FILED SEP 3 2021 SUSAN M. SPRAUL, CLERK ORDERED PUBLISHED U.S. BKCY. APP. PANEL OF THE NINTH CIRCUIT

UNITED STATES BANKRUPTCY APPELLATE PANEL OF THE NINTH CIRCUIT

In re: BAP No. CC-20-1285-GTL JAMES CHRISTOPHER PATOW, Debtor. Bk. No. 8:18-bk-10971-ES

LINDA PATOW; LINDA PATOW, as Adv. No. 8:19-ap-01061-ES Trustee of the Alvin and Linda Patow 2006 Trust, Appellant, v. OPINION RICHARD A. MARSHACK, Trustee; JAMES CHRISTOPHER PATOW, Appellees.

Appeal from the United States Bankruptcy Court for the Central District of California Erithe A. Smith, Bankruptcy Judge, Presiding

J. Edward Switzer, Jr. argued for appellant; David Edward Hays of Marshack Hays LLP argued for appellee Richard A. Marshack, Trustee.

Before: GAN, TAYLOR, and LAFFERTY, Bankruptcy Judges.

Opinion by Judge Gan Concurrence by Judge Lafferty GAN, Bankruptcy Judge:

INTRODUCTION

This appeal requires us to determine whether documents executed by

a trust beneficiary, which purport to waive his interest under the trust,

constitute a voidable transfer under state law or a valid disclaimer.

Chapter 7 1 debtor James Patow (“James”)2 was a beneficiary of a trust

created by his parents Alvin and Linda Patow. Nearly four years prior to

filing his bankruptcy petition, James executed two documents stating that

he waived his interest under the trust and that he gave consent for Linda,

the sole trustee, to disburse the trust assets to herself.

Chapter 7 trustee Richard Marshack (“Trustee”) filed an adversary

complaint alleging that the documents constituted a voidable fraudulent

transfer. The bankruptcy court agreed and granted Trustee’s motion for

summary judgment after determining that James accepted his interest and

therefore could not validly disclaim it under state law.

The material facts are not in dispute, and resolution of this appeal

turns on the purely legal question of whether the documents constitute a

1 Unless specified otherwise, all chapter and section references are to the Bankruptcy Code, 11 U.S.C. §§ 101–1532, all “Rule” references are to the Federal Rules of Bankruptcy Procedure, and all “Civil Rule” references are to the Federal Rules of Civil Procedure. 2 Because this appeal involves other family members named Patow, we refer to

them by their first names. No disrespect is intended. 2 voidable transfer under the California Uniform Fraudulent Transfers Act

(“UFTA”),

. 3

We hold that the documents do not evidence an acceptance. They

constitute a valid disclaimer which is not a voidable transfer under the

UFTA as a matter of law. We REVERSE and REMAND with instruction to

enter judgment in favor of Linda, and we publish to emphasize the type of

conduct required to constitute an implied acceptance of a beneficial

interest.

FACTS

A. The Patow Trust

In 2006, James’s parents established the Alvin Patow and Linda

Patow 2006 Trust (the “Patow Trust”), for the purpose of leaving their

property to their children, James and Jennifer, while minimizing probate

and estate tax costs. Later, Alvin and Linda amended the Patow Trust to

provide for 100% of the trust estate to pass to Linda’s sister Patricia

Meredith if neither James nor Jennifer survived them.

The Patow Trust was revocable during the lives of the settlors and

provided that upon the death of either spouse the trust estate would be

split between two trusts designated as the Survivor’s Trust and the Bypass

3California amended the UFTA and retitled it as the Uniform Voidable Transactions Act, effective January 1, 2016. Because the alleged transfer took place before the effective date, we apply the provisions of the UFTA in effect at the time. See

. 3 Trust. The Survivor’s Trust would remain revocable during the lifetime of

the surviving spouse, while the Bypass Trust would become irrevocable.

