Donkin v. Donkin

Case Number: B293127

Court: Cal. Ct. App.

Date Filed: 2020-04-03

Case Brief – Donkin v. Donkin

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA
Date: 2025-09-04
Case Number: B293127
Disposition: The trial court’s order rejecting the trustees’ proposed interpretation of the Donkin Family Trust and affirming the beneficiaries’ right to seek distribution “as soon as practicable” is affirmed; respondents are awarded costs on appeal.

Holding

The court held that the 2002 amendment could not alter the irrevocable terms governing Trusts B and C, that the beneficiaries’ 2010 petition for surcharge and accounting was not a “contest” within the meaning of Probate Code § 16061.8 and therefore not time‑barred, and that the trust instrument required the trustees to distribute the assets of Trusts B and C outright “as soon as practicable” after Mary Donkin’s death; consequently, the trustees’ self‑representation did not constitute the unauthorized practice of law.

Narrative

Lead.
In a dispute that has spanned more than a decade, the California Court of Appeal affirmed that a family revocable trust, once its marital‑deduction bypass trusts become irrevocable, must be wound promptly in accordance with the original instrument, rejecting a later amendment that sought to give successor trustees sweeping discretionary authority. The decision also clarified the scope of Probate Code § 16061.8’s limitation period and rejected the contention that a self‑representing trustee engages in the unauthorized practice of law.

Procedural backdrop.
The case arose from the Donkin Family Trust, created in 1988 by Rodney E. Donkin, Sr., and Mary E. Donkin and amended in 2002. After Rodney Sr.’s death in 2002, the trust’s “Decedent’s Trust B” (the bypass trust) became irrevocable. Mary executed a contested amendment in 2004, shortly before her own death in 2005, inserting language that granted the successor trustees—Rodney Jr. and his wife Vicki—“complete discretion” to retain and manage the entire trust estate for the equal benefit of the primary beneficiaries.

Beneficiaries Annemarie Donkin and Lisa B. Kim filed a 2010 petition for surcharge and accounting, asserting that the trustees had failed to distribute Trusts B and C as required by the original instrument. The trustees responded with a 2014 petition for instructions, asking the court to interpret the contested amendment as superseding the original distribution provisions. The trial court, after extensive briefing, concluded (June 25, 2018) that: (1) the 2004 amendment could not affect Trusts B and C because those trusts were irrevocable at the time of Mary’s amendment; (2) the beneficiaries’ petition was not a “contest” and thus not subject to the six‑month limitation of Probate Code § 16061.8; and (3) the trust required distribution of the assets “as soon as practicable” after Mary’s death. The trustees appealed, and the appellate panel reviewed the order de novo.

Key factual matrix.

• Trust structure. The trust divided assets after the first spouse’s death into a “Survivor’s Trust A” (the surviving spouse’s share) and a “Decedent’s Marital Share,” which was further split into Trust B (the marital‑deduction bypass) and Trust C (the remainder).
• Irrevocability. The instrument expressly stated that Trusts B and C become irrevocable upon the first spouse’s death, a provision designed to lock in the federal marital deduction.
• Contested amendment. Mary’s 2004 amendment added a paragraph granting the successor trustees “complete discretion” over the entire trust after her death, without distinguishing between the survivor’s trust and the irrevocable bypass trusts.
• Beneficiaries’ claim. The beneficiaries argued that the amendment could not alter the distribution of Trusts B and C and that the trustees were obligated to allocate and distribute those shares outright “as soon as practicable” under the original language.

Issues presented.

1. Whether Mary possessed authority, after Rodney Sr.’s death, to amend the trust provisions governing Trusts B and C.
2. Whether the beneficiaries’ 2010 petition for surcharge and accounting constitutes a “contest” subject to Probate Code § 16061.8’s statute of limitations.
3. Whether the trust instrument creates a continuing discretionary spendthrift trust that permits the trustees to retain the assets of Trusts B and C indefinitely.
4. Whether self‑representation by the trustees in this probate dispute amounts to the unauthorized practice of law.

Court’s analysis.

Authority to amend irrevocable trusts.
The appellate court affirmed the trial court’s reliance on the plain language of the trust: Trusts B and C become irrevocable at the death of the first settlor. Under Probate Code §§ 15400‑15403, an irrevocable trust cannot be altered without the consent of all beneficiaries, a requirement absent here. The court cited Aguilar v. Aguilar (2008) 168 Cal.App.4th 35 and Heaps v. Heaps (2004) 124 Cal.App.4th 286, emphasizing that once a bypass trust is irrevocable, the settlor’s power to amend is extinguished. Consequently, Mary’s 2004 amendment could not affect the distribution scheme for Trusts B and C.

