part
of Decedent’s last will, Decedent allegedly exercised his testamentary power of|
appointment over Tom Schram’s trust and appoints all of the property to Respondent.
(Section 1.5 of Decedent’s Will, which is attached hereto as Exhibit B);
(e) None of the holographic wills that purport to be part of Decedent’s last
will, dated December 4, 2010 (attached hereto as Exhibit C), December 14, 2010
(attached hereto as Exhibit D), and March 9, 2011 (attached hereto as Exhibit E), exercise
Decedent’s testamentary power of appointment over Tom Schram’s trust.
(f) Contestant is one of the heirs of Tom Schram as set forth in the Trust.
Contestant is informed and believes and thereon alleges, inter alia, that Respondent!
unduly influenced Decedent to execute the December 4, 2010 will exercising the special
testamentary power of appointment, and the subsequent December 4, 2010, December
14, 2010, and March 9, 2011 holographic wills;
(g) 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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CONTEST AND GROUNDS FOR OBJECTIONS TO DOUGLAS R. JOHSON’S AMENDED PETITION FOR
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\\SERVER I\ProLawFiles\Documents\1034 001\Pleadings\13807.doc(h) Pursuant to Prob. Code §48, Contestant is one of the heirs of the trust for
the lifetime benefit of Decedent that was wrongfully appointed to Respondent.
Furthermore, by way of this claim, they are also creditors.
7. The names, ages, and residences of decedent’s heirs, so far as reasonably
ascertainable by the contestants are as follows:
Douglas R. Johnson
274-A Red Rock Way
San Francisco, CA 94131
Petitioner (Adult)
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
Michael Cresta
1801 Village East Drive
Petaluma, CA 94752
Adult Nephew of Al O’Connor
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
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CONTEST AND GROUNDS FOR OBJECTIONS TO DOUGLAS R. JOHSON’S AMENDED PETITION FOR
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FIRST CAUSE OF ACTION
CONTEST OF THE WILL BASED ON UNDUE INFLUENCE
8. Contestant incorporates by reference paragraphs | through 7 of this contest and
objection as if fully set forth in this cause of action.
9. Contestant is informed and believes and thereon alleges that Decedent’s purported
wills are not and never were Decedent’s will and were made at the time of the alleged execution
as a result of the undue influence of Douglas R. Johnson in that:
(a) Respondent was the paid care giver of Decedent before Decedent’s death
and occupied a position of trust and confidence with Decedent. During this time,
Decedent’s health was progressively worsened and Decedent put his trust and confidence
in Respondent. During this time, Respondent isolated Decedent from his close friends
and relatives.
(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’
pressure brought on him by Respondent, Decedent’s convictions or desires became the
conditions or desires imposed on him by Respondent.
(c) During this time, while Decedent was under Respondent’s undue
influence, Respondent suggested the contents of the documents submitted for probate to
this court by Respondent, arranged for execution of the documents, and caused Decedent
to execute the documents. At the time the documents were executed, Decedent was
wholly under the influence of Respondent and the documents do not represent the free’
and voluntary act of Decedent.
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CONTEST AND GROUNDS FOR OBJECTIONS TO DOUGLAS R. JOHSON’S AMENDED PETITION FOR
PROBATE OF WILL ~ CASE NO.: PES-11-294526
\SERVER|\ProLawFiles\Documents\1034.001\Pleadings\13807 docSECOND CAUSE OF ACTION
INVALID WILL AS A MATTER OF LAW - PROB. CODE SECTION 21360 ET SEQ.
10. Contestant incorporates by reference paragraphs 1 through 9 of this contest and
objection as if fully set forth in this cause of action.
11. Contestant is informed and believes and thereon alleges that those provisions of|
that purported wills that make a gift to Respondent, are invalid because, at the time the purported
wills were 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.
THIRD CAUSE OF ACTION
REVOCATION BY DESTRUCTION OF WILLS — PROB. CODE SECTION 6120(b)
12. Contestant incorporates by reference paragraphs 1 through 9 of this contest and
objection as if fully set forth in this cause of action.
13. 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.
14. 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.
15. Contestant is informed and believes and thereon alleges that Decedent executed
the purported wills in duplicate and Mr. Douglas had possession of one copy of the duplicate
documents.
16. Contestant is informed and believes and thereon alleges that Decedent destroyed
his copy of the purported wills 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.
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CONTEST AND GROUNDS FOR OBJECTIONS TO DOUGLAS R. JOHSON’S AMENDED PETITION FOR
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\\GERVER \ProLawFiles\Documents\1034.001\Pleadings\13807.docFOURTH CAUSE OF ACTION
DECEMBER 4, 2010 WILL WAS PROPERLY REVOKED BY SUBSEQUENT WILL —
PROB. CODE SECTION 6120
17. Contestant incorporates by reference paragraphs | through 7 of this contest and
objection as if fully set forth in this cause of action.
18. In the alternative, probate of the formal December 4, 2010 will purporting to be’
the last will of Decedent should be denied because Decedent revoked this document by executing
the later holographic wills dated December 14, 2010 containing provisions wholly inconsistent!
with the terms of the prior will. Cal. Prob. Code 6120(a). The December 14, 2010 holographic
will is a complete, separate and substantive will and purports to and is effective to and actually
does dispose of all of the property and estate of said Decedent and does thereby, revoke all
earlier wills. In Re Wallace’s Estate (1950) 100 Cal.App.2d 237. Decedent intended that the’
later holographic will should be his only will, and should displace the typewritten December 4,
2010 will in its entirety. Therefore, it is the later documents, neither exercising the special
testamentary power of appointment that purportedly appoints all of the property in Tom
Schram’s trust to Respondent, that is the last and necessarily controlling expression of the
testator’s testament intent.