Alvin died in 2007 and Linda became the sole trustee of the Patow

Trust. In accordance with its terms, she transferred Alvin’s share of the

marital estate, up to the maximum estate tax exemption amount, into the

Bypass Trust. The transfer consisted of a 5-unit apartment building and a

51% interest in a 4-unit apartment building located in Los Alamitos,

California.

Article 7 of the Patow Trust requires the trustee to distribute all

income of the Bypass Trust to the surviving spouse at least annually, and

states that the “[t]rustees may distribute to the Surviving Spouse all or any

portion of the principal of the Bypass Trust for the Surviving Spouse’s

reasonable health, education, maintenance, and support in his or her

accustomed manner of living.” The Patow Trust provides that upon the

death of the surviving spouse, the remaining assets of the Bypass Trust are

to be distributed to the beneficiaries, James and Jennifer.

The Patow Trust also contains spendthrift provisions applicable to

the Bypass Trust. Section 20.1 provides, “[a] beneficiary’s interest in the

trust income or principal shall not be subject to his or her voluntary

transfer. Specifically, a beneficiary . . . may not sell, transfer, assign,

alienate, encumber, hypothecate, or otherwise dispose of his or her interest

in trust income or principal.” Section 20.2 includes a spendthrift provision

prohibiting involuntary transfers:

4 [A] beneficiary’s interest shall not be subject to the beneficiary’s liabilities, contracts, debts, or other obligations; to the claims of the beneficiary’s creditors or assignees or others; to the enforcement of a money judgment against the beneficiary; or to assignment, attachment, anticipation, levy, execution, garnishment, pledge, claims arising from bankruptcy proceedings, or any other form of legal or equitable levy or lien or legal process or proceedings.

The spendthrift provisions do not prohibit a beneficiary from

disclaiming or renouncing any interest in the Bypass Trust. Section 8.1

authorizes disclaimers and states that “any person granted any right, title,

interest, benefit, privilege, or power” under the Patow Trust “may at any

time renounce, release, or disclaim all or any part of that right, title,

interest, benefit, privilege, or power, including his or her right, title, and

interest in and to trust income or principal.”

B. The Agreement And Consent To Exercise Discretion

In 2014, Linda’s tax advisor and estate attorney advised her that the

Bypass Trust was no longer necessary to reduce taxes on her estate. Linda’s

attorney advised her to use her discretion under the Patow Trust to transfer

the Bypass Trust property to herself, then to the Survivor’s Trust. Although

he believed that consent was not required, Linda’s attorney recommended

that she inform the beneficiaries of her decision to prevent confusion,

disagreements, or litigation.

The attorney prepared a document titled “Agreement” which

included as exhibits an “Exercise of Discretion” and a “Consent to Exercise

5 of Discretion” (“Consent EOD”). The Agreement provides that Linda

would execute the Exercise of Discretion, which states that she would

transfer the principal of the Bypass Trust to herself pursuant to her

discretion under the Patow Trust. The Agreement also provides that James

and Jennifer would execute the Consent EOD, and that by doing so, they

would waive any and all rights they may have under the terms of the

Patow Trust. The Consent EOD signed by James states:

I, James Christopher Patow, as a beneficiary of the Alvin and Linda Patow 2006 Trust – Bypass Trust, established June 23, 2006, do hereby consent to the Exercise of Discretion by the Trustee of said Trust, to invade the principal of said Trust and return it all to Linda E. Patow.

James and Jennifer acknowledged that they did not receive any

consideration for signing the Agreement or Consent EOD and that they

were not promised anything from Linda’s trusts in the future. James and

Linda each signed the Agreement—and James signed the Consent EOD—

on May 22, 2014.4 Pursuant to the Exercise of Discretion, Linda transferred

the assets from the Bypass Trust to herself in June 2014.

