When her father dies, survived by his second wife, daughter from first marriage sues for children's rights in family trust.

Press Release provided by Michael E Freedman on November 8, 2016

LawyerCentral.com, November 8, 2016 — CALIFORNIA — On March 7, 2005, Steven Zamlich ("Steve") and his wife Geertje met with their attorney to create a trust that was simple, and served the purpose of taking care of each other on the death of the first spouse to die, and that gave each other the power to revoke or amend the trust upon the death of the first spouse to die.

The trust created a bypass trust for the benefit of Steven's children from a prior marriage. Plaintiff Lisa DeCarlo, one of Steven's children, claimed that this bypass trust should have been irrevocable, and not subject to the surviving spouse's power to revoke.

On April 20, 2005, they executed the Zamlich Family Trust. Stephen Zamlich died on February 28, 2014. All property of the Trustors is community property. On October 28, 2014, Petitioner Lisa DeCarlo filed her Petition to "modify trust instrument, to interpret trust instrument, for removal of trustee." Ms. DeCarlo claimed that the attorney for the Trustors made a drafting error in the Trust instrument and requested that the court "reform" the trust instrument to create an irrevocable bypass trust for the benefit of Steven's children and that the surviving spouse would not be entitled to any principal from the bypass trust. Ms. DeCarlo also sought removal of Geertje Zamlich as Trustee and sought attorney fees and costs.

Plaintiff's Contentions:

Ms. DeCarlo claimed that Article 2 of the Zamlich Family Trust providing the surviving spouse with the power to change any beneficiary, amend any provision, and revoke the Trust in whole or in part must be an attorney drafting error. She produced testimony of witnesses who claimed that Stephen Zamlich told them that he would "take care of" his kids on his death.

Defendant's Contentions:

In order to prove reformation, Lisa DeCarlo must prove by clear and convincing evidence the alleged "true" intent of the Settlors, and that the estate planning attorney made a mistake when he reduced that intent to writing.

Ms. DeCarlo failed to produce sufficient evidence let alone clear and convincing evidence. Ms. DeCarlo's evidence of the alleged "true" intent of the Settlor was nothing more than statements of nine or possibly ten witnesses who stated that Stephen Zamlich told them that he planned to "take care of" his kids on his death. Ms. DeCarlo could point to no specific fact to support her claim that the drafting attorney made an error in carrying out Stephen's intent. On the contrary, the facts establish that Stephen's intent was to grant the surviving spouse with the power to amend or revoke the trust. The facts demonstrated that Stephen wanted his spouse to have the power of revocation. Stephen's purpose was to create a plan that provided each spouse with the power of revocation and a default dispositive provision that could be revoked or amended by the surviving spouse. Stephen was fully cognizant of the fact that his children could be disinherited or not, depending on Geertje's judgment, and that is exactly what he wanted.


Michael E Freedman

Michael E Freedman

Freedman Law Firm

Attorney Michael Freedman is a Member of Freedman Law Firm, a law firm in San Francisco, California. As a lawyer in San Francisco, CA, attorney Freedman serves San Francisco County, as well as clients throughout California.
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