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Andrew K. Schultz (215917)
WITHERSPOON & SIRACUSA
1550 Bryant Street, Suite 725
San Francisco, CA 94103-4879
Telephone (415) 552-1814
Facsimile (415) 552-2158
Email aschultz@witsir.com
Attorneys for Herb Thomas,
Successor Trustee
ELECTRONICALLY
FILED
Superior Court of California,
County of San Francisco
SEP 04 2013
Clerk of the Court
BY: ELIZABETH FONG
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
GITY AND COUNTY OF SAN FRANCISCO
THE ROSIA L. HART
REVOCABLE TRUST
dated May 19, 2004
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FILED BY FAX
NUMBER: PTR-06-288755
OBJECTIONS TO PETITION FOR ORDER
APPROVING FIRST AMENDMENT TO
ROSIA L. HART REVOCABLE TRUST
Date: September 10, 2013
Time: 9:00 a.m.
Dept: Probate, Room 204
Cross Ref: Case No. PCN-06-288756
The Conservatorship of Rosia Lee Hart
Objector, Herb Thomas, as Successor Trustee of the Rosia L. Hart Revocable Trust,
presents his Objections to Petition for Order Approving First Amendment to Rosia L.
Hart Revocable Trust, alleging:
4. Objector is a private professional fiduciary licensed in the State of California.
On May 24, 2006, Objector was appointed temporary conservator of Rosia Hart's estate only.
On that same day, Mrs. Hart's trust, the Rosia L. Hart Revocable Trust dated May 19, 2004
{the “Trust”), was brought under the continuing supervision of this Court, and Objector was
appointed temporary successor trustee. On November 16, 2006, Objector was appointed
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probate conservator of Mrs. Hart's estate and also successor trustee of the Trust. At all times
relevant hereto, Objector has been and remains the duly appointed and acting successor
trustee of the Rosia L. Hart Revocable Trust.
Following a petition for instructions by Objector, by Order dated February 11, 2013,
Objector was instructed to make transfers of all of the property remaining in the conservator-
ship estate such that no assets would remain in the conservatorship and title to all of Mrs.
Hart's remaining assets would be held by her Trust.
Following these transfers, by Order dated February 28, 2013, the conservatorship was
terminated, and by Order dated August 14, 2013, Objector’s final accounting as conservator
was approved by this Court and he was discharged as conservator.
2. Because these proceedings were established in conjunction with the conserva-
torship proceedings which have now been terminated, some of the record in the conservator-
ship proceedings is relevant hereto. in particular, Objector, as successor trustee, is filing with
these Objections a request that the Court take Judicial Notice under California Evidence Code
section 452(d)(1) of the Psychological Evaluation of Rosia Lee Hart filed in the Conservator-
ship of Rosia Lee Hart, case number PCN-06-288576, on September 11, 2006. This report
was prepared by Abraham Nievod, Ph.D., J.D., following approximately 10 hours of interviews
with Mrs. Hart spanning three days, July 29, August 2 and August 15, 2006. Because this
document was filed in the confidential file of the conservatorship proceedings, Objector has
not attached a copy to his Request for Judicial Notice, but he will file a copy herein if so
directed by the Court, and he will quote and refer to it in the following sections.
3. According to the information Mrs. Hart provided to Dr. Nievod, she was born in
Tensas Parish, Louisiana on June 8, 1979, so she is now 94 years old (p. 2)'. He father was a
cotton sharecropper, and her family’s ability to survive depended on finishing the cotton
harvest each year (p. 2). !f the cotton harvest was finished, she was able to attend school for
| All references herein, unless otherwise indicated, are to the Psychological Evaluation of Rosia
Lee Hart prepared by Abraharn Nievod, Ph.D., J.D., and filed in case number PCN-06-288576,
Conservatorship of Rosia Lee Hart, on September 11, 2006.
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three months, and if it was not finished, she did not attend at all (p. 2). According to Mrs. Hart,
she was only able to attend school for six or seven years while growing up, and only for three
months or less each of those years (p. 2).
4. Mrs. Hart married a first time, and then moved to San Francisco in 1942, when
her first husband was serving in the Army in the Pacific (p. 2-3). They divorced after the war,
and in 1948, she met David Hart, whom she married in 1949 (p. 3). They remained married
for nearly 50 years until his death in 1997 (p. 3). During their marriage, Mr. Hart worked as an
auto mechanic, eventually opening his own garage, and Mrs. Hart worked for over 50 years as
a maid at the St. Francis Hotel (p. 3-4). Mrs. Hart told Dr. Nievod that she and her husband
were very similar in temperament, and in particular, that they were both very energetic and
“workaholics” (p. 3). Through their hard work, the two managed to purchase three properties
in San Francisco during their marriage (p. 4). The first was their residence on DeHaro Street,
which they bought in 1954, and where they lived for 50 years (p. 4). In 1976, they bought a
commercial building on Newhall Street, where Mr. Hart ran his own auto garage (p. 4). In
1995, after Mrs. Hart retired from the St. Francis Hotei, the coupled remodeled the building so
that Mrs. Hart could open a laundromat in the building as weil (p. 4). In 1987, the couple
purchased @ second residential property on Argonaut Street {p. 4).
5. Mrs. Hart told Dr. Nievod that during their marriage Mr. Hart had a series of
girlfriends, and that he used the money Mrs. Hart earned from working at the St. Francis to
support them (p. 3). Mrs. Hart said that Mr. Hart dated one woman, Dorothy Freeman, for 18
or 19 years, and that they had a daughter, Alvira, who then came fo live with the Harts for
approximately 25 years (p. 3). After he stopped seeing Ms. Freeman, he began dating
another woman, Selser Vance (p. 3). Mrs. Hart said that Mr. Hart convinced her to buy the
property on Argonaut Street in order to move Selser Vance and her daughter Jessica into the
property (p. 3). After Mr. Hart died, Selser and Jessica Vance sued Mrs. Hart, stating that Mr.
Hart was Jessica’s father and that Mr. Hart had promised to support Jessica financially and
had also promised her the Argonaut house (p. 4). After a trial and during an appeal, the
parties settled. Mrs. Hart said she paid $100,000 (it is unclear whether this went towards her
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attorney's fee or settlement with the Vances), as well as transferring 50% of the property to
Jessica Vance and agreeing that she could live there until 2008, when the property would be
sold and the proceeds divided between them (p. 4-5)? (That sale and division of proceeds did
take place according to the terms of their settlement during the administration of the Trust
under this Court’s supervision.)
€. Mrs. Hart told Dr. Nievod that because she had so little opportunity for educa-
tion growing up, she felt she could not handle finances on her own (p. 3 & 5) and that, until her
husband died, he handled all of the couple's finances and made all of the financial decisions in
the marriage (p. 5). A number of times during the interview she told to Dr. Nievod that she felt
she had worked hard for many years, only to have her husband spend the money she earned
on the women he was dating outside their marriage, but she felt she had no choice, because
she needed her husband and wanted fo keep the marriage intact (p. 3). She told Dr. Nievod
that when she was paid at the hotel, she would come home and give her paycheck to her
husband, and she never knew what happened to her money (p. 3).