Statute of limitations.
Probate Code § 16061.8 imposes a six‑month limitation on actions “contesting” a trust. The court leaned heavily on the California Supreme Court’s decision in Donkin I (58 Cal.4th 412, 2013), which held that a petition seeking interpretation of a trust’s terms does not constitute a “contest” within the meaning of § 21311(a). The beneficiaries’ 2010 petition sought enforcement of an existing distribution provision, not a challenge to the validity of the trust or its amendment. Accordingly, the petition fell outside § 16061.8’s reach, and the trial court’s rejection of the trustees’ limitation‑argument was affirmed.

Interpretation of “continuing discretionary spendthrift trust.”
The trustees argued that the discretionary language—allowing distributions for “care and maintenance, medical needs, and education” and “extraordinary distributions”—created a continuing trust that could retain assets indefinitely. The appellate court applied the ordinary meaning rule (Probate Code § 21122) and the principle that every clause must be given effect (§ 21120). It read the mandatory distribution language—“the Trustee shall distribute the shares allocated to Primary Beneficiaries outright as soon as is practicable”—as controlling. The discretionary provisions were deemed preparatory, intended to address short‑term needs before the final division. The court rejected the trustees’ reading as one that would render the mandatory distribution clause meaningless, a result contrary to established canons of construction.

Unauthorized practice of law.
Relying on Finkbeiner v. Gavid (136 Cal.App.4th 1417, 2006), the court distinguished the present probate dispute from Ziegler v. Nickel (64 Cal.App.4th 545, 1998), where a non‑attorney trustee represented the trust in non‑probate litigation against a third party. Here, the trustees were litigating directly with beneficiaries over the trust’s terms—a core fiduciary function—not advocating on behalf of beneficiaries. The court concluded that self‑representation in a petition for instructions does not constitute the unauthorized practice of law, though it noted that counsel may be advisable to avoid unnecessary relitigation.

Disposition.
The appellate panel affirmed the trial court’s order, confirming that the trustees must distribute Trusts B and C outright “as soon as practicable” after Mary’s death, that the beneficiaries’ petition is not time‑barred, and that the trustees’ self‑representation is permissible. Respondents were awarded their costs on appeal, and the opinion was certified for partial publication.

Closing analysis.
Donkin v. Donkin reinforces two pivotal doctrines in California probate practice. First, it underscores that once a trust’s bypass provisions become irrevocable, any subsequent amendment—no matter how broadly worded—cannot retroactively alter those provisions. Practitioners must scrutinize the irrevocability trigger language in estate plans to anticipate and avoid futile amendment attempts. Second, the decision clarifies the boundary of § 16061.8, confirming that petitions for interpretation or enforcement of existing provisions are not “contests” and therefore escape the six‑month bar. This distinction will likely shape future strategic timing of beneficiary actions, especially in multi‑generational trusts where distribution timing is contested.

The court’s refusal to extend the unauthorized‑practice doctrine to self‑representing trustees in probate disputes preserves a pragmatic balance: trustees can seek judicial clarification without incurring prohibitive attorney fees, yet the decision leaves open the possibility that more complex or third‑party litigation may still trigger the prohibition. Future cases may test this line, particularly where trustees also stand as primary beneficiaries.

Overall, Donkin provides a clear roadmap for interpreting discretionary language in the context of mandatory distribution clauses and offers a definitive answer on the applicability of the probate contest limitation period—both essential considerations for California probate attorneys navigating trust administration and litigation.

Referenced Statutes and Doctrines

• Probate Code §§ 15400‑15403 – amendment of irrevocable trusts.
• Probate Code § 16061.8 – six‑month limitation on actions contesting a trust.
• Probate Code § 21311(a) – definition of “contest” for no‑contest clauses.
• Probate Code §§ 21120‑21122 – canons of trust construction (ordinary meaning, give effect to every clause).
• Estate‑tax marital deduction doctrine – underlying purpose of bypass trusts (see Donkin I, 58 Cal.4th 412).
• Doctrine of “no‑contest clause” enforceability – as interpreted in Donkin I and Donkin II.
• Unauthorized practice of law – Ziegler v. Nickel, 64 Cal.App.4th 545 (1998); Finkbeiner v. Gavid, 136 Cal.App.4th 1417 (2006).

Key cases

• Donkin v. Donkin (2013) 58 Cal.4th 412 (Supreme Court) – limits of no‑contest clauses.
• Donkin v. Donkin (2017) B266036 (Court of Appeal) – earlier appellate analysis of the same trust.
• Aguilar v. Aguilar (2008) 168 Cal.App.4th 35 – amendment of irrevocable trusts.
• Heaps v. Heaps (2004) 124 Cal.App.4th 286 – conversion of irrevocable trust assets.
• Burch v. George (1994) 7 Cal.4th 246 – definition of “contest.”
• Safai v. Safai (2008) 164 Cal.App.4th 233 – admissibility of extrinsic evidence in trust interpretation.