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Estate of James Cleveland v. Thomas8/23/1993
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION FIVE
No. B072638.
1993.CA.42844 ; 22 Cal. Rptr. 2d 590; 17 Cal. App. 4th 1700
Decided: August 23, 1993.
ESTATE OF JAMES CLEVELAND, DECEASED. ANDRE CLEVELAND, PETITIONER AND APPELLANT,
v.
ANNETTE MAY THOMAS, AS TRUSTEE, ETC., OBJECTOR AND RESPONDENT.
Superior Court of Los Angeles County, No. BP011054, Arnold H. Gold, Judge.
Howard S. Klein, Moffitt, Weagant & Loo, Lance M. Weagant, Fowler & Lasman and Randall D. Fowler for Petitioner and Appellant.
Ross & Sacks, Bruce S. Ross, Robert N. Sacks and Terrence M. Franklin for Objector and Respondent.
Opinion by Grignon, J., with Turner, P. J., and Armstrong, J., Concurring.
Grignon
On February 9, 1991, James Cleveland (decedent) died intestate. This appeal concerns whether appellant Andre Cleveland is entitled to a share of decedent's estate. Appellant filed two petitions in probate court which sought to order respondent Annette May Thomas, trustee of the James Cleveland Trust, to convey certain real and personal property to the personal representative of decedent's estate. Respondent brought a successful motion for summary judgment on the ground that appellant was not an "interested person" and therefore lacked standing to file the petitions. Appellant contends that he is an interested person pursuant to Probate Code section 6408, subdivision (e). Section 6408, subdivision (e) provides that a foster child or stepchild in a continuous parent-child relationship with a decedent may share in the decedent's estate where clear and convincing evidence establishes that the decedent would have adopted the foster child or stepchild but for a legal impediment to the adoption. We conclude that no legal impediment to
appellant's adoption by decedent existed as a matter of law and affirm the judgment of the probate court.
FACTS AND PROCEDURAL BACKGROUND
On November 6, 1991, appellant filed an amended petition for an order authorizing and directing the conveyance and transfer of trust real property to decedent's estate. On that same day, appellant filed an identical petition for an order authorizing and directing the conveyance and transfer of trust personal property to decedent's estate. Appellant alleged in both petitions that he was entitled to share in decedent's estate pursuant to the authority of section 6408, subdivision (e).
The petitions alleged that decedent had been in a coma for 24 hours prior to his death. During the period in which decedent had been in a coma, respondent had signed two documents pursuant to a 1986 durable power of attorney: "The James Cleveland Trust," and the "Declaration of Trust and Agreement for the Reverend James Cleveland Charitable Foundation" (collectively, the Trust). At the time of the petitions, respondent, as trustee of the Trust, claimed title and possession to the property described in the Trust. The Trust provides for the creation of a charitable foundation, and also instructs the trustee to make specific testamentary bequests to a variety of individuals, including decedent's daughter, sisters and their children, godson, various friends, and respondent. The Trust documents also make a specific gift of $10,000 to appellant who is described as decedent's "friend and godson."
Respondent answered the petitions on February
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