7. Following her husband's death in 1997, Mrs. Hart executed a first trust.
Objector and his attorneys have never obtained a copy of this trust. Mrs. Hart acknowledged
to Dr. Nievod that she had executed a trust in 1997, but said that Alvira “made her do the trust”
{p. 4). She said that Alvira had a trust prepared in which Alvira herself was the principal
beneficiary (p. 6). According to Mrs. Hart, Alvira told Mrs. Hart where to sign and she complied
rather than start an argument with her (p. 6).
8. Mrs. Hart told Dr. Nievod that after her husband died, she feit anxious and
stressed about her finances, because she felt she was not capable of managing them herself
(p. 5). She said she had a number of medical problems that contributed to her stress, but she
could not be specific as to the type of medical problem or treatment (p. 5).
2 According to pubtic records, it was Mrs. Hart who initiated the litigation, bringing an action
against the Vances for an accounting and partition of the Argonaut property. The Vances then counter-
claimed with a number of causes of action. Also, when the Harts bought the Argonaut property, they
took title to the property at that time with Jessica Hart, the three of them all joint tenants, so Jessica had
already become a 50% owner of the property by operation of law upon the death of Mr. Hart.
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a At some point, Mrs. Hart was introduced to Gregory Wiggins by Alvira, who was
dating him (p. 4). In one interview, she said that Alvira began dating Mr. Wiggins in 1993 and
in another in 2001 or 2002 (p. 4}. Similarly, in one interview, she said Mr. Wiggins began
helping around her laundromat in 1993 and in another in 2001 or 2002 (p. 4)(the later date
seems more likely). In any event, Mr. Wiggins began stopping by the laundromat each day to
help out with some of the tasks (p. 4-5). Mrs. Hart said she liked Mr. Wiggins because he
seemed like a “good man” (p. §). She was impressed by his energy, and he seemed to be a
“workaholic” who kept the laundromat clean and fock pride in working hard (p. 5). Although
Mrs. Hart was vague about exactly how their relationship developed, eventually Mr. Wiggins
offered to help her with her finances, which she saw as an opportunity to relieve the stress and
anxiety she was feeling (p. 5).
10. As the Court well knows, Mr. Wiggins then led ‘irs. Hart through numerous
financial transactions, including refinancings, sales, purchases, and other transfers, ultimately
to her great financial detriment. These transactions have been previously discussed in detail
in Objector's Petition for instructions Regarding the Management of the Settior’s Real
Property and Finances, filed herein on August 17, 2012, and Objector will not review them all
again herein, with the exception of some aspects of the transaction regarding Mrs. Hart's
Newhall Street property, which are relevant hereto. In August 2005, Mrs. Hart created
“Bayview Village, LLC,” a California limited corporation with herself and Mr. Wiggins as
members and Mr. Wiggins as manager, and she transferred title to her Newhall Street
property to the LLC. Objector was informed that Mr. Wiggins had been attempting to convince
Mrs. Hart te tear down the Newhall property and redevelop it for some time, but that Mrs. Hart
had been resistant, at least until a fire in the property in November 2005 made renovation
unavoidable. The San Francisco Fire Inspector later ruled the fire to be arson because it had
been intentionally set at multiple points. Following his appointment, Objector learned that Mr.
Wiggins met repeatedly with an architectural firm, Baurn Thornley, as well as with the San
Francisco Redevelopment Agency and neighborhood groups in the Bayview in his efforts to
redevelop the property, sometimes with Mrs. Hart but often not, always holding himself out as
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the owner and Mrs. Hart as his aunt (though they are no relation). Objector learned that Baum
Thornley had completed a design and received cost estimates to demolish the existing
structure and replace it with a 76 unit, multi-family apartrnent building, approximately 25,000
square feet in size, with about 5,000 square feet of commercial space on the ground floor and
underground parking for 16 vehicles. Baum Thorniey was paid approximately $168,000 from
Mrs. Hart's funds for this work and claims another $112,000 remains outstanding. The total
cost of the project was estimated to be over $12 million, but, as planned, the project could
qualify for a morigage of only $6 million, requiring an infusion of over $6 million in capital,
which Mrs. Hart certainly could not provide. Furthermore, the project did not have a developer,
a contractor or a contract, no project financing and no permits in hand. Because the project
was both financially impossible and unworkable on any practical levei, this Court authorized
Petitioner to take no action to preserve any aspect of the project.
41. Mrs. Hart told Dr. Nievod that she and her husband had always talked about
redeveloping their Newhall Street property (p. 5). Her idea was te develop the property as
units for low-income, African-American senior citizens (p. 6). After her husband died, she
continued to think about the property, but she was reluctant to initiate the redevelopment
process by herself (p. 6). After the fire occurred, Mr. Wiggins convinced Mrs. Hart to form a
business that would be in charge of the redevelopment of the property (p. 6). Mrs. Hart
referred to the business as the “LLC” (p. 6). She recalled in uncertain terms working with an
attorney to draw up the LLC (p. 6). She indicated that she wanted to reward Mr. Wiggins for
his hard work by giving him a percentage of the LLC, but when asked what percentage of the
LLC she gave him, she was not sure (p. 6). She could not recall the terms of the agreement
she signed with Mr. Wiggins (p. 6). She did not remember whether she had ever specified the
percentage of the business she was giving him (p. 6). Dr. Nievod asked Mrs. Hart if she had
transferred title to the Newhall Street property into the name of the LLC (p. 6). Mrs. Hart
indicated that she understood that she retained full ownership of the property (p. 6). She
indicated that she wanted the LLC to have authority to run the business of redevelopment but
that did not mean she gave Mr. Wiggins ownership rights to the Newhall Street property (p. 6).
OBJECTIONS TO PETITION FOR ORDER
APPROVING FIRST AMENDMENT TO TRUST 6 CASE NO, PTR-06-288755Oo wo YW A A m& ww Ne
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12. On May 19, 2004, Mrs. Hart executed a second trust, the trust which is currently
under this Court's supervision herein, and she discussed the terms of this Trust with Dr.
Nievad. She toid Dr. Nievod that she executed the trust in 2003, which was incorrect (p. 6).
She told Dr. Neivod that the beneficiaries were (a) her nieces, Adeline Reed, Renee Reed and
Denise Williams, who would receive $15,000, $10,000 and $10,000 respectively; (b) her
brother, Pastor Henry Gaines, who would receive $100,000; and (c) Gregory Wiggins, who
would receive the remainder (p. 6-7). instead of Adeline Reed, Renee Reed and Denise
Williams, the Trust refers to Adeline Reed, Gayle R. Reed, and Rosalind D. Reed, but these
may be the same people (Gayle R. Reed's middie name may be Renee; Rosalind D. Reed's
middie name may be Denise, and her married name is Williams). Also, Gayle R. Reed and
Rosalind D. Reed are not nieces, but grand-nieces. Mrs. Hart’s recitation of the terms was
otherwise correct. When asked, however, Mrs. Hart had no idea of the value of the properties
that she had transferred into the Trust, nor did she have any idea as to the value of the
rernainder of the estate after her specific bequests (p. 7).
13. Furthermore, she told Dr. Nievod that she had additional intentions that were
not included in the trust (p. 7). Similar to the desire she had expressed to use her Newhall
Street property to benefit the needy, she told Dr. Nievod that she had a long-term goal of
leaving money to a scholarship fund at a Negro college in Atlanta, Georgia, Morehouse
College (p. 7). She said that because she had never had the opportunity to have a “good
education” because of the conditions under which she grew up, she wanted other children
from lower-income or poor families to have that opportunity (p. 7). By donating to this college,
she would feel as though she was contributing to making life better for these children (p. 7).