At the time James executed the documents, default judgment had

been entered against him and in favor of Asset Acceptance, LLC in the

amount of $16,583.68. In September 2015, Interinsurance Exchange of

Automobile Club (“Auto Club”) filed suit against James based on an

automobile accident which occurred in 2012. Auto Club obtained default

4 Jennifer executed the documents on May 13, 2014. 6 judgment against James in May 2017. Both judgments remained unsatisfied

at the time of James’s bankruptcy petition.

C. The Adversary Complaint And Motion For Summary Judgment

James filed a chapter 7 petition on March 21, 2018. In May 2019,

Trustee filed his first amended complaint against James and Linda. He

alleged that James transferred his interests in the Bypass Trust to Linda,

which constituted a fraudulent transfer made with actual intent under

§ 548(a)(1)(A) and a constructive fraudulent transfer under § 548(a)(1)(B).

He also alleged that James transferred his interests in violation of the

UFTA, California Civil Code §§ 3439.04(a)(1)-(2) and 3439.05. James and

Linda denied that the Agreement and Consent EOD constituted a transfer,

and Linda asserted an affirmative defense that the documents were a

disclaimer which cannot be a voidable transfer under state law.

In August 2020, Trustee filed a motion for summary judgment, or

alternatively for summary adjudication, on his fraudulent transfer claims

and on Linda’s affirmative defenses. Trustee argued that James had a

vested interest in the Bypass Trust which he transferred to Linda for no

consideration. Trustee asserted that Linda admitted that she did not use the

Bypass Trust principal to pay expenses related to her health, education,

maintenance, or support, and therefore she lacked authority to invade the

principal without James’s consent. Regarding Linda’s affirmative defense,

Trustee argued that James did not validly disclaim because he exercised

control over his interest by directing that it would go to Linda instead of

7 other beneficiaries. Trustee argued that entering into the Agreement

qualified as an acceptance and prevented James from disclaiming his

interest under California Probate Code § 285.

Linda opposed the motion and argued that the Agreement did not

constitute a transfer of an interest in property. She maintained that James’s

consent was unnecessary for her to use her discretion as trustee to invade

the principal of the Bypass Trust, and the Agreement merely operated as a

disclaimer of his interest. Linda argued that Trustee’s claims under § 548

were barred by the statute of limitations, and under state law a disclaimer

does not constitute a voidable transfer. James did not file an opposition.

After a hearing, the bankruptcy court granted Trustee’s motion in

part and denied it in part. The court granted summary adjudication in

favor of the defendants on Trustee’s § 548 claims because the alleged

transfer did not occur within two years of the petition date. The court

granted summary judgment in favor of Trustee on all elements, except

intent, of the actual fraudulent transfer claim under California Civil Code

§ 3439.04(a)(1). Finally, the court granted summary judgment on Trustee’s

claim for constructive fraudulent transfer under California Civil Code

§§ 3439.04(a)(2) and 3439.05.

The bankruptcy court determined that the Agreement did not direct

that James’s interest go to Linda. However, the court held that by executing

the Consent EOD, James accepted his interest in the Bypass Trust before

the alleged disclaimer in the main body of the Agreement.

8 The court reasoned that by using his status as a beneficiary to

consent, James provided Linda with more than a de minimis benefit

because she would not otherwise have been able to invade the principal of

the Bypass Trust for reasons other than her health, education, maintenance,

or support. And, if the alleged disclaimer had been immediately effective,

James could not have executed the Consent EOD “as a beneficiary.”

The bankruptcy court held that the Agreement constituted a transfer

of James’s interest because he “waived” his beneficial interest, which

satisfied the broad definition of “transfer” in § 101(54)(D).

D. The Motion For Reconsideration

After the bankruptcy court entered its order partially granting

Trustee’s motion for summary judgment, Linda filed a motion for

reconsideration pursuant to Civil Rule 59(e), made applicable by Rule 9023.

