Aviles v. Swearingen

Tracy J. Swearingen appealed from an order denying her petition to enforce a no contest clause and disinherit Jose Francisco Aviles as a trust beneficiary of the Margaret B. Chappell (Peggy) Living Trust. The Court of Appeal affirmed the order denying the petition to disinherit Aviles, and dismissed the purported appeal from the order removing Swearingen as trustee pending trial because it was not a final appealable order. The court held that the no contest clause in the Second Amendment to the will, which was to be strictly construed, did not trump Probate Code section 21310, subdivision (e)(2). Therefore, the Third Amendment to the will did not incorporate by reference the no contest clause in the Second Amendment. In this case, the court could not say that Peggy unequivocally expressed her intent to apply the no contest clause to petitions contesting trust amendments that were the product of fraud or undue influence. View "Aviles v. Swearingen" on Justia Law