Mrs. Hart was asked the reason why the contribution to Morehouse College did not appear in
the Trust. She did not know the reason (p. 7).
14, Following his interview of Mrs. Hart, which included a battery of formal psycho-
logical tests to evaluate her cognitive functioning, Dr. Nievod concluded that Mrs. Hart was
vulnerable to undue influence by Mr. Wiggins because of a number of factors (p. 28 et seq).
First, the tests administered by Dr. Nievod indicated diminished cognitive abilities, specifically
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impaired memory functions and disturbances of executive functioning, consistent with a
diagnosis of mild dementia (p. 29). Second, testing also suggested that Mrs. Hart was
intellectually impaired (p. 29). Third, Mrs. Hart demonstrated a limited ability to understand
and appreciate complex business matters (p. 28). Psychologically, Mrs. Hart was accustomed
to acquiesce to the opinions of a more dominant and seemingly more competent mate figure,
first her husband and then Mr. Wiggins (p. 29). Dr. Nievod also pointed out that once she
moved to Antioch, directly across the street from Mir. Wiggins, she was more isolated from alt
of her friends and dependent on him, primarily relying on him, for example, to provide the
means of going back and forth to San Francisco (p. 28).
48. Dr. Nievod then went on to analyze Mrs. Hart's condition under Probate Code
section 811 et seq (p. 30 - 31). Based on the results of the neuropsychological testing and his
interviews with Mrs. Hart and others, Dr. Nievod found that: 1) Mrs. Hart's ability for sustained
attention is impaired; 2) Mrs. Hart is able to learn new information at a minimal, concrete level
but has significantly impaired mernory functions; 3) Mrs. Hart is able to understand and
appreciate quantities but is unable to understand and appreciate complex business decisions;
4) Mrs. Hart is unable to plan, organize and carry out complex actions in her own rational self-
interest, and 5) Mrs. Hart is unable to use abstract concepts (p. 30). As a result of these
deficits, in Dr. Nievod's professional opinion, Mrs. Hart was not competent to plan, direct and
execute a contractual relationship or to make a gift of real property (p. 30). Furthermore, in his
professional opinion, Mrs. Hart did not understand the consequences of her contractual
relationship with Mr. Wiggins, and she was not able to assess the risks, benefits, or reason-
able alternatives involved in her contractual relationship with Mr. Wiggins (p. 30). in addition,
in his professional opinion, “the combination of Ms. Hart's impaired cognitive functions, her
mild dementia, and her low intellectual abilities significantly interfered with her ability to plan
and execute either an estate pian or testamentary documents, such as the 2004 Trust.”
46. Finally, Dr. Nievad summarized Mrs. Hart's vulnerability to undue influence (p.
31 et seq). Because of her deficits and circumstances,
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“Ms. Hart must rely on those whom [she] trusts and relies upon for heip in these critical
areas. Anyone who assures a role and trust and confidence in [her] life is capable of
manipulating her for his or her own ends. Mr. Wiggins assumed this role of trust and
confidence in Ms. Hart's life... Mr. Wiggins convinced Ms. Hart that he would care for
her and help her with her business. Ms. Hart came to trust and rely on Mr. Wiggins to
occupy an increasingly large and more central roie in Ms. Hart's life. Ms. Hart came to
trust and rely on Mr. Wiggins to manage the financial aspects of her life, which [had]
caused her to feel anxious and “stressed” since the death of her husband. When Mr.
Wiggins approached Ms. Hart with a number of business decisions, Ms. Hart acqui-
esced without understanding or appreciating the nature of the business decisions
and/or contractual relationships” (p. 32).
17. ‘One aspect that is unusual and noteworthy regarding Mrs. Hart is that she
continued to place great trust in Mr. Wiggins and rely upon him, and apparently only him, for
many years even after being alerted to his wrong-doing. Most of the transactions involving her
property and Mr. Wiggins took place in 2004 and 2005. in early 2006, San Francisco and
Contra Costa Adult Protective Services received reports frorn multiple independent sources
expressing concern about Mr. Wiggins's actions with respect to Mrs. Hart. Adult Protective
Service investigators began meeting with Mrs. Hart and explaining their concerms, and also
explaining that Mr. Wiggins was alleged to have previously taken the real property of a elderly,
demented man already under a conservatorship in San Francisco, Kenneth Wilson, case
number PCN-04-286062. Mrs. Hart's conservatorship and these trust proceedings were first
established in May 2006. Nevertheless, it was only in March 2011, when Objector was able to
speak with Mrs. Hart following the hearing at which the Court granted Objector’s request for
the recovery of Mrs. Hart's property from Mr. Wiggins and damages against him, that for the
very first time Mrs. Hart expressed to him some insight into Mr. Wiggins's abuse, and she also
expressed at least some willingness to meet with Objector. For the first five years that
Objector served as conservator and trustee for Mrs. Hart, she refused to provide any informa-
tion to him, accept any assistance from him or communicate with him in any way, and Mrs.
Hart sometimes refused to speak with this Court's Investigators, all of which Objector believes
was likely the result of Mr. Wiggins’s influence. Furthermore, Mr. Wiggins continued to act as
an agent for Mrs. Hart. For example, in August 2007, he wrate to the Vances in the Argonaut
property and demanded that they re-direct their rent payments from Objector back to him.
When a pipe burst in the Argonaut property in November 2009, Mr. Wiggins visited the
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property and took photographs, contacted the San Francisco Building Departrnent claiming to
be Mrs. Hart's representative, and atternpted to file a insurance claim. When Objector went to
the bank to obtain information regarding Mrs. Hart's mortgages, the bank refused to honor his
authority, saying that they had specific instructions to speak only with Mrs. Hart or Mr.
Wiggins.
18. In May 2008, Objector's attorneys received a call from Contra Costa Adult
Protective Services, who had received a report from Kaiser Permanente in San Francisco that
Mrs. Hart had presented in the company of Mr. Wiggins, stating that Objector had core into
her life and taken over all her money and requesting a psychological evaluation in order to
terminate the conservatorship. Objector’s attorney spake with a medical social worker at
Kaiser, who reported that, contrary to Mrs. Hart’s request, their subsequent cognitive testing in
fact confirmed that Mrs. Hart did not possess legal capacity.
19. Mrs. Hart's conservatorship was terminated by Order dated February 28, 2013.
lt was terminated, with Objector's agreement, because all of the assets in the conservatorship
had been transferred to the Trust and could be managed by Objector as successor trustee,
and so there was no reason to maintain the conservatorship. It was not terminated based on a
finding that Mrs. Hart had recovered capacity to manage her own affairs and was no longer
vulnerable to undue influence, and no such medical or psychological evidence was presented
in the record which would support such a finding.
20. Objector is neither a beneficiary nor an heir-at-law of Mrs. Hart and takes no
position regarding Mrs. Hart's request to change the beneficiaries of her Trust. Objector does
abject to the request to amend the trust to make Andrew Smith, or in the event that he is
unavailable, his daughter, Jacqueline Smith, successor trustee of the Trust.