She argued that the Consent EOD could not be a prior acceptance because

it was executed simultaneously with the Agreement and it was intended to

be a unified transaction. Linda again argued that James’s consent did not

give her any authority that she did not already have under the terms of the

Patow Trust. She requested certification of the order granting partial

summary judgment as a final order under Civil Rule 54(b), made

applicable by Rule 7054, should the court deny her motion for

reconsideration.

In opposition, Trustee argued that Linda did not have power to

invade the principal of the Bypass Trust, and contrary to the terms of the

9 Patow Trust, the Agreement and Consent EOD signed by James and

Jennifer purported to confer on Linda such authority. Trustee maintained

that James had a vested interest in property of the Bypass Trust, which

Linda acquired pursuant to the Agreement and Consent EOD, and

therefore it constituted a transfer.

In her reply, Linda reiterated that the Agreement and Consent EOD

should be construed as a single transaction and that they evidenced a

disclaimer. She argued that, contrary to Trustee’s argument and the court’s

ruling, James had no power to unilaterally increase Linda’s powers as

trustee. Finally, she argued that pursuant to the spendthrift provisions

applicable to the Bypass Trust, James had no ability to transfer his interest

except by disclaimer.

The bankruptcy court denied Linda’s motion for reconsideration but

certified the order granting partial summary judgment as a final order

under Civil Rule 54(b). Linda timely appealed.

JURISDICTION

The bankruptcy court had jurisdiction under

and

157(b)(2)(H). The bankruptcy court certified the partial summary judgment

as a final order under Civil Rule 54(b). Thus, we have jurisdiction under

. Belli v. Temkin (In re Belli),

(9th Cir. BAP

2001).

10 ISSUES

Whether the bankruptcy court erred by determining that the

documents evidenced an acceptance by James of his beneficial interest and

not a disclaimer.

Whether the bankruptcy court erred by granting partial summary

judgment in favor of Trustee.

STANDARDS OF REVIEW

We review the bankruptcy court’s grant of summary judgment de

novo. Medina v. Stadtmueller (In re Medina),

, 240 (9th Cir. BAP

2020). We also review de novo whether a document is a valid disclaimer.

See Est. of Goshen,

, 100 (1985).

Whether a beneficiary has accepted his beneficial interest through

conduct is “a fact-sensitive inquiry that centers on the conduct of the

beneficiary, and the result of such conduct.” Cassel v. Kolb (In re Kolb),

(9th Cir. 2003). But where the only conduct alleged to

support acceptance is a written document, we review the question de novo.

See Mitri v. Arnel Mgmt. Co.,

(2007) (“The

interpretation of a written document where extrinsic evidence is

unnecessary is a question of law . . .” (cleaned up)).

Under de novo review, we look at the matter anew, giving no

deference to the bankruptcy court’s determinations. In re Medina, 619 B.R.

at 240.

11 DISCUSSION

A. Summary Judgment Standard

Civil Rule 56(a), made applicable by Rule 7056, provides that

summary judgment is appropriate when “there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of

law.” In reviewing summary judgment, we must view the evidence in the

light most favorable to the nonmoving party and draw all justifiable

inferences in its favor. Fresno Motors, LLC v. Mercedes Benz USA, LLC,

(9th Cir. 2014) (citing Cnty. of Tuolumne v. Sonora Cmty.

Hosp.,

, 1154 (9th Cir. 2001) and Anderson v. Liberty Lobby, Inc.,

(1986)). When the material facts are not in dispute, our

only function is to determine whether the bankruptcy court correctly

applied the law. Universal Health Servs., Inc. v. Thompson,

,

1019 (9th Cir. 2004).

The material facts are not in dispute and resolution of this appeal

turns on our interpretation of the Agreement and the Consent EOD. Linda

argues that the Agreement was a disclaimer under state law and the

Consent EOD was not a prior acceptance of James’s interest in the Bypass

Trust. We agree.

