California Legal Brief

The Rule of In re Tung Trust is that a trust provision stating that any person who fails to survive the settlor for thirty days "shall be considered to have predeceased the settlor" does not constitute a "contrary intention" under Probate Code section 21110(b) to override the antilapse statute, under circumstances where the provision merely establishes a definitional timeline for when someone is deemed to have predeceased the settlor rather than expressly conditioning gifts on survival.

Appeal from order granting summary adjudication in Superior Court, Los Angeles County.

Defendant Appellants were Nicholas Yeh et al. — the grandchildren of settlor Ya-Ching Tung who stood to inherit through the antilapse statute as issue of their predeceased father Lin-Chuan Yeh.

Plaintiff Respondent was Lillian Gaecke, as Temporary Successor Trustee — the surviving daughter of the settlor who sought to exclude her nephews and niece as trust beneficiaries.

The suit sounded in trust administration. The case involved a petition to determine trust beneficiaries and distribution of the trust estate.

The key substantive facts leading to the suit were that Ya-Ching Tung established a revocable trust in 2011 naming her three children as beneficiaries, with son Lin-Chuan to receive all real property and portions of cash accounts. Lin-Chuan died in July 2016, and Tung died in May 2019. The trust contained a provision that if any person failed to survive the settlor for thirty days, "the person shall be considered to have predeceased the settlor." Lin-Chuan was survived by three children (the Yeh children).

The procedural result leading to the Appeal: The trial court granted Gaecke's motion for summary adjudication, ruling that the trust's survivor provision constituted a "contrary intention" under Probate Code section 21110(b) that prevented application of the antilapse statute, thereby excluding the Yeh children as beneficiaries.

The key question(s) on Appeal: Whether the trust's provision that a person who fails to survive the settlor for thirty days "shall be considered to have predeceased the settlor" expresses a contrary intention under Probate Code section 21110(b) to override the antilapse statute.

The Appellate Court held that the trust provision did not express a contrary intention to override the antilapse statute because it merely established circumstances under which a beneficiary would be deemed to have predeceased the settlor, rather than creating a requirement that the transferee survive in order to receive the gift, and other trust provisions indicated the settlor intended her grandchildren to benefit under certain circumstances.

The case is inapplicable when the trust contains explicit survival requirements conditioning gifts on the beneficiary surviving the settlor (such as "the beneficiary must survive for [X] days before entitlement to such gifts"), or when the trust contains clear language expressing an intention to disinherit the transferee's issue, or when other trust provisions do not support an inference that the settlor intended issue to benefit.

The case leaves open questions regarding what other types of trust language might constitute a "contrary intention" under section 21110(b), and how courts should analyze extrinsic evidence of settlor intent when trust language is ambiguous regarding application of the antilapse statute.