21. Andrew Smith now appears to fill the role in Mrs. Hart's life previously filled by
first her husband and then Gregory Wiggins. He is the pastor of her church, a position of
respect and authority. Mrs. Hart states that she has known him since he was born, though
Objector does not know whether they have always been particularly close. Since Mrs. Hart
has become alienated from Mr. Wiggins, however, Objector is informed and believes that
OBJECTIONS TO PETITION FOR ORDER
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least several times a week. Andrew Smith also lives in Antioch and provides transportation for
Mrs. Hart to and from San Francisco. Whenever Objector tries to contact Mrs. Hart, Andrew
Smith replies on her behalf, and on the few occasions that Objector and Mrs. Hart have met in
person, Andrew Smith has also been present. Mrs. Hart appears to have a pattem of placing
all her trust in and dependence upon one single man, and she is extremely vulnerable to
undue influence from whomever fills that role in her life. The issue is not whether Andrew
Smith is well-intentioned or ill-intentioned. Rather, the issue is that, because he is the person
currently filling that role is Mrs. Hart’s life, she cannot help but be extremely susceptible to
undue influence by him.
22. A trust is not a contract, but to the extent that it is like a contract between the
settior and the trustee, Mrs. Hart is not competent to create or enter into such a relationship.
in Dr. Nieved's professional opinion, Mrs. Hart was not cornpetent to plan, direct and execute a
contractual relationship, she did not understand the consequences of a contractual relation-
ship, and she was not able to assess the risks, benefits, or reasonable alternatives involved in
a contractual relationship, as was demonstrated by her lack of understanding regarding the
creation and operation of Bayview Village LLC. Objector knows first-hand from his meetings
with Mrs. Hart that she is very upset that she does not control her own property, but making
Andrew Smith her trustee will not return control of her property to her, and Objector does not
believe Mrs. Hart understands fully all the risks and consequences of naming Andrew Smith,
or anyone, fo be her trustee.
23. Mrs. Hart wishes fo make Andrew Smith both trustee and residuary beneficiary.
As residuary beneficiary, his self-interest will be to preserve as much of the trust corpus for his
eventual inheritance as possible. As trustee, he will be responsible for paying Mrs. Hart's
living expenses. Mrs. Hart is 94 years old and currently lives alone at home. There is a very
real possibility that she may someday require additional personal care. if her expenses
increase for any reason and Andrew Smith is her trustee, his duty as trustee and self-interest
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as residuary beneficiary will conflict. It would be better for Mrs. Hart to have a trustee who is
not also a beneficiary of her estate, so no such conflict exists.
24, Objector does not make these objections in order to preserve his own position
as trustee. As Objector has previously offered, he is willing to voluntarily step aside as trustee,
but only for another professional fiduciary. Mrs. Hart could interview professional fiduciaries,
assisted by Andrew Smith if she wishes, and choose the fiduciary with whom she feels most
comfortable. Given the very great vulnerability to undue influence which Mrs. Hart has
dernonstrated in the past, Objector believes that it is in her best interest to continue to have a
trustee who is neutral, professional, and not a beneficiary of her estate plan, as well as
remaining under this Court's continuing supervision.
25. Objector requests that, notwithstanding the language of the First Amendment
to Rosia L. Hart Revocable Trust nor any Order of this Court otherwise approving that
Amendment, Herb Thomas remain the successor trustee of the Rosia L. Hart Revocable Trust
dated May 19, 2004 until further order of the Court explicitly appointing a successor trustee.
26. The names and addresses of those who are entitled to notice are:
Rosia Lee Hart
3133 Crestline Court
Antioch, CA 94531
Adeline Reed
306 Portland Avenue
Oakland, CA 94606
Gayle R. Reed
2389 Flatley Circle
Fairfield, CA 94533
Rosalind Reed Williams
4766 Stonewood Drive
Fairfield, CA $4531
Pasior Henry Gaines
1490 Kennedy Avenue
Weed, CA 96094
Gregory K. Wiggins
211 Tanager Way
Hercules, CA 94547
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Gregory K. Wiggins
PO Box 884621
San Francisco, CA 94188
Gregory K. Wiggins
3107 Crestline Court
Antioch, CA 94531%
Reverend Andrew Smith
2709 Lotus Court
Antioch, CA 94531
Jackie (a.k.a. Jacqueline) Smith
2705 Lotus Court
Antioch, CA 94531
27. By ex parte Order dated October 11, 2006, a request by Baum Thornley
Architects for special notice herein was granted, and notice will be provided through their
attorneys, Coblentz, Patch, Duffy & Bass LLP, One Ferry Building, Suite 200, San Francisco,
CA 94111-4213.
WHEREFORE, Objector prays for an Order of the Court that, notwithstanding the
language of the First Amendment to Rosia L. Hart Revocable Trust nor any Order of this
Court otherwise approving that Amendment, Herb Thomas remain the successor trustee of the
Rosla L. Hart Revocable Trust dated May 19, 2004 until further order of the Court explicitly
appointing a successor trustee, and granting such further or other relief as the Court considers
proper under the circumstances.
Mt
iW
i
3 in Mrs. Hart's conservatorship and these trust proceedings, Mr. Wiggins has always been
provided with mail service at 3101 Crestline Court, Antioch, CA 94531. On January 22, 2013, Mr.
Wiggins was subjected to an Examination of Judgment Debtor by Objector’s itigatlon counsel of record
herein, Daniel A. Gonrad. When asked under oath, Mr. Wiggins stated that his legal address was PO
Box 884621, San Francisco, CA 94188. He then also stated that his home address is 211 Tanager Way,
Hercules, CA 94547.
OBJECTIONS TO PETITION FOR ORDER
APPROVING FIRST AMENDMENT TO TRUST 13 Case NO. PTR-06-288755Cm A mR wR Rm oN
10
| castify under penalty of perjury under the laws of the State of Califomia that the
foregoing is true and correct insalar as if is based on my own knowledge, and thal | believe if
to be true insofar as il is based on information and belief, and that this declaration was
executed at Alameda, Callfomia, on the date indicated below.
