TRUST LITIGATION

THE NO CONTEST PROVISION OF THE TRUST

DOES NOT APPLY TO THIS DIRECT CONTEST

                          Probate Code §21311 provides in pertinent part that:

             “(a) A no contest clause shall only be enforced against the

             following types of contests:

(1)  A direct contest that is brought without probable cause.”

                          And Probate Code 21310 provides in pertinent part that:

             “As used in this part:

             (a) "Contest" means a pleading filed with the court by a

             beneficiary that would result in a penalty under a no contest clause,

             if the no contest clause is enforced.

             (b) "Direct contest" means a contest that alleges the invalidity

             of a protected instrument or one or more of its terms, based on one

             or more of the following grounds:

             (1) Forgery.

             (2) Lack of due execution.

             (3) Lack of capacity.

        (4) Menace, duress, fraud, or undue influence. (emphasis added)

1. This action is a direct contest because Petitioner is alleging the invalidity of the CLEO JONES Living Trust on the aforementioned grounds of forgery, lack of due execution, lack of capacity and menace, duress, fraud and undue influence.  Therefore the no contest clause shall not be enforced pursuant to the above changes to the Probate Code which took effect on January 1, 2010.  (See Dec. of JANE DOE ¶

IV.

DECEDENT’S PRESCRIBED MEDICATION IS

PRIMA FACIE EVIDENCE OF LACK OF CAPACITY

1. At the time of the alleged execution of the amendment, decedent was under the influence of strong painkillers and medications which rendered here legally incapable executing an agreement.  See Declaration of JANE DOE ¶ 5 and EXHIBIT “C”, Excellerex Pharmacy print out of CLEO JONES’s Pain and Psychotropic Medications.

V.

THE TRUSTEES HAVE FORGED DECEDENT’S NAME

ON HER CHECKING ACCOUNT AND DEPLETED THE TRUST

1. Petitioner has only recently discovered that the co-trustees have forged decedents name on decedent’s checking account and depleted the trust of funds.  See Declaration of Petitioner JANE DOE.  (See Declaration of JANE DOE ¶ 6, 7)

VI.

SUSPEND AND REMOVE CO-TRUSTEES

1. The trust instrument does not appoint a successor trustee. Petitioner requests that the court appoint Petitioner JANE DOE as successor trustee.  Petitioner JANE DOE consents to serve as successor trustee and further requests that the court appoint her as the successor trustee without bond.  (See Declaration of JANE DOE ¶ 9)
2. Petitioner believes her appointment as successor trustee is in the best interests of the trust and of those persons interested in the trust estate for the following reasons:
   a.  Petitioner as proposed successor trustee has maintained the best contact with the other beneficiaries.
   b.  Petitioner as successor trustee will act in the best interests of all beneficiaries.
   1. Petitioner as successor trustee understands the fiduciary responsibility of maintaining the trust by giving regular accountings to all beneficiaries for all assets related to the trust.
   2. Petitioner will attempt to restore family unity.
      (See Dec. of JONES ¶¶ 10 through 12)

VII.

PROVIDE ACCOUNTING

1. To date, Respondent Co-Trustees have never provided petitioner with an account of the Trust.  Petitioner requests that the court order MARY BARKER and SUSAN JONES to file an accounting with the court detailing their acts as co-trustees.  (See Declaration of JANE DOE ¶ 8).

VIII.

PROVIDE COMPLETE COPY OF THE TRUST DOCUMENT

1. 7. To date, Respondent Co-Trustees have never provided petitioner with a complete copy of the Trust.  Petitioner requests that the court order MARY BARKER and SUSAN JONES to provide Petitioner with a complete copy of the CLEO JONES Living Trust Document.  (See Declaration of JANE DOE ¶ 3).

IX.

BREACH OF TRUST

1. Respondent Co-Trustees are in breach of their trust in that co-trustees violated their duties to administer the trust in accordance with its terms and to exercise reasonable skill, care, and diligence in the administration of the trust by reason of their conduct alleged herein, including but not limited to, conspiring to create the alleged Purported Amendment, failing to make distributions required under the trust instrument in a timely manner and failing to provide an accounting.  (See Declaration of JANE DOE)
2. The reasonably ascertainable names and addresses of the persons entitled to notice of this petition are as follows:

Violet Becker Daughter,
32600 Miller Road                                                Beneficiary
Pasadena, CA 93553
David JONES                                                       Son

11156 Pacific Coast Highway Avenue                    Beneficiary

Pacific Palisades, CA 91331

MARY BARKER                                                   Respondent, Co-Trustee

12727 Heathercliff                                                Daughter, Beneficiary

Malibu, CA 91342

SUSAN JONES                                                    Respondent, Co-Trustee

13568 Westward Beach  Street                             Daughter, Beneficiary

Malibu, CA 91342

Margo Riley  Daughter

41914 60^th Street West                                         Beneficiary

Oxnard, CA 93536

Elizabeth JONES Serrano                                     Granddaughter

3123 East Avenue R-4                                          [Alleged] Beneficiary

Woodland Hills, CA 93550

1. No request for special notice has been filed in this proceeding.

X.

PRAYER

WHEREFORE, Petitioner prays for an order of the Court:

1. Finding the Purported Trust Amendment invalid due to the mental incapacity of Petitioner’s Mother;
2. Finding the Purported Trust Amendment invalid due to the undue influence of Respondents and others;
3. Purported Trust Amendment invalid due to mistake;
4. Purported Trust Amendment invalid because it was not duly executed as required under the terms of the trust;
5. The court remove MARY BARKER and SUSAN JONES as co-trustees of the CLEO JONES Living Trust and appoint petitioner JANE DOE as successor trustee to serve without bond.
6. The court order MARY BARKER and SUSAN JONES to file an accounting with the court detailing their acts as trustee.
7. The court order MARY BARKER and SUSAN JONES to serve a complete copy of the CLEO JONES LIVING TRUST upon Petitioner JANE DOE.
8. For $355.00 in court filing costs for filing this petition.
9. For $1000 in legal document assistant fees incurred to help prepare this motion.

10. For attorneys fees and costs herein incurred by Petitioner in 2009 in researching, preparing and drafting this petition; and

11.  For Instructions on how to proceed in this matter.

For such other orders as the Court may deem proper.