B. Voidable Transfers Under State Law

Section 544(b) permits a bankruptcy trustee to avoid any transfer of a

debtor’s interest in property that would be voidable under state law. Kupetz

v. Wolf,

(9th Cir. 1988). To determine whether Trustee was 12 entitled to avoidance as a matter of law under the UFTA, we must look to

state law. Krommenhoek v. A-Mark Precious Metals, Inc. (In re Bybee),

(9th Cir. 1991).

Under the UFTA, a “transfer” is defined as “every mode, direct or

indirect, absolute or conditional, voluntary or involuntary, of disposing of

or parting with an asset or an interest in an asset, and includes payment of

money, release, lease, license, and creation of a lien or other encumbrance.”

(m). 5 But California law specifically provides that a

disclaimer of a beneficial interest is not a fraudulent transfer under the

UFTA.

.

California law defines “disclaimer” as “any writing which declines,

refuses, renounces, or disclaims any interest that would otherwise be taken

by a beneficiary.”

. A disclaimer must: (1) be in

writing; (2) be signed by the disclaimant; (3) identify the creator of the

interest; (4) describe the interest disclaimed; and (5) state the disclaimer

and its extent.

. However, a beneficiary cannot

5 We acknowledge that one might question whether James’s beneficial interest in the Bypass Trust could constitute an “asset” for purposes of the UFTA, given that the parties agree it was subject to the Bypass Trust’s spendthrift provisions, and the definition of “asset” excludes property “to the extent it is generally exempt under nonbankruptcy law.”

(a)(2). The Bypass Trust does not clearly provide for any expected payments of income or principal to James which could be subject to claims of a general creditor under California Probate Code §§ 15301(b), 15306.5, or 15307, but this issue may be complicated by Carmack v. Reynolds,

(2017). However, because we agree that the documents evidence a disclaimer, which is not a voidable transfer, we do not reach the question of whether James’s beneficial interest is an “asset” subject to the UFTA. 13 disclaim an interest after he has accepted it.

; In re

Kolb,

.

C. The Documents Do Not Evidence Acceptance Of The Beneficial Interest.

“Acceptance” is the “act of a person to whom a thing is offered or

tendered by another, whereby he receives the thing with the intention of

retaining it.” Black’s Law Dictionary (6th ed. 1990). “In other words,

acceptance denotes both receipt, and the intent to retain.” In re Kolb,

. Acceptance can be shown by express or implicit actions.

The California Probate Code specifies several actions which are

sufficient to show express acceptance of a beneficial interest, including

“voluntary assignment, conveyance, encumbrance, pledge, or transfer of

the interest . . . ”

(b). In addition to these examples,

acceptance can arise from any action that “would portend immediately

tangible results which would serve the interests of” the beneficiary. Est. of

Sagal,

(1979).

Section 285(b)(3) also includes a “catch-all” provision which prohibits

a disclaimer where “[t]he beneficiary, or someone acting on behalf of the

beneficiary, accepts the interest or part thereof or benefit thereunder.” The

Ninth Circuit has interpreted this provision as prohibiting disclaimer

where acceptance is through “conduct by a beneficiary implying an intent

to direct or control the property in a manner that conveys more than a de

14 minimis benefit to the beneficiary or a third party.” In re Kolb,

.

Whether the acceptance is shown by express or implicit actions, the

analysis must focus on the conduct of the beneficiary and the result of that

conduct.

It is a functional inquiry, and not every action by a beneficiary

that results in a benefit to a third party will suffice. The beneficiary must

exercise dominion or control over the interest in a manner that is

inconsistent with a later renunciation. See

(citing Mapes v. United States,

(9th Cir. 1994), abrogated on other grounds by Drye v. United

States,

(1999)).

Here, the bankruptcy court held, and we agree, that the documents

do not constitute an express acceptance because they do not provide for an

assignment or transfer of James’s interest to Linda. See Heritage Pac. Fin.,

LLC v. Monroy,

(2013) (“An assignment is a

manifestation to another person by the owner . . . indicating his intention to

transfer, without further action or manifestation of intention . . . to such

other person, or to a third person.” (cleaned up)).