19. It will be observed from examining the December 14, 2010 holographic will that
its purpose is not to make supplemental provisions consistent with the formal December 4, 2010
document in whole or in part, nor to dispose of other property, nor to amend and alter the prior
dispositions, but on the contrary it undertakes to make complete disposition of all of Decedent’s
property. It is the law of California that if the later writing purports to make disposition of all of|
Decedent’s property, the earlier instrument is deemed to be wholly revoked. In re Martin’s
Estate (1939) 31 Cal.App.2d 501.
No other persons that these heirs and devisees are known to be interested in the purported
will of decedent.
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CONTEST AND GROUNDS FOR OBJECTIONS TO DOUGLAS R. JOHSON’S AMENDED PETITION FOR
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WHEREFORE, contestants requests judgment as follows:
1,
That the purported wills be denied probate;
2. OR in the alternative that only the December 14, 2010 will be admitted to
probate;
3. 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;
4. For an order, decree, and judgment invalidating those provisions of the subject
wills that purport to make a gift to Respondent;
5. For costs of suit, including attorney’s fees, to the extent allowed by law; and
6. For any other relief that the Court considers proper.
Respectfully submitted,
Date: June 10, 2013 BRILLANT LAW FIRM
By: BZ
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 Contest and Grounds for
Objections 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: Qene 12, 2°43 Jn flew VIA FAX
Patricia Rice
9
VERIFICATION
(CAUSERS\PATIAPPDATA\LOCAL\MICROSOF NWINDOWS\TEMPORARY INTERNET FILES\CONTENT.IES\HU2Z4WS7\13807,DOC.DOCXEXHIBIT AATTACHMENT A
THE
MARTIN FRANCIS SCHRAM
REVOCABLE LIVING TRUSTTABLE OF CONTENTS
ARTICLE I. RECEIPT OF PROPERTY AND
CHARACTER OF TRUST ESTATE... ............. 1
ARTICLE III. ACCEPTANCE OF TRUST BY THE TRUSTEE ........ 2
ARTICLE IV. ADDITIONAL PROPERTY ......... 0.0.00 00000, 2
ARTICLE V. RIGHTS OF REVOCATION AND AMENDMENT
BY MARTIN FRANCIS SCHRAM ................ 2
A. REVOCATION BY THE SETTLOR
B. AMENDMENT BY THE SETTLOR
C, INCAPACITY OF THE SETTLOR
D. DEATH OF THE SETTLOR
ARTICLE VI. DISTRIBUTION OF INCOME AND PRINCIPAL
DURING THE LIFETIME OF MARTIN FRANCIS
SCHRAM .. 1... ee eee nae 3
A. DISTRIBUTION OF NET INCOME
B. ADDITIONAL DISTRIBUTIONS OF PRINCIPAL
BASED ON ASCERTAINABLE STANDARD ...... 3
C. ADDITIONAL DISTRIBUTIONS OF INCOME
AND PRINCIPAL BASED ON ASCERTAINABLE
STANDARD DURING INCAPACITY
ARTICLE VIL INCAPACITY OF MARTIN FRANCIS SCHRAM ....... 4
ARTICLE VIII. DISTRIBUTION OF TRUST INCOME AND
PRINCIPAL FOLLOWING THE DEATH OF
MARTIN FRANCIS SCHRAM ..............0000, 4
A. PAYMENT OF TAXES AND ADMINISTRATION
EXPENSES, NOTIFICATION OF CREDITORS
B. DISPOSITION OF SPECIFIC ITEMS OF
TANGIBLE PERSONAL PROPERTY BY LETTER
OF INCORPORATION ................00.0. 5
C. DISTRIBUTION OF REMAINING TANGIBLE
PERSONAL PROPERTYTABLE OF CONTENTS - CONTINUED
INDIVIDUAL PECUNIARY DISTRIBUTIONS .....
DISPOSITION OF REMAINING
TRUST ESTATE FOR THE BENEFIT
OF ALFRED JOHN_O’CONNOR
mo
ARTICLE IX.
ARTICLE X.
ARTICLE XI.
F. DISPOSITION OF REMAINING
TRUST ESTATE FOLLOWING THE DEATH
OF ALFRED JOHN O’CONNOR ............0.
ADMINISTRATION OF THE ALFRED JOHN O’CONNOR
TRUST 261. te ee eee
A. DISTRIBUTION OF NET INCOME BASED ON
ASCERTAINABLE STANDARD ..............
B. ADDITIONAL DISTRIBUTIONS OF PRINCIPAL
BASED ON ASCERTAINABLE STANDARD ......
C. INCAPACITY.......... 0.000000. cen
D. SPECIAL LIFETIME AND TESTAMENTARY
POWER OF APPOINTMENT
E. DISPOSITION OF REMAINING
TRUST ESTATE
A.