bate: > eShenlaor 4 2013 cud) lowes”
Suocessor Trustee of The Rosia L. Hari
Revocable Trust
GAJECTIONS TG PETITION FOR ORDER
APPROVING FIRST AMENDMENT TO TRUST 14 Case No, PTR-06-286758
Preview
Co Oo SB ND HA RB YN mw OM OR NM NB NR ROR mm mot oe 3 A A BR BP NHN KF BS Oo wm WM DH HW F&F YW HK S Andrew K. Schultz (215917) WITHERSPOON & SIRACUSA 1550 Bryant Street, Suite 725 San Francisco, CA 94103-4879 Telephone (415) 552-1814 Facsimile (415) 552-2158 Email aschultz@witsir.com Attorneys for Herb Thomas, Successor Trustee ELECTRONICALLY FILED Superior Court of California, County of San Francisco SEP 04 2013 Clerk of the Court BY: ELIZABETH FONG Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA GITY AND COUNTY OF SAN FRANCISCO THE ROSIA L. HART REVOCABLE TRUST dated May 19, 2004 ete ae te et ee Ne ee! See! FILED BY FAX NUMBER: PTR-06-288755 OBJECTIONS TO PETITION FOR ORDER APPROVING FIRST AMENDMENT TO ROSIA L. HART REVOCABLE TRUST Date: September 10, 2013 Time: 9:00 a.m. Dept: Probate, Room 204 Cross Ref: Case No. PCN-06-288756 The Conservatorship of Rosia Lee Hart Objector, Herb Thomas, as Successor Trustee of the Rosia L. Hart Revocable Trust, presents his Objections to Petition for Order Approving First Amendment to Rosia L. Hart Revocable Trust, alleging: 4. Objector is a private professional fiduciary licensed in the State of California. On May 24, 2006, Objector was appointed temporary conservator of Rosia Hart's estate only. On that same day, Mrs. Hart's trust, the Rosia L. Hart Revocable Trust dated May 19, 2004 {the “Trust”), was brought under the continuing supervision of this Court, and Objector was appointed temporary successor trustee. On November 16, 2006, Objector was appointed OBJECTIONS TO PETITION FOR ORDER APPROVING FIRST AMENDMENT TO TRUST CASE NO. PTR-06-288755,Co 68 DB A th BR BY Nk Roem S 6 &® DAB EGS FS probate conservator of Mrs. Hart's estate and also successor trustee of the Trust. At all times relevant hereto, Objector has been and remains the duly appointed and acting successor trustee of the Rosia L. Hart Revocable Trust. Following a petition for instructions by Objector, by Order dated February 11, 2013, Objector was instructed to make transfers of all of the property remaining in the conservator- ship estate such that no assets would remain in the conservatorship and title to all of Mrs. Hart's remaining assets would be held by her Trust. Following these transfers, by Order dated February 28, 2013, the conservatorship was terminated, and by Order dated August 14, 2013, Objector’s final accounting as conservator was approved by this Court and he was discharged as conservator. 2. Because these proceedings were established in conjunction with the conserva- torship proceedings which have now been terminated, some of the record in the conservator- ship proceedings is relevant hereto. in particular, Objector, as successor trustee, is filing with these Objections a request that the Court take Judicial Notice under California Evidence Code section 452(d)(1) of the Psychological Evaluation of Rosia Lee Hart filed in the Conservator- ship of Rosia Lee Hart, case number PCN-06-288576, on September 11, 2006. This report was prepared by Abraham Nievod, Ph.D., J.D., following approximately 10 hours of interviews with Mrs. Hart spanning three days, July 29, August 2 and August 15, 2006. Because this document was filed in the confidential file of the conservatorship proceedings, Objector has not attached a copy to his Request for Judicial Notice, but he will file a copy herein if so directed by the Court, and he will quote and refer to it in the following sections. 3. According to the information Mrs. Hart provided to Dr. Nievod, she was born in Tensas Parish, Louisiana on June 8, 1979, so she is now 94 years old (p. 2)'. He father was a cotton sharecropper, and her family’s ability to survive depended on finishing the cotton harvest each year (p. 2). !f the cotton harvest was finished, she was able to attend school for | All references herein, unless otherwise indicated, are to the Psychological Evaluation of Rosia Lee Hart prepared by Abraharn Nievod, Ph.D., J.D., and filed in case number PCN-06-288576, Conservatorship of Rosia Lee Hart, on September 11, 2006. OBJECTIONS TO PETITION FOR ORDER APPROVING FIRST AMENDMENT TO TRUST 2 Case No. PTR-06-288755eC we YW A A he BW NM oe RB NM MRM NM NN ROR mmm ee Co Aw WD MR SO OU UN OUR UO! OD three months, and if it was not finished, she did not attend at all (p. 2). According to Mrs. Hart, she was only able to attend school for six or seven years while growing up, and only for three months or less each of those years (p. 2). 4. Mrs. Hart married a first time, and then moved to San Francisco in 1942, when her first husband was serving in the Army in the Pacific (p. 2-3). They divorced after the war, and in 1948, she met David Hart, whom she married in 1949 (p. 3). They remained married for nearly 50 years until his death in 1997 (p. 3). During their marriage, Mr. Hart worked as an auto mechanic, eventually opening his own garage, and Mrs. Hart worked for over 50 years as a maid at the St. Francis Hotel (p. 3-4). Mrs. Hart told Dr. Nievod that she and her husband were very similar in temperament, and in particular, that they were both very energetic and “workaholics” (p. 3). Through their hard work, the two managed to purchase three properties in San Francisco during their marriage (p. 4). The first was their residence on DeHaro Street, which they bought in 1954, and where they lived for 50 years (p. 4). In 1976, they bought a commercial building on Newhall Street, where Mr. Hart ran his own auto garage (p. 4). In 1995, after Mrs. Hart retired from the St. Francis Hotei, the coupled remodeled the building so that Mrs. Hart could open a laundromat in the building as weil (p. 4). In 1987, the couple purchased @ second residential property on Argonaut Street {p. 4). 5. Mrs. Hart told Dr. Nievod that during their marriage Mr. Hart had a series of girlfriends, and that he used the money Mrs. Hart earned from working at the St. Francis to support them (p. 3). Mrs. Hart said that Mr. Hart dated one woman, Dorothy Freeman, for 18 or 19 years, and that they had a daughter, Alvira, who then came fo live with the Harts for approximately 25 years (p. 3). After he stopped seeing Ms. Freeman, he began dating another woman, Selser Vance (p. 3). Mrs. Hart said that Mr. Hart convinced her to buy the property on Argonaut Street in order to move Selser Vance and her daughter Jessica into the property (p. 3). After Mr. Hart died, Selser and Jessica Vance sued Mrs. Hart, stating that Mr. Hart was Jessica’s father and that Mr. Hart had promised to support Jessica financially and had also promised her the Argonaut house (p. 4). After a trial and during an appeal, the parties settled. Mrs. Hart said she paid $100,000 (it is unclear whether this went towards her OBJECTIONS TO PETITION FOR ORDER APPROVING FIRST AMENDMENT TO TRUST 3 Case No. PTR-06-288755WO OF SP te met Roe o 2 6 4S A ww & WB NH = attorney's fee or settlement with the Vances), as well as transferring 50% of the property to Jessica Vance and agreeing that she could live there until 2008, when the property would be sold and the proceeds divided between them (p. 4-5)? (That sale and division of proceeds did take place according to the terms of their settlement during the administration of the Trust under this Court’s supervision.) €. Mrs. Hart told Dr. Nievod that because she had so little opportunity for educa- tion growing up, she felt she could not handle finances on her own (p. 3 & 5) and that, until her husband died, he handled all of the couple's finances and made all of the financial decisions in the marriage (p. 5). A number of times during the interview she told to Dr. Nievod that she felt she had worked hard for many years, only to have her husband spend the money she earned on the women he was dating outside their marriage, but she felt she had no choice, because she needed her husband and wanted fo keep the marriage intact (p. 3). She told Dr. Nievod that when she was paid at the hotel, she would come home and give her paycheck to her husband, and she never knew what happened to her money (p. 3). 