The court, however, further held that the Consent EOD demonstrated

James’s implicit acceptance because it provided Linda with the ability to

invade the principal of the Bypass Trust. But whatever authority Linda had

was defined and fixed by the trust instrument and by state law.

. As a beneficiary, James had no authority to grant Linda

15 additional powers over the principal of the Bypass Trust. It other words,

the Consent EOD did not confer any trust power or benefit on Linda.

More importantly, acceptance requires that the beneficiary engage in

conduct which, expressly or implicitly, demonstrates an intent to receive

and retain the beneficial interest. In re Kolb,

. Trustee does

not identify any benefit that James received by waiving his interests or

consenting to Linda’s exercise of discretion, and he completely fails to

provide evidence of an intent to retain the beneficial interest.

Instead, the Consent EOD is entirely consistent with James’s

renunciation of his beneficial interest. The document merely states that

James consents to Linda’s invasion of trust principal by the authority she

claimed under the Patow Trust. It operates as a waiver of James’s right to

sue Linda for breach of trust if invading the principal of the Bypass Trust

was beyond her powers as trustee. But, because James’s right to sue for

breach of trust is based solely on his status as beneficiary, such right is

necessarily waived when he disclaims his beneficial interest. See

.

Nothing in the Agreement or Consent EOD demonstrates James’s

control over his beneficial interest, and executing the documents was not

conduct which produced a tangible benefit to James or a third party. The

documents are consistent with James’s renunciation of his interest and do

not constitute an acceptance of that interest.

16 D. James Validly Disclaimed His Interests Under the Bypass Trust.

After determining that James accepted his interest, the bankruptcy

court concluded that the Agreement demonstrated a voidable transfer

because by “waiving” his interest, James transferred it to Linda.6 We

disagree.

The Agreement is in writing, was signed by James, and was provided

to Linda, the trustee of the Patow Trust. It states that by agreeing to the

Exercise of Discretion, James and Jennifer “hereby waive any and all rights

that they may have under the terms of the trust, including . . . The right to

receive the assets of the Bypass Trust upon the death of Linda E. Patow.”

Although the Agreement is drafted as a contract between the parties,

Trustee admits that James and Jennifer did not receive anything in

exchange for waiving their interests under the Bypass Trust. The

Agreement is essentially a unilateral action by James and Jennifer to refuse

6 The effect of California Probate Code § 285 is that a purported disclaimer made after an acceptance has no effect. See In re Kolb,

n.3 (holding that a disclaimer was “ineffective” and stating, “[b]ecause we conclude that [the beneficiary] accepted the benefits of his contingent interest and thus could not disclaim it, we need not reach [plaintiff’s] alternative argument that the disclaimer constituted a fraudulent transfer”); Sagal,

(holding that a renunciation after acceptance was “invalid”). Thus, if the Consent EOD was a prior acceptance of James’s interest in the Bypass Trust as the court held, it would have rendered the disclaimer ineffective. James would have retained his beneficial interest, and there would be no transfer to avoid. Additionally, we doubt whether a document attached as an exhibit and executed contemporaneously with a purported disclaimer could constitute a “prior” acceptance. However, we need not reach these issues because we conclude that the Consent EOD was not an acceptance of James’s beneficial interest in the Bypass Trust. 17 their interests. This is sufficient to constitute a disclaimer under California

law. See

; Goshen, 167 Cal. App. 3d at 102

(distinguishing disclaimers from assignments and explaining that a

disclaimer consists of a unilateral action by the beneficiary); Est. of Murphy,

(1979) (same).

Trustee argues that the Agreement was not a disclaimer under state

law because it provided for James to “waive” his interest rather than

“release,” “renounce,” or “disclaim” it. Trustee also suggests that James

assigned his interest to Linda because a disclaimer would cause the

interests to go to the alternate beneficiary, Patricia Meredith, instead of to

Linda.