B. COMPENSATION OF THE TRUSTEE ..........
C. BOND WAIVER AND JUDICIAL ACCOUNTING ...
D, RESIGNATION OF THE TRUSTEE
E. REMOVAL OF THE TRUSTEE ..............
F, PROCEDURE FOR APPOINTMENT OF
ADDITIONAL SUCCESSOR TRUSTEES
G. RELEASE OF THE TRUSTEE
POWERS AND DUTIES OF THE TRUSTEE
A. THE PRUDENT PERSON RULE
B. ADDITIONAL POWERS AND DUTIES .........
C. GENERATION-SKIPPING TRANSFER
TAX POWERS AND DUTIES
D. SPECIFIC INSTRUCTIONS REGARDING
SUBCHAPTER S STOCKTHE
MARTIN FRANCIS SCHRAM
REVOCABLE LIVING TRUST
ARTICLE I,
RECEIPT OF PROPERTY
AND
CHARACTER OF TRUST ESTATE
herein as the "Trust Estate,"
hereinafter set forth in this Trust Agreement,
shall consist of the Settlor’s Separate property,
perty transferred to the Trust created hereunder and
Property during the Settlor’s
lifetime, subject, however, to the terms and conditions of this Trust Agreement.ARTICLE Ill.
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 shall 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 V.
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 to a major portion
of the Trust’s assets, the Trustee shall be entitled to retain sufficient assets
reasonably necessary to secure payment of liabilities 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
forth:
A.
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.
C. 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
settlor such 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 VIL.
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 Trustee 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.
ARTICLE VIN.
DISTRIBUTION OF TRUST INCOME AND PRINCIPAL
FOLLOWING THE DEATH OF MARTIN FRANCIS SCHRAM
A. 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 Settlor’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 shall
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 Trustee 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 Settlor 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 PERSONAL PROPERTY, 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 shall be made based on the economic merits of the transaction.
INDIVIDUAL PECUNIARY DISTRIBUTIONS. “After 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 E 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 shall not survive the Settlor, or shall
survive but then die, the Trustee shall 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 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 suchpercentage amount in a pro-rata manner among those surviving
beneficiaries whose names appear in this Paragraph F.
To Joanne Genevish,: currently residing in the City. of 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 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 FP,
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
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 Helen Patricia Rice, currently residing in the City of Ellicott City,
Howard 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 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
succession 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 XII 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.
10.SPECIAL LIFETIME AND TESTAMENTARY POWER OF APPOINTMENT.
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 pursuant to this power. If such power is exercised in Alfred
John O’Connor’s Will, such Will shall control; otherwise, the last dated
appointment pursuant to this ‘power during his lifetime shall control. In the
exercise of this special power of appointment, Alfred John O’Connor may appoint
life estates to one or more objects of the power with remainders to others; impose
lawful conditions upon any appointment to benefit any person not an object of the
power; impose lawful spendthrift restrictions upon any appointment; an make
appointments outright to an object or in trust for the object. Any such exercise
of this power may be subsequently revoked by Alfred John O’Connor; however,
neither such exercise nor revocation shall be binding on the Trustee unless or until
the Trustee has received written notice of such exercise or revocation.
DISPOSITION OF REMAINING TRUST ESTATE. In the event Alfred John
O’Connor shall fail to exercise in whole-or in part the power of appointment
herein given to him, in accordance with the provisions of Paragraph D as
contained in this Article, or having exercised said power of appointment the same
shall be invalid, revoked, or fail for any reason whatsoever, then upon his death,
the Trustee shall hold, administer, and distribute the balance remaining of the
Trust Estate in accordance with the appropriate provisions of Article VIII
Paragraph F, as contained in this Trust Agreement.
ARTICLE X.
TRUSTEE PROVISIONS
APPOINTMENT OF SUCCESSOR TRUSTEE. In the event Martin Francis
Schram shall for any reason fail to qualify or cease to act as Trustee, then Alfred
John O’Connor (also known as Alfred J. O’Connor, Alfred O’Connor, Alfred
John O’Connor, Jr., Alfred J. O’Connor, Jr., and Alfred O’Connor, Jr.),
currently residing in the City of San Francisco, San Franclscp County, California,
shall act as Successor Trustee hereunder. However, in the event Alfred John
O’Connor shall for any reason fail to qualify or cease to act as Successor Trustee,
then Jeffrey Joseph Cresta, currently residing in the City of Santa Rosa, Sonoma
County, California, shall act as Successor Trustee hereunder. However, in the
11.e
Successor Trustee, then Robert Ignatius Cavanaugh, currently residing in the City
to and receive from the Trust Estate reasonable compensation for its ordinary and
Trustee shall pay from principal, income, or both, in such proportions as the
Trustee shall determine, all Costs, taxes, assessments, fees, and other expenses,
including reasonable attorneys’ fees, Properly incurred in the administration and
Protection of this Trust. Such xpenses and compensation shall constitute a lien
on the Trust Estate and shall be paid prior to final distribution of the trust
property.
RESIGNATION OF THE TRUSTEE. The Trustee or any Successor Trustee may
resign by giving written notice thirty (30) days before such resignation is to take
effect (unless a different period is mutually agreed upon) to the Settlor or, after
the death of the Settlor, to all adult beneficiaries and the Guardian, Conservator,
or other fiduciary of the estate of any minor or incapacitated beneficiary who may
then be receiving or entitled to receive income hereunder.
PROCEDURE FOR APPOINTMENT OF ADDITIONAL SUCCESSOR
TRUSTEES. Upon resignation or removal of the Trustee, the Settlor if not
12.or trust company qualified to do business in the state in which the Trust is
administered. No beneficiary for whom a Trust is established at the death of the
Settlor shall have authority to appoint a Successor Trustee.. Therefore, if a
Successor Trustee is not so appointed, the resigning or removed Trustee can
secure the appointment of a Successor Trustee by a court of competent jurisdiction
at the expense of the Trust.