7. Following her husband's death in 1997, Mrs. Hart executed a first trust. Objector and his attorneys have never obtained a copy of this trust. Mrs. Hart acknowledged to Dr. Nievod that she had executed a trust in 1997, but said that Alvira “made her do the trust” {p. 4). She said that Alvira had a trust prepared in which Alvira herself was the principal beneficiary (p. 6). According to Mrs. Hart, Alvira told Mrs. Hart where to sign and she complied rather than start an argument with her (p. 6). 8. Mrs. Hart told Dr. Nievod that after her husband died, she feit anxious and stressed about her finances, because she felt she was not capable of managing them herself (p. 5). She said she had a number of medical problems that contributed to her stress, but she could not be specific as to the type of medical problem or treatment (p. 5). 2 According to pubtic records, it was Mrs. Hart who initiated the litigation, bringing an action against the Vances for an accounting and partition of the Argonaut property. The Vances then counter- claimed with a number of causes of action. Also, when the Harts bought the Argonaut property, they took title to the property at that time with Jessica Hart, the three of them all joint tenants, so Jessica had already become a 50% owner of the property by operation of law upon the death of Mr. Hart. OBJECTIONS TO PETITION FOR ORDER APPROVING FIRST AMENDMENT TO TRUST 4 CASE No. PTR-06-288755Oo eo MS A A f& BY NH RNR BR RRR RRR mete os Ce Be RH OS OU fe ON OS a At some point, Mrs. Hart was introduced to Gregory Wiggins by Alvira, who was dating him (p. 4). In one interview, she said that Alvira began dating Mr. Wiggins in 1993 and in another in 2001 or 2002 (p. 4}. Similarly, in one interview, she said Mr. Wiggins began helping around her laundromat in 1993 and in another in 2001 or 2002 (p. 4)(the later date seems more likely). In any event, Mr. Wiggins began stopping by the laundromat each day to help out with some of the tasks (p. 4-5). Mrs. Hart said she liked Mr. Wiggins because he seemed like a “good man” (p. §). She was impressed by his energy, and he seemed to be a “workaholic” who kept the laundromat clean and fock pride in working hard (p. 5). Although Mrs. Hart was vague about exactly how their relationship developed, eventually Mr. Wiggins offered to help her with her finances, which she saw as an opportunity to relieve the stress and anxiety she was feeling (p. 5). 10. As the Court well knows, Mr. Wiggins then led ‘irs. Hart through numerous financial transactions, including refinancings, sales, purchases, and other transfers, ultimately to her great financial detriment. These transactions have been previously discussed in detail in Objector's Petition for instructions Regarding the Management of the Settior’s Real Property and Finances, filed herein on August 17, 2012, and Objector will not review them all again herein, with the exception of some aspects of the transaction regarding Mrs. Hart's Newhall Street property, which are relevant hereto. In August 2005, Mrs. Hart created “Bayview Village, LLC,” a California limited corporation with herself and Mr. Wiggins as members and Mr. Wiggins as manager, and she transferred title to her Newhall Street property to the LLC. Objector was informed that Mr. Wiggins had been attempting to convince Mrs. Hart te tear down the Newhall property and redevelop it for some time, but that Mrs. Hart had been resistant, at least until a fire in the property in November 2005 made renovation unavoidable. The San Francisco Fire Inspector later ruled the fire to be arson because it had been intentionally set at multiple points. Following his appointment, Objector learned that Mr. Wiggins met repeatedly with an architectural firm, Baurn Thornley, as well as with the San Francisco Redevelopment Agency and neighborhood groups in the Bayview in his efforts to redevelop the property, sometimes with Mrs. Hart but often not, always holding himself out as OBJECTIONS TO PETITION FOR ORDER APPROVING FIRST AMENDMENT TO TRUST 3 Case NO, PTR-06-288755Oo © VY A WA FW Re RNR meee ett oS A & F BH = SF © ew BW A Hh RB BY DH = BS the owner and Mrs. Hart as his aunt (though they are no relation). Objector learned that Baum Thornley had completed a design and received cost estimates to demolish the existing structure and replace it with a 76 unit, multi-family apartrnent building, approximately 25,000 square feet in size, with about 5,000 square feet of commercial space on the ground floor and underground parking for 16 vehicles. Baum Thorniey was paid approximately $168,000 from Mrs. Hart's funds for this work and claims another $112,000 remains outstanding. The total cost of the project was estimated to be over $12 million, but, as planned, the project could qualify for a morigage of only $6 million, requiring an infusion of over $6 million in capital, which Mrs. Hart certainly could not provide. Furthermore, the project did not have a developer, a contractor or a contract, no project financing and no permits in hand. Because the project was both financially impossible and unworkable on any practical levei, this Court authorized Petitioner to take no action to preserve any aspect of the project. 41. Mrs. Hart told Dr. Nievod that she and her husband had always talked about redeveloping their Newhall Street property (p. 5). Her idea was te develop the property as units for low-income, African-American senior citizens (p. 6). After her husband died, she continued to think about the property, but she was reluctant to initiate the redevelopment process by herself (p. 6). After the fire occurred, Mr. Wiggins convinced Mrs. Hart to form a business that would be in charge of the redevelopment of the property (p. 6). Mrs. Hart referred to the business as the “LLC” (p. 6). She recalled in uncertain terms working with an attorney to draw up the LLC (p. 6). She indicated that she wanted to reward Mr. Wiggins for his hard work by giving him a percentage of the LLC, but when asked what percentage of the LLC she gave him, she was not sure (p. 6). She could not recall the terms of the agreement she signed with Mr. Wiggins (p. 6). She did not remember whether she had ever specified the percentage of the business she was giving him (p. 6). Dr. Nievod asked Mrs. Hart if she had transferred title to the Newhall Street property into the name of the LLC (p. 6). Mrs. Hart indicated that she understood that she retained full ownership of the property (p. 6). She indicated that she wanted the LLC to have authority to run the business of redevelopment but that did not mean she gave Mr. Wiggins ownership rights to the Newhall Street property (p. 6). OBJECTIONS TO PETITION FOR ORDER APPROVING FIRST AMENDMENT TO TRUST 6 CASE NO, PTR-06-288755Oo wo YW A A m& ww Ne ® PR REBBES Se RREREBHE AGS 12. On May 19, 2004, Mrs. Hart executed a second trust, the trust which is currently under this Court's supervision herein, and she discussed the terms of this Trust with Dr. Nievad. She toid Dr. Nievod that she executed the trust in 2003, which was incorrect (p. 6). She told Dr. Neivod that the beneficiaries were (a) her nieces, Adeline Reed, Renee Reed and Denise Williams, who would receive $15,000, $10,000 and $10,000 respectively; (b) her brother, Pastor Henry Gaines, who would receive $100,000; and (c) Gregory Wiggins, who would receive the remainder (p. 6-7). instead of Adeline Reed, Renee Reed and Denise Williams, the Trust refers to Adeline Reed, Gayle R. Reed, and Rosalind D. Reed, but these may be the same people (Gayle R. Reed's middie name may be Renee; Rosalind D. Reed's middie name may be Denise, and her married name is Williams). Also, Gayle R. Reed and Rosalind D. Reed are not nieces, but grand-nieces. Mrs. Hart’s recitation of the terms was otherwise correct. When asked, however, Mrs. Hart had no idea of the value of the properties that she had transferred into the Trust, nor did she have any idea as to the value of the rernainder of the estate after her specific bequests (p. 7). 