Under California law, a disclaimer is “any writing” that declines,

refuses, renounces, or disclaims any interest that the beneficiary would

otherwise take. To “waive” an interest is to “abandon, throw away,

renounce, repudiate, or surrender [it] . . . . A person is said to waive a

benefit when he renounces or disclaims it . . . .” Black’s Law Dictionary (5th

ed. 1979). The disclaimer statute does not require a disclaimant to use

magic words. James manifested his intent to disclaim by “waiving” his

interests under the Bypass Trust.

Finally, we agree that the disclaimer caused the beneficial interests to

pass to the contingent beneficiary, Patricia Meredith, but Ms. Meredith is

not a party to this case, and Trustee cannot assert her rights.

18 Because we hold that the Agreement is a valid disclaimer of James’s

interest, it is not a voidable transfer as a matter of law. Trustee cannot

prevail on his complaint and Linda is entitled to judgment in her favor on

her affirmative defense.

CONCLUSION

Based on the foregoing, we REVERSE the bankruptcy court’s grant of

partial summary judgment and REMAND with instructions to enter

judgment in favor of Linda.

Concurrence begins on next page.

19 LAFFERTY, Bankruptcy Judge, concurring:

I am delighted to join in my colleagues’ disposition of this matter,

and to endorse their careful and meticulous reasoning on a question

involving the application of sections of the California Probate Code dealing

with interests in a testamentary trust, an area of non-bankruptcy law that

can be a bit arcane, to a bankruptcy trustee’s avoiding powers. I write

separately to emphasize two points: (1) the analysis whether a beneficiary

has disclaimed an interest in a trust under California law should ordinarily

be straightforward, and should begin (and frequently end) with the

disclaimer itself; and (2) the test whether a beneficiary has “accepted” an

interest in a trust such that a disclaimer would be ineffective is functional—

did the beneficiary voluntarily accept and retain a benefit under the

trust?—and should not turn, as this matter turned in the bankruptcy court,

and as the bankruptcy trustee urges it should turn on appeal, on an a priori

logic test that conflates acceptance with acknowledgment of a potential

interest.

As my colleagues correctly state, the only real question posed by this

appeal is whether the Agreement and the Consent EOD together constitute

a prior implied or deemed acceptance of the benefits of a trust that would

invalidate an otherwise effective disclaimer.

1 This focus is important, and not at all controversial analytically,

because the law in California concerning what constitutes an effective

disclaimer and the consequence of a disclaimer is straightforward.

It is absolutely clear under California law that a beneficiary may

disclaim an interest in a trust.

. It is also clear that the

requirements for a disclaimer are straightforward and relatively simple:

“The disclaimer shall be in writing, shall be signed by the disclaimant, and

shall: (a) Identify the creator of the interest. (b) Describe the interest to be

disclaimed. (c) State the disclaimer and the extent of the disclaimer.”

. And, as my colleagues correctly determine, all such

requirements were met here. Critically, it is equally clear that an effective

disclaimer cannot, by definition, constitute a fraudulent transfer.

.

The Trustee’s suggestion that the use of the word “waiver” in the

Agreement should automatically disqualify that document as a disclaimer

is unsupported under California law; the statute does not create, nor would

the case law support, such an arbitrary result completely contrary to the

intent of the parties, based solely on an otherwise innocuous word choice.

Moreover, such a result would also impose a level of nuance and

ambiguity into what is otherwise a simple and straightforward test without

any indication that the California legislature intended to so complicate this

question. This portion of the inquiry is simply not controversial, and the

Trustee’s attempts to complicate this question are meritless.

2 The question whether a beneficiary has implicitly or indirectly

accepted a benefit under a trust is admittedly one subject to greater nuance

and potential uncertainty—though not at all for the reasons that the

Trustee suggests.