RELEASE OF THE TRUSTEE. On the Successor Trustee’s acceptance of its
appointment, and after the resigning or removed Trustee has been paid all sums
due it and has been indemnified to its satisfaction against liability properly
incurred in its administration of the Trust, the resigning or removed Trustee shall
deliver all trust assets in its possession to the Successor Trustee and shall be
discharged from this Trust. The Successor Trustee shall succeed to all the rights,
powers, duties, title, and interest of the prior Trustee under this Trust Agreement
and shall have no liability for any act or omission of a prior Trustee.
ARTICLE XI.
POWERS AND DUTIES OF THE TRUSTEE
THE PRUDENT PERSON RULE. The Trustee shall use in every circumstance
that degree of judgment and care in the exercise of the rights and powers granted
to it which a reasonably prudent person of like training and abilities would
employ. The rights and powers granted herein are so granted primarily for the
benefit and to secure the well-being of the Settlor, and only secondarily to protect
the Trustee.
ADDITIONAL POWERS AND DUTIES. The Trustee shall have the following
powers and duties to be exercised as the Trustee in its discretion determines to be
in the best interest of the Settlor without court order as hereinafter set forth:
1, The Trustee may take, without being limited by, all common law and
Statutory powers and all specific rights and powers set forth herein, all
proceedings and may exercise all rights and powers as if the absolute
owner of the Trust Estate, except only as the Trustee is otherwise
specifically limited or restricted in this Trust Agreement or by rules of law
which the Settlor has no power to change. The failure to repeat some
statutory powers of this Trust Agreement though others are set forth
herein shall not be construed as evidence of Settlor’s intention to proscribe
exercise by Trustee of any of the statutory powers.
13,No one dealing with the Trustee in any matter concerning the Trust shall
be required to investigate or determine the Trustee’s authority or the
validity or advisability of any transaction or to see to the proper exercise
of the Trustee’s powers or to follow. the disposition of monies or property
delivered to the Trustee.
The Trustee shall recognize that the rights and powers granted by this
Trust Agreement are for positive and affirmative use for the primary
and secondarily for the protection of the Trustee.
The Trustee may rely upon any letter, telegram, notice or other demand
or information believed by the Trustee to be genuine and to have been
executed or given by the person or persons purporting to execute or give
it. Until the Trustee shall have received written notice of any birth,
marriage, death or other event upon which the right to payments from the
Trust may depend, the Trustee shall incur no liability for disbursements
made in good faith to persons whose interests may have been affected by
such event.
No judicial approval or order of any court, officer or tribunal shall be
necessary in the making of any decision or the doing of any act by the
Trustee.
The Settlor hereby relieves the Trustee from any restrictions imposed by
any applicable law or regulation restricting the manner in which either
trust income or principal may be invested. In addition, the Trustee is
authorized to utilize the services of investment advisors and to confer on
such investment advisors full discretionary authority to manage, buy and
sell and otherwise provide advisory and management services with respect
to all or any part of the securities contained in the Trust Estate pursuant
to such guidelines as the Trustee may establish for such investment
advisors.
The Trustee shall have full power and authority to buy, sell and trade in
securities of any kind, including puts, calls, straddles, "short" sales and
other options of every kind, and for such purpose, may maintain and
Operate margin accounts with brokers and may also pledge any securities
held or purchased by the Trust as security
Preview
IEA SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Jun-11-2013 9:40 am Case Number: PES-11-294526 Filing Date: Jun-11-2013 9:39 Filed by: NOELIA RIVERA Juke Box: 001 Image: 04086795 OPPOSITION THE ESTATE OF ALFRED JOHN O'CONNOR 001P04086795 Instructions: Please place this sheet on top of the document to be scanned.x FIL, E | Cou Jon R. Vaught, Esq., SB#114590 JUN 14 2013 Basil J. Boutris, Esq., SB#122758 URT VAUGHT & BOUTRIS, LLP cur OF 1€ CO | Attorneys at Law By: Deputy Cler 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 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO Estate of: Case No.: PES-11-294526 ALFRED JOHN O’CONNOR CONTEST AND GROUNDS FOR OBJECTION TO DOUGLAS R. JOHNSON’S AMENDED PETITION FOR PROBATE OF WILL PATRICIA RICE, CAROL BURDETTE, JOANNE GENEVISH, JAMES HENDERSON and JOHN GERNS Date: June 11, 2013 Time: 9:00 a.m. Contestants, Dept: 204 vs. DOUGLAS R. JOHNSON Respondent. PATRICIA RICE, contestant, alleges the following in opposition to the Amended Petition for Probate filed by Douglas R. Johnson: 1 CONTEST AND GROUNDS FOR OBJECTIONS TO DOUGLAS R. JOHSON’S AMENDED PETITION FOR PROBATE OF WILL — CASE NO.: PES-11-294526 \\SERVER I ProLawFilesDocuments\1034.001\Pleadings\13807 docoO ND Hh PF WN n= Ss PRELIMINARY ALLEGATIONS 1 Alfred John O’Connor, hereinafter referred to as Decedent, died on April 15, 2011. At the time of death, Decedent was a resident of the City and County of San Francisco, California, and left property in the City and County of San Francisco, California. 2. On April 26, 2011, Douglas R. Johnson filed in this court a document dated December 4, 2010, purporting to be the last will of the Decedent, together with a petition requesting that the document be admitted to probate as the Decedent’s last will and that letters testamentary be issued to himself. 