13. Furthermore, she told Dr. Nievod that she had additional intentions that were not included in the trust (p. 7). Similar to the desire she had expressed to use her Newhall Street property to benefit the needy, she told Dr. Nievod that she had a long-term goal of leaving money to a scholarship fund at a Negro college in Atlanta, Georgia, Morehouse College (p. 7). She said that because she had never had the opportunity to have a “good education” because of the conditions under which she grew up, she wanted other children from lower-income or poor families to have that opportunity (p. 7). By donating to this college, she would feel as though she was contributing to making life better for these children (p. 7). Mrs. Hart was asked the reason why the contribution to Morehouse College did not appear in the Trust. She did not know the reason (p. 7). 14, Following his interview of Mrs. Hart, which included a battery of formal psycho- logical tests to evaluate her cognitive functioning, Dr. Nievod concluded that Mrs. Hart was vulnerable to undue influence by Mr. Wiggins because of a number of factors (p. 28 et seq). First, the tests administered by Dr. Nievod indicated diminished cognitive abilities, specifically OBJECTIONS TO PETITION FOR ORDER APPROVING FIRST AMENDMENT TO TRUST 7 Case No, PTR-06-2887550 OM RK RR WON RB NR RP NR RR NR RR mee ea A A RB ON &—§ SF 6 we UA A R&B Be 5 impaired memory functions and disturbances of executive functioning, consistent with a diagnosis of mild dementia (p. 29). Second, testing also suggested that Mrs. Hart was intellectually impaired (p. 29). Third, Mrs. Hart demonstrated a limited ability to understand and appreciate complex business matters (p. 28). Psychologically, Mrs. Hart was accustomed to acquiesce to the opinions of a more dominant and seemingly more competent mate figure, first her husband and then Mr. Wiggins (p. 29). Dr. Nievod also pointed out that once she moved to Antioch, directly across the street from Mir. Wiggins, she was more isolated from alt of her friends and dependent on him, primarily relying on him, for example, to provide the means of going back and forth to San Francisco (p. 28). 48. Dr. Nievod then went on to analyze Mrs. Hart's condition under Probate Code section 811 et seq (p. 30 - 31). Based on the results of the neuropsychological testing and his interviews with Mrs. Hart and others, Dr. Nievod found that: 1) Mrs. Hart's ability for sustained attention is impaired; 2) Mrs. Hart is able to learn new information at a minimal, concrete level but has significantly impaired mernory functions; 3) Mrs. Hart is able to understand and appreciate quantities but is unable to understand and appreciate complex business decisions; 4) Mrs. Hart is unable to plan, organize and carry out complex actions in her own rational self- interest, and 5) Mrs. Hart is unable to use abstract concepts (p. 30). As a result of these deficits, in Dr. Nievod's professional opinion, Mrs. Hart was not competent to plan, direct and execute a contractual relationship or to make a gift of real property (p. 30). Furthermore, in his professional opinion, Mrs. Hart did not understand the consequences of her contractual relationship with Mr. Wiggins, and she was not able to assess the risks, benefits, or reason- able alternatives involved in her contractual relationship with Mr. Wiggins (p. 30). in addition, in his professional opinion, “the combination of Ms. Hart's impaired cognitive functions, her mild dementia, and her low intellectual abilities significantly interfered with her ability to plan and execute either an estate pian or testamentary documents, such as the 2004 Trust.” 46. Finally, Dr. Nievad summarized Mrs. Hart's vulnerability to undue influence (p. 31 et seq). Because of her deficits and circumstances, OBJECTIONS TO PETITION FOR ORDER APPROVING FIRST AMENDMENT TO TRUST 8 CaSE No. PTR-06-288755SO CO ow CR th BR Wet peep ptt CO sR UR Net SS 19 “Ms. Hart must rely on those whom [she] trusts and relies upon for heip in these critical areas. Anyone who assures a role and trust and confidence in [her] life is capable of manipulating her for his or her own ends. Mr. Wiggins assumed this role of trust and confidence in Ms. Hart's life... Mr. Wiggins convinced Ms. Hart that he would care for her and help her with her business. Ms. Hart came to trust and rely on Mr. Wiggins to occupy an increasingly large and more central roie in Ms. Hart's life. Ms. Hart came to trust and rely on Mr. Wiggins to manage the financial aspects of her life, which [had] caused her to feel anxious and “stressed” since the death of her husband. When Mr. Wiggins approached Ms. Hart with a number of business decisions, Ms. Hart acqui- esced without understanding or appreciating the nature of the business decisions and/or contractual relationships” (p. 32). 17. ‘One aspect that is unusual and noteworthy regarding Mrs. Hart is that she continued to place great trust in Mr. Wiggins and rely upon him, and apparently only him, for many years even after being alerted to his wrong-doing. Most of the transactions involving her property and Mr. Wiggins took place in 2004 and 2005. in early 2006, San Francisco and Contra Costa Adult Protective Services received reports frorn multiple independent sources expressing concern about Mr. Wiggins's actions with respect to Mrs. Hart. Adult Protective Service investigators began meeting with Mrs. Hart and explaining their concerms, and also explaining that Mr. Wiggins was alleged to have previously taken the real property of a elderly, demented man already under a conservatorship in San Francisco, Kenneth Wilson, case number PCN-04-286062. Mrs. Hart's conservatorship and these trust proceedings were first established in May 2006. Nevertheless, it was only in March 2011, when Objector was able to speak with Mrs. Hart following the hearing at which the Court granted Objector’s request for the recovery of Mrs. Hart's property from Mr. Wiggins and damages against him, that for the very first time Mrs. Hart expressed to him some insight into Mr. Wiggins's abuse, and she also expressed at least some willingness to meet with Objector. For the first five years that Objector served as conservator and trustee for Mrs. Hart, she refused to provide any informa- tion to him, accept any assistance from him or communicate with him in any way, and Mrs. Hart sometimes refused to speak with this Court's Investigators, all of which Objector believes was likely the result of Mr. Wiggins’s influence. Furthermore, Mr. Wiggins continued to act as an agent for Mrs. Hart. For example, in August 2007, he wrate to the Vances in the Argonaut property and demanded that they re-direct their rent payments from Objector back to him. When a pipe burst in the Argonaut property in November 2009, Mr. Wiggins visited the OBJECTIONS TO PETITION FOR ORDER APPROVING FIRST AMENDMENT TO TRUST 9 Case No. PTR-06-288755a Oo C6 SS A HW & WwW 10 property and took photographs, contacted the San Francisco Building Departrnent claiming to be Mrs. Hart's representative, and atternpted to file a insurance claim. When Objector went to the bank to obtain information regarding Mrs. Hart's mortgages, the bank refused to honor his authority, saying that they had specific instructions to speak only with Mrs. Hart or Mr. Wiggins. 18. In May 2008, Objector's attorneys received a call from Contra Costa Adult Protective Services, who had received a report from Kaiser Permanente in San Francisco that Mrs. Hart had presented in the company of Mr. Wiggins, stating that Objector had core into her life and taken over all her money and requesting a psychological evaluation in order to terminate the conservatorship. Objector’s attorney spake with a medical social worker at Kaiser, who reported that, contrary to Mrs. Hart’s request, their subsequent cognitive testing in fact confirmed that Mrs. Hart did not possess legal capacity. 