When you read cases from the nineteenth century, they're replete with legal formalism and focus on hypertechnical distinctions that are often found to be dispositive. I'm often left with a sense that the judges of that era were trying their best -- were doing the job that they believed they were required to do -- but that the result of those cases were often wildly inequitable as a result. Go ahead and pick up an opinion from the 1800s and you'll see what I mean. The kind of "justice" rendered in those types of cases is a far cry from what we see in the modern era. That's an area in which the justice system has undeniably improved over the last century or two. Modern cases follow rules and doctrine, of course (just like in the old days). But we typically follow and establish rules for a reason, and end up (more often than not) with a fair and equitable result.
Then there's this opinion from today. Which reads more like something from 1820 than 2020.
I'm not saying that Justice Stratton fails to follow the appropriate rules. By all accounts, she's a conscientious jurist, and there's no doubt that this opinion attempts to follow the legal principles as Justice Stratton sees them.
But the resulting unfairness that arises from this hypertechnical doctrinal focus is striking. Which is something you don't typically see -- or at least see so palpably -- in modern cases.
Here's the scoop:
In 1991, Norbert Eimers makes a common type of testamentary trust, which essentially says that when he and his wife both die, all their money goes to their surviving kids (in trust). Makes sense. What about when the kids who get the money then die? No problem. The trust says -- again, this is common -- that the kid can specify in his or her will where the money goes. (Which makes sense; it's basically their money.) So if they want to give it to a friend, or to charity, or whatever, go ahead. But if the kid doesn't specify where s/he wants the money to go, then it goes to the kid's children (if any), and if there aren't any such children, then it gets split up among Eimers' surviving kids and grandkids.
Totally common. Totally fair.
Mr. Eimers dies in 1992, and his wife dies in 2011, so their kids split the money. So far, so good. One of those kids is Tim Eimers. Tim doesn't seem to have a spouse or children, so in 2013, he writes out a holographic will that gives all his money -- expressly including the trust money from his parents -- to Charles & Caryn Saletta. His intent couldn't be clearer. His handwritten will says:
“I Timothy William Eimers am writing this document
as my Last Will and Testament. I am doing this of my
own free will and of sound mind and body.
“To Charles J. Saletta and Caryn Saletta I hereby leave
my shares of the Norbert Theodore Eimers Family
Trust. I also leave all my other property and any funds
I have.”
Okay, then. No problem. It's essentially his money, his parents said he could give it to anyone he wanted, and he crystal clearly gave it to Mr. and Mrs. Saletta.
But in the middle of the 30 page trust document that Mr. Eimer's prepared, there's a provision that says "Upon the death of a child, any share held in trust for
the child’s benefit . . . shall be distributed to or for the
benefit of such one or more persons or entities, and on
such terms and conditions, either outright or in trust,
as said child may provide and appoint by will
specifically referring to and exercising this power of
appointment." (Otherwise the money goes to the kids and grandkids.) Remember: There's zero doubt that Tim wanted to give the Salettas the trust money, and he even specifically gave them "my shares of the Norbert Theodore Eimers Family Trust" in his holographic will.
But the fine print of the trust document says you've got to specifically refer to the "power of appointment." Which -- not being a lawyer, and in the midst of writing a handwritten will -- Tim didn't clearly do. He just said he's giving them the money, not that he's "appointing them" to get the money.
Now, in the modern era, you'd expect that we'd have a doctrine that would deal with this problem. Because we want to do justice. We'd call it substantial compliance. We'd say that Tim "implicitly" exercised the power of appointment. We'd say that the greater (giving them the $) included the lesser (appointing them). There's a million different doctrinal ways that we could end up doing the right thing here. One of which -- the one at issue in this appeal -- is for the Saletta's to file a petition to amend the holographic will so that it adds twenty six characters and hence reads "To Charles J. Saletta and Caryn Saletta I hereby leave
my shares of the Norbert Theodore Eimers’ Family
Trust under the power of appointment. I also leave
all my other property and any funds I have.” (Words added.) That's clearly what Tim was trying to do, after all -- everyone admits that. So let's achieve justice and do what both Mr. Eimer as well as Tim wanted -- let him give the money to the Salettas.
Nope. The Court of Appeal doesn't let him. Those four words weren't used, so we can't do what we know the parties wanted. The Salettas get nothing and the money goes to people who already got their full share under the will (Tim's siblings and nieces and nephews).
One can direct the critique of this result in any one of a number of places. You can blame the Probate Code for being absurdly (and meaninglessly) strict. Maybe we should amend it. You can blame the authors of the first opinion from the Court of Appeal that held (in an unpublished disposition) that Tim's holographic will didn't satisfy the statute. Maybe that was wrong. And you can blame Justice Stratton and the panel in this opinion that held (in a published disposition) that a trial court hearing a petition to amend a holographic will can add a plethora of different words to such an instrument but not these particular twenty six characters.
Maybe only one of these is to blame, or two of them, or all of them.
But someone is indeed to blame. Because this isn't a just result. It's not justice. It's not what we expect from a modern, enlightened set of legal principles.
It's what you'd expect to see in 1820. Not today.