3. On July 22, 2011, the beneficiaries of the Martin Francis Schram Trust, namely, Contestant Patricia Rice, Carol Burdette, Joanne Genevish, James Henderson, and John Gerns, filed a contest and grounds for objection probate of purported will as persons interested in Decedent’s estate under Probate Code §48. 4. On March 15, 2013, all of the Schram heirs except Contestant, Patricia Rice, filed a dismissal of their will contest. 5. 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 the previously filed typewritten will dated December 4, 2010, together with three holographic wills dated December 4, 2010, December 14, 2010 and March 9, 2011, all together constituting the last will of Decedent, be admitted to probate. 6. Contestant is a person interested in Decedent’s estate and is entitled to contest admission of the Decedent’s purported wills to probate. The following facts establish her standing as interested persons pursuant to Prob. Code §48 and provide factual background on the basis of this dispute: (a) Decedent was in a long-term relationship with his domestic partner Martin “Tom” Schram. Contestant is informed and believes and thereon alleges that 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 2 CONTEST AND GROUNDS FOR OBJECTIONS TO DOUGLAS R. JOHSON’S AMENDED PETITION FOR PROBATE OF WILL - CASE NO.: PES-11-294526 \SERVER I\ProLawFiles\Documents'1034 001 \Pleadings\13807 doc/// trust for the benefit of the surviving partner. (Article VIII, Section E of Tom Schram’s Trust attached hereto as Exhibit A); (b) 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); (c) Pursuant to the terms of Tom Schram’s trust, a copy of which is attached hereto as Exhibit A, 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); (d) Pursuant to the typewritten December 4, 2010 will that purports to be part of Decedent’s last will, Decedent allegedly exercised his testamentary power of| appointment over Tom Schram’s trust and appoints all of the property to Respondent. (Section 1.5 of Decedent’s Will, which is attached hereto as Exhibit B); (e) None of the holographic wills that purport to be part of Decedent’s last will, dated December 4, 2010 (attached hereto as Exhibit C), December 14, 2010 (attached hereto as Exhibit D), and March 9, 2011 (attached hereto as Exhibit E), exercise Decedent’s testamentary power of appointment over Tom Schram’s trust. (f) Contestant is one of the heirs of Tom Schram as set forth in the Trust. Contestant is informed and believes and thereon alleges, inter alia, that Respondent! unduly influenced Decedent to execute the December 4, 2010 will exercising the special testamentary power of appointment, and the subsequent December 4, 2010, December 14, 2010, and March 9, 2011 holographic wills; (g) 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; 3 CONTEST AND GROUNDS FOR OBJECTIONS TO DOUGLAS R. JOHSON’S AMENDED PETITION FOR PROBATE OF WILL - CASE NO.: PES-11-294526 \\SERVER I\ProLawFiles\Documents\1034 001\Pleadings\13807.doc(h) Pursuant to Prob. Code §48, Contestant is one of the heirs of the trust for the lifetime benefit of Decedent that was wrongfully appointed to Respondent. Furthermore, by way of this claim, they are also creditors. 7. The names, ages, and residences of decedent’s heirs, so far as reasonably ascertainable by the contestants are as follows: Douglas R. Johnson 274-A Red Rock Way San Francisco, CA 94131 Petitioner (Adult) 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 Michael Cresta 1801 Village East Drive Petaluma, CA 94752 Adult Nephew of Al O’Connor 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 4 CONTEST AND GROUNDS FOR OBJECTIONS TO DOUGLAS R. JOHSON’S AMENDED PETITION FOR PROBATE OF WILL — CASE NO.: PES-11-294526 \\SERVER I\ProLawFiles\Documents\1034 001 \Pleadings\13807.docoS 0 ONIN DH FF YW NY YN NY N NN NN KY] B&B we ew ewe ew Be eH oN DAH RF BH KF SO we IN DH BW NH | FIRST CAUSE OF ACTION CONTEST OF THE WILL BASED ON UNDUE INFLUENCE 8. Contestant incorporates by reference paragraphs | through 7 of this contest and objection as if fully set forth in this cause of action. 9. Contestant is informed and believes and thereon alleges that Decedent’s purported wills are not and never were Decedent’s will and were made at the time of the alleged execution as a result of the undue influence of Douglas R. Johnson in that: (a) Respondent was the paid care giver of Decedent before Decedent’s death and occupied a position of trust and confidence with Decedent. During this time, Decedent’s health was progressively worsened and Decedent put his trust and confidence in Respondent. During this time, Respondent isolated Decedent from his close friends and relatives. (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’ pressure brought on him by Respondent, Decedent’s convictions or desires became the conditions or desires imposed on him by Respondent. (c) During this time, while Decedent was under Respondent’s undue influence, Respondent suggested the contents of the documents submitted for probate to this court by Respondent, arranged for execution of the documents, and caused Decedent to execute the documents. At the time the documents were executed, Decedent was wholly under the influence of Respondent and the documents do not represent the free’ and voluntary act of Decedent. /// //1 5 CONTEST AND GROUNDS FOR OBJECTIONS TO DOUGLAS R. JOHSON’S AMENDED PETITION FOR PROBATE OF WILL ~ CASE NO.: PES-11-294526 \SERVER|\ProLawFiles\Documents\1034.001\Pleadings\13807 docSECOND CAUSE OF ACTION INVALID WILL AS A MATTER OF LAW - PROB. CODE SECTION 21360 ET SEQ. 10. Contestant incorporates by reference paragraphs 1 through 9 of this contest and objection as if fully set forth in this cause of action. 