19. Mrs. Hart's conservatorship was terminated by Order dated February 28, 2013. lt was terminated, with Objector's agreement, because all of the assets in the conservatorship had been transferred to the Trust and could be managed by Objector as successor trustee, and so there was no reason to maintain the conservatorship. It was not terminated based on a finding that Mrs. Hart had recovered capacity to manage her own affairs and was no longer vulnerable to undue influence, and no such medical or psychological evidence was presented in the record which would support such a finding. 20. Objector is neither a beneficiary nor an heir-at-law of Mrs. Hart and takes no position regarding Mrs. Hart's request to change the beneficiaries of her Trust. Objector does abject to the request to amend the trust to make Andrew Smith, or in the event that he is unavailable, his daughter, Jacqueline Smith, successor trustee of the Trust. 21. Andrew Smith now appears to fill the role in Mrs. Hart's life previously filled by first her husband and then Gregory Wiggins. He is the pastor of her church, a position of respect and authority. Mrs. Hart states that she has known him since he was born, though Objector does not know whether they have always been particularly close. Since Mrs. Hart has become alienated from Mr. Wiggins, however, Objector is informed and believes that OBJECTIONS TO PETITION FOR ORDER APPROVING FIRST AMENDMENT TO TRUST 10 Case No. PTR-06-288755Andrew Smith was visiting Mrs. Hart every day for a period, and he continues to visit her at least several times a week. Andrew Smith also lives in Antioch and provides transportation for Mrs. Hart to and from San Francisco. Whenever Objector tries to contact Mrs. Hart, Andrew Smith replies on her behalf, and on the few occasions that Objector and Mrs. Hart have met in person, Andrew Smith has also been present. Mrs. Hart appears to have a pattem of placing all her trust in and dependence upon one single man, and she is extremely vulnerable to undue influence from whomever fills that role in her life. The issue is not whether Andrew Smith is well-intentioned or ill-intentioned. Rather, the issue is that, because he is the person currently filling that role is Mrs. Hart’s life, she cannot help but be extremely susceptible to undue influence by him. 22. A trust is not a contract, but to the extent that it is like a contract between the settior and the trustee, Mrs. Hart is not competent to create or enter into such a relationship. in Dr. Nieved's professional opinion, Mrs. Hart was not cornpetent to plan, direct and execute a contractual relationship, she did not understand the consequences of a contractual relation- ship, and she was not able to assess the risks, benefits, or reasonable alternatives involved in a contractual relationship, as was demonstrated by her lack of understanding regarding the creation and operation of Bayview Village LLC. Objector knows first-hand from his meetings with Mrs. Hart that she is very upset that she does not control her own property, but making Andrew Smith her trustee will not return control of her property to her, and Objector does not believe Mrs. Hart understands fully all the risks and consequences of naming Andrew Smith, or anyone, fo be her trustee. 23. Mrs. Hart wishes fo make Andrew Smith both trustee and residuary beneficiary. As residuary beneficiary, his self-interest will be to preserve as much of the trust corpus for his eventual inheritance as possible. As trustee, he will be responsible for paying Mrs. Hart's living expenses. Mrs. Hart is 94 years old and currently lives alone at home. There is a very real possibility that she may someday require additional personal care. if her expenses increase for any reason and Andrew Smith is her trustee, his duty as trustee and self-interest OBJECTIONS TO PETITION FOR ORDER APPROVING FIRST AMENDMENT TO TRUST lt CASE No. PTR-06-288755WO CR ~ H w B w et RP Re = oe ~~ —_ ~ BS FRE BER EFS FSF BWREBE SESE ES as residuary beneficiary will conflict. It would be better for Mrs. Hart to have a trustee who is not also a beneficiary of her estate, so no such conflict exists. 24, Objector does not make these objections in order to preserve his own position as trustee. As Objector has previously offered, he is willing to voluntarily step aside as trustee, but only for another professional fiduciary. Mrs. Hart could interview professional fiduciaries, assisted by Andrew Smith if she wishes, and choose the fiduciary with whom she feels most comfortable. Given the very great vulnerability to undue influence which Mrs. Hart has dernonstrated in the past, Objector believes that it is in her best interest to continue to have a trustee who is neutral, professional, and not a beneficiary of her estate plan, as well as remaining under this Court's continuing supervision. 25. Objector requests that, notwithstanding the language of the First Amendment to Rosia L. Hart Revocable Trust nor any Order of this Court otherwise approving that Amendment, Herb Thomas remain the successor trustee of the Rosia L. Hart Revocable Trust dated May 19, 2004 until further order of the Court explicitly appointing a successor trustee. 26. The names and addresses of those who are entitled to notice are: Rosia Lee Hart 3133 Crestline Court Antioch, CA 94531 Adeline Reed 306 Portland Avenue Oakland, CA 94606 Gayle R. Reed 2389 Flatley Circle Fairfield, CA 94533 Rosalind Reed Williams 4766 Stonewood Drive Fairfield, CA $4531 Pasior Henry Gaines 1490 Kennedy Avenue Weed, CA 96094 Gregory K. Wiggins 211 Tanager Way Hercules, CA 94547 OBJECTIONS TO PETITION FOR ORDER APPROVING FIRST AMENDMENT TO TRUST 12 Case No. PTR-06-288755bt woe YW RD eR mB w ON 10 Gregory K. Wiggins PO Box 884621 San Francisco, CA 94188 Gregory K. Wiggins 3107 Crestline Court Antioch, CA 94531% Reverend Andrew Smith 2709 Lotus Court Antioch, CA 94531 Jackie (a.k.a. Jacqueline) Smith 2705 Lotus Court Antioch, CA 94531 27. By ex parte Order dated October 11, 2006, a request by Baum Thornley Architects for special notice herein was granted, and notice will be provided through their attorneys, Coblentz, Patch, Duffy & Bass LLP, One Ferry Building, Suite 200, San Francisco, CA 94111-4213. WHEREFORE, Objector prays for an Order of the Court that, notwithstanding the language of the First Amendment to Rosia L. Hart Revocable Trust nor any Order of this Court otherwise approving that Amendment, Herb Thomas remain the successor trustee of the Rosla L. Hart Revocable Trust dated May 19, 2004 until further order of the Court explicitly appointing a successor trustee, and granting such further or other relief as the Court considers proper under the circumstances. Mt iW i 3 in Mrs. Hart's conservatorship and these trust proceedings, Mr. Wiggins has always been provided with mail service at 3101 Crestline Court, Antioch, CA 94531. On January 22, 2013, Mr. Wiggins was subjected to an Examination of Judgment Debtor by Objector’s itigatlon counsel of record herein, Daniel A. Gonrad. When asked under oath, Mr. Wiggins stated that his legal address was PO Box 884621, San Francisco, CA 94188. He then also stated that his home address is 211 Tanager Way, Hercules, CA 94547. OBJECTIONS TO PETITION FOR ORDER APPROVING FIRST AMENDMENT TO TRUST 13 Case NO. PTR-06-288755Cm A mR wR Rm oN 10 | castify under penalty of perjury under the laws of the State of Califomia that the foregoing is true and correct insalar as if is based on my own knowledge, and thal | believe if to be true insofar as il is based on information and belief, and that this declaration was executed at Alameda, Callfomia, on the date indicated below. bate: > eShenlaor 4 2013 cud) lowes” Suocessor Trustee of The Rosia L. Hari Revocable Trust GAJECTIONS TG PETITION FOR ORDER APPROVING FIRST AMENDMENT TO TRUST 14 Case No, PTR-06-286758