11. Contestant is informed and believes and thereon alleges that those provisions of| that purported wills that make a gift to Respondent, are invalid because, at the time the purported wills were 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. THIRD CAUSE OF ACTION REVOCATION BY DESTRUCTION OF WILLS — PROB. CODE SECTION 6120(b) 12. Contestant incorporates by reference paragraphs 1 through 9 of this contest and objection as if fully set forth in this cause of action. 13. 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. 14. 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. 15. Contestant is informed and believes and thereon alleges that Decedent executed the purported wills in duplicate and Mr. Douglas had possession of one copy of the duplicate documents. 16. Contestant is informed and believes and thereon alleges that Decedent destroyed his copy of the purported wills 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. /// 6 CONTEST AND GROUNDS FOR OBJECTIONS TO DOUGLAS R. JOHSON’S AMENDED PETITION FOR PROBATE OF WILL — CASE NO.: PES-11-294526 \\GERVER \ProLawFiles\Documents\1034.001\Pleadings\13807.docFOURTH CAUSE OF ACTION DECEMBER 4, 2010 WILL WAS PROPERLY REVOKED BY SUBSEQUENT WILL — PROB. CODE SECTION 6120 17. Contestant incorporates by reference paragraphs | through 7 of this contest and objection as if fully set forth in this cause of action. 18. In the alternative, probate of the formal December 4, 2010 will purporting to be’ the last will of Decedent should be denied because Decedent revoked this document by executing the later holographic wills dated December 14, 2010 containing provisions wholly inconsistent! with the terms of the prior will. Cal. Prob. Code 6120(a). The December 14, 2010 holographic will is a complete, separate and substantive will and purports to and is effective to and actually does dispose of all of the property and estate of said Decedent and does thereby, revoke all earlier wills. In Re Wallace’s Estate (1950) 100 Cal.App.2d 237. Decedent intended that the’ later holographic will should be his only will, and should displace the typewritten December 4, 2010 will in its entirety. Therefore, it is the later documents, neither exercising the special testamentary power of appointment that purportedly appoints all of the property in Tom Schram’s trust to Respondent, that is the last and necessarily controlling expression of the testator’s testament intent. 19. It will be observed from examining the December 14, 2010 holographic will that its purpose is not to make supplemental provisions consistent with the formal December 4, 2010 document in whole or in part, nor to dispose of other property, nor to amend and alter the prior dispositions, but on the contrary it undertakes to make complete disposition of all of Decedent’s property. It is the law of California that if the later writing purports to make disposition of all of| Decedent’s property, the earlier instrument is deemed to be wholly revoked. In re Martin’s Estate (1939) 31 Cal.App.2d 501. No other persons that these heirs and devisees are known to be interested in the purported will of decedent. //1 7 CONTEST AND GROUNDS FOR OBJECTIONS TO DOUGLAS R. JOHSON’S AMENDED PETITION FOR PROBATE OF WILL — CASE NO.: PES-11-294526 \\SERVER \ProLawFiles\Documents\1034 001\Pleadings\13807 docCem IN DH FB BW ND 10 WHEREFORE, contestants requests judgment as follows: 1, That the purported wills be denied probate; 2. OR in the alternative that only the December 14, 2010 will be admitted to probate; 3. 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; 4. For an order, decree, and judgment invalidating those provisions of the subject wills that purport to make a gift to Respondent; 5. For costs of suit, including attorney’s fees, to the extent allowed by law; and 6. For any other relief that the Court considers proper. Respectfully submitted, Date: June 10, 2013 BRILLANT LAW FIRM By: BZ Erica Shepard ~~ Attorneys for Contestant PATRICIA RICE 8 CONTEST AND GROUNDS FOR OBJECTIONS TO DOUGLAS R. JOHSON’S AMENDED PETITION FOR PROBATE OF WILL — CASE NO.: PES-11-294526 \\SERVER I\ProLawFiles\Documents\1034.001\Pleadings\13807 docCom YN DH BBW NY = = 6 12 @ VERIFICATION @ I, Patricia Rice, the petitioner in this matter, declare that I have read the Contest and Grounds for Objections 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: Qene 12, 2°43 Jn flew VIA FAX Patricia Rice 9 VERIFICATION (CAUSERS\PATIAPPDATA\LOCAL\MICROSOF NWINDOWS\TEMPORARY INTERNET FILES\CONTENT.IES\HU2Z4WS7\13807,DOC.DOCXEXHIBIT AATTACHMENT A THE MARTIN FRANCIS SCHRAM REVOCABLE LIVING TRUSTTABLE OF CONTENTS ARTICLE I. RECEIPT OF PROPERTY AND CHARACTER OF TRUST ESTATE... ............. 1 ARTICLE III. ACCEPTANCE OF TRUST BY THE TRUSTEE ........ 2 ARTICLE IV. ADDITIONAL PROPERTY ......... 0.0.00 00000, 2 ARTICLE V. RIGHTS OF REVOCATION AND AMENDMENT BY MARTIN FRANCIS SCHRAM ................ 2 A. REVOCATION BY THE SETTLOR B. AMENDMENT BY THE SETTLOR C, INCAPACITY OF THE SETTLOR D. DEATH OF THE SETTLOR ARTICLE VI. DISTRIBUTION OF INCOME AND PRINCIPAL DURING THE LIFETIME OF MARTIN FRANCIS SCHRAM .. 1... ee eee nae 3 A. DISTRIBUTION OF NET INCOME B. ADDITIONAL DISTRIBUTIONS OF PRINCIPAL BASED ON ASCERTAINABLE STANDARD ...... 3 C. ADDITIONAL DISTRIBUTIONS OF INCOME AND PRINCIPAL BASED ON ASCERTAINABLE STANDARD DURING INCAPACITY ARTICLE VIL INCAPACITY OF MARTIN FRANCIS SCHRAM ....... 4 ARTICLE VIII. DISTRIBUTION OF TRUST INCOME AND PRINCIPAL FOLLOWING THE DEATH OF MARTIN FRANCIS SCHRAM ..............0000, 4 A. PAYMENT OF TAXES AND ADMINISTRATION EXPENSES, NOTIFICATION OF CREDITORS B. DISPOSITION OF SPECIFIC ITEMS OF TANGIBLE PERSONAL PROPERTY BY LETTER OF INCORPORATION ................00.0. 5 C. DISTRIBUTION OF REMAINING TANGIBLE PERSONAL PROPERTYTABLE OF CONTENTS - CONTINUED INDIVIDUAL PECUNIARY DISTRIBUTIONS ..... DISPOSITION OF REMAINING TRUST ESTATE FOR THE BENEFIT OF ALFRED JOHN_O’CONNOR mo ARTICLE IX. ARTICLE X. ARTICLE XI. F. DISPOSITION OF REMAINING TRUST ESTATE FOLLOWING THE DEATH OF ALFRED JOHN O’CONNOR ............0. ADMINISTRATION OF THE ALFRED JOHN O’CONNOR TRUST 261. te ee eee A. DISTRIBUTION OF NET INCOME BASED ON ASCERTAINABLE STANDARD .............. B. ADDITIONAL DISTRIBUTIONS OF PRINCIPAL BASED ON ASCERTAINABLE STANDARD ...... C. INCAPACITY.......... 0.000000. cen D. SPECIAL LIFETIME AND TESTAMENTARY POWER OF APPOINTMENT E. DISPOSITION OF REMAINING TRUST ESTATE A. B. COMPENSATION OF THE TRUSTEE .......... C. BOND WAIVER AND JUDICIAL ACCOUNTING ... D, RESIGNATION OF THE TRUSTEE E. REMOVAL OF THE TRUSTEE .............. F, PROCEDURE FOR APPOINTMENT OF ADDITIONAL SUCCESSOR TRUSTEES G. RELEASE OF THE TRUSTEE POWERS AND DUTIES OF THE TRUSTEE A. THE PRUDENT PERSON RULE B. ADDITIONAL POWERS AND DUTIES ......... C. GENERATION-SKIPPING TRANSFER TAX POWERS AND DUTIES D. SPECIFIC INSTRUCTIONS REGARDING SUBCHAPTER S STOCKTHE MARTIN FRANCIS SCHRAM REVOCABLE LIVING TRUST ARTICLE I, RECEIPT OF PROPERTY AND CHARACTER OF TRUST ESTATE herein as the "Trust Estate," hereinafter set forth in this Trust Agreement, shall consist of the Settlor’s Separate property, perty transferred to the Trust created hereunder and Property during the Settlor’s lifetime, subject, however, to the terms and conditions of this Trust Agreement.ARTICLE Ill. 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 shall 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 V. 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 to a major portion of the Trust’s assets, the Trustee shall be entitled to retain sufficient assets reasonably necessary to secure payment of liabilities 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 forth: A. 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. C. 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 settlor such 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 VIL. 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 Trustee 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. ARTICLE VIN. DISTRIBUTION OF TRUST INCOME AND PRINCIPAL FOLLOWING THE DEATH OF MARTIN FRANCIS SCHRAM A. 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 Settlor’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 shall 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 Trustee 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 Settlor 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 PERSONAL PROPERTY, 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 shall be made based on the economic merits of the transaction. INDIVIDUAL PECUNIARY DISTRIBUTIONS. “After 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 E 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 shall not survive the Settlor, or shall survive but then die, the Trustee shall 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 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 suchpercentage amount in a pro-rata manner among those surviving beneficiaries whose names appear in this Paragraph F. To Joanne Genevish,: currently residing in the City. of 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 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 FP, 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 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 Helen Patricia Rice, currently residing in the City of Ellicott City, Howard 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 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 succession 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 XII 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. 10.SPECIAL LIFETIME AND TESTAMENTARY POWER OF APPOINTMENT. 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 pursuant to this power. If such power is exercised in Alfred John O’Connor’s Will, such Will shall control; otherwise, the last dated appointment pursuant to this ‘power during his lifetime shall control. In the exercise of this special power of appointment, Alfred John O’Connor may appoint life estates to one or more objects of the power with remainders to others; impose lawful conditions upon any appointment to benefit any person not an object of the power; impose lawful spendthrift restrictions upon any appointment; an make appointments outright to an object or in trust for the object. Any such exercise of this power may be subsequently revoked by Alfred John O’Connor; however, neither such exercise nor revocation shall be binding on the Trustee unless or until the Trustee has received written notice of such exercise or revocation. DISPOSITION OF REMAINING TRUST ESTATE. In the event Alfred John O’Connor shall fail to exercise in whole-or in part the power of appointment herein given to him, in accordance with the provisions of Paragraph D as contained in this Article, or having exercised said power of appointment the same shall be invalid, revoked, or fail for any reason whatsoever, then upon his death, the Trustee shall hold, administer, and distribute the balance remaining of the Trust Estate in accordance with the appropriate provisions of Article VIII Paragraph F, as contained in this Trust Agreement. ARTICLE X. TRUSTEE PROVISIONS APPOINTMENT OF SUCCESSOR TRUSTEE. In the event Martin Francis Schram shall for any reason fail to qualify or cease to act as Trustee, then Alfred John O’Connor (also known as Alfred J. O’Connor, Alfred O’Connor, Alfred John O’Connor, Jr., Alfred J. O’Connor, Jr., and Alfred O’Connor, Jr.), currently residing in the City of San Francisco, San Franclscp County, California, shall act as Successor Trustee hereunder. However, in the event Alfred John O’Connor shall for any reason fail to qualify or cease to act as Successor Trustee, then Jeffrey Joseph Cresta, currently residing in the City of Santa Rosa, Sonoma County, California, shall act as Successor Trustee hereunder. However, in the 11.e Successor Trustee, then Robert Ignatius Cavanaugh, currently residing in the City to and receive from the Trust Estate reasonable compensation for its ordinary and Trustee shall pay from principal, income, or both, in such proportions as the Trustee shall determine, all Costs, taxes, assessments, fees, and other expenses, including reasonable attorneys’ fees, Properly incurred in the administration and Protection of this Trust. Such xpenses and compensation shall constitute a lien on the Trust Estate and shall be paid prior to final distribution of the trust property. RESIGNATION OF THE TRUSTEE. The Trustee or any Successor Trustee may resign by giving written notice thirty (30) days before such resignation is to take effect (unless a different period is mutually agreed upon) to the Settlor or, after the death of the Settlor, to all adult beneficiaries and the Guardian, Conservator, or other fiduciary of the estate of any minor or incapacitated beneficiary who may then be receiving or entitled to receive income hereunder. PROCEDURE FOR APPOINTMENT OF ADDITIONAL SUCCESSOR TRUSTEES. Upon resignation or removal of the Trustee, the Settlor if not 12.or trust company qualified to do business in the state in which the Trust is administered. No beneficiary for whom a Trust is established at the death of the Settlor shall have authority to appoint a Successor Trustee.. Therefore, if a Successor Trustee is not so appointed, the resigning or removed Trustee can secure the appointment of a Successor Trustee by a court of competent jurisdiction at the expense of the Trust. RELEASE OF THE TRUSTEE. On the Successor Trustee’s acceptance of its appointment, and after the resigning or removed Trustee has been paid all sums due it and has been indemnified to its satisfaction against liability properly incurred in its administration of the Trust, the resigning or removed Trustee shall deliver all trust assets in its possession to the Successor Trustee and shall be discharged from this Trust. The Successor Trustee shall succeed to all the rights, powers, duties, title, and interest of the prior Trustee under this Trust Agreement and shall have no liability for any act or omission of a prior Trustee. ARTICLE XI. POWERS AND DUTIES OF THE TRUSTEE THE PRUDENT PERSON RULE. The Trustee shall use in every circumstance that degree of judgment and care in the exercise of the rights and powers granted to it which a reasonably prudent person of like training and abilities would employ. The rights and powers granted herein are so granted primarily for the benefit and to secure the well-being of the Settlor, and only secondarily to protect the Trustee. ADDITIONAL POWERS AND DUTIES. The Trustee shall have the following powers and duties to be exercised as the Trustee in its discretion determines to be in the best interest of the Settlor without court order as hereinafter set forth: 1, The Trustee may take, without being limited by, all common law and Statutory powers and all specific rights and powers set forth herein, all proceedings and may exercise all rights and powers as if the absolute owner of the Trust Estate, except only as the Trustee is otherwise specifically limited or restricted in this Trust Agreement or by rules of law which the Settlor has no power to change. The failure to repeat some statutory powers of this Trust Agreement though others are set forth herein shall not be construed as evidence of Settlor’s intention to proscribe exercise by Trustee of any of the statutory powers. 13,No one dealing with the Trustee in any matter concerning the Trust shall be required to investigate or determine the Trustee’s authority or the validity or advisability of any transaction or to see to the proper exercise of the Trustee’s powers or to follow. the disposition of monies or property delivered to the Trustee. The Trustee shall recognize that the rights and powers granted by this Trust Agreement are for positive and affirmative use for the primary and secondarily for the protection of the Trustee. The Trustee may rely upon any letter, telegram, notice or other demand or information believed by the Trustee to be genuine and to have been executed or given by the person or persons purporting to execute or give it. Until the Trustee shall have received written notice of any birth, marriage, death or other event upon which the right to payments from the Trust may depend, the Trustee shall incur no liability for disbursements made in good faith to persons whose interests may have been affected by such event. No judicial approval or order of any court, officer or tribunal shall be necessary in the making of any decision or the doing of any act by the Trustee. The Settlor hereby relieves the Trustee from any restrictions imposed by any applicable law or regulation restricting the manner in which either trust income or principal may be invested. In addition, the Trustee is authorized to utilize the services of investment advisors and to confer on such investment advisors full discretionary authority to manage, buy and sell and otherwise provide advisory and management services with respect to all or any part of the securities contained in the Trust Estate pursuant to such guidelines as the Trustee may establish for such investment advisors. The Trustee shall have full power and authority to buy, sell and trade in securities of any kind, including puts, calls, straddles, "short" sales and other options of every kind, and for such purpose, may maintain and Operate margin accounts with brokers and may also pledge any securities held or purchased by the Trust as security