California Probate Code § 285(a) states that a beneficiary may not

disclaim an interest after having accepted it; subsections (b)(1)-(3) define

what constitutes an acceptance. As my colleagues correctly point out, the

only basis for an argument that the beneficiary has accepted the interest in

the subject trust is the “catch all” provision of § 285(b)(3), the beneficiary

“accepts the interest or part thereof or benefit thereunder,” i.e., whether the

Agreement and the Consent EOD manifest an acceptance of the interest or

benefit under the Bypass Trust.

Review of the pertinent case law demonstrates that the test for

whether one has accepted an interest in a trust is necessarily flexible, but

consistently functional: did the beneficiary voluntarily obtain and retain

the interest so as to have received a benefit thereunder? See Cassel v. Kolb

(In re Kolb),

(9th Cir. 2003) (“[T]he California legislature

intended to prohibit the disclaimer of an interest accepted through conduct

by a beneficiary implying an intent to direct or control the property in a

manner that conveys more than a de minimis benefit to the beneficiary or a

third party. Application of this standard is a fact-sensitive inquiry that

centers on the conduct of the beneficiary, and the result of such conduct.”

(Citation omitted)).

3 The test is necessarily flexible because, as the cases make clear, one

may accept a benefit under an interest in a trust in ways far more subtle

than receipt of a payment on account of trust income or principal, or even

assigning or borrowing against the value of one’s interest.

In re Kolb is illustrative of this point. In Kolb, the Ninth Circuit

reversed the bankruptcy court’s determination that a beneficiary had not

accepted an interest under a trust when he listed that interest as an asset on

a successful loan application. In determining that the beneficiary had

accepted the interest through his conduct, the court noted both that

(a) there was no “obligation” to list the interest in the trust on the loan

application (i.e., the bankruptcy court had erred in determining that the

beneficiary was compelled to disclose the interest, such that the disclosure,

and the ensuing benefit, were not voluntary), and (b) the beneficiary had

inaccurately (but knowingly) listed the interest in the trust as a present,

fully-vested interest, as opposed to the less valuable contingent interest

that it was in fact. In re Kolb,

. But more fundamentally, the

court ruled that the beneficiary’s listing of the interest in the trust as an

asset constituted the beneficiary’s acceptance of the interest because the

beneficiary thereby used the interest to obtain a benefit, albeit a somewhat

indirect one, from his interest in the trust.

.

And though the court acknowledged that the determination whether

a beneficiary had accepted an interest via a “use” of the interest in the trust

depended on the facts and circumstances presented, and was thus a flexible

4 test, subject to a degree of parsing, it was also a test that was

fundamentally and necessarily functional: without the obtaining and

retention of an ascertainable benefit, there could be no acceptance.

The Trustee argues that the Consent EOD comprises an acceptance of

the beneficiary’s interest under the subject trust because that document

constitutes an acknowledgment of the beneficiary’s power to withhold

consent to the transaction set forth in the Agreement, i.e., permitting the

trustee to transfer to herself the ability to terminate the trust. This

argument is based on the premise that such acknowledgment was both

necessary to the effectiveness of the Agreement and entered into prior

thereto. In logic terms, it is a sort of an a priori standard: the pertinent

transaction was dependent on a prior acknowledgment of a right, which

brought that right into existence. Stated more simply, the Trustee argues

essentially that in order to have arrived at “B,” one needed to have traveled

through “A.” To which the equally simple reply is “Well, maybe. But to

what is that pertinent?”

There is nothing in the Trustee’s argument that identifies any

transaction that is remotely akin to the voluntary obtaining of a benefit

under the trust, let alone retention of any such benefit. Rather, the entire

“transfer” of the beneficiary’s interest is premised on the beneficiary’s

putative deemed acceptance of the interest via an acknowledgment of a

power in the beneficiary that, as my colleagues correctly point out, is

irrelevant to the trustee’s powers, and that on no theory corresponds to the

5 functional, ascertainable, and real-world requirement that the beneficiary

obtain and retain a benefit on account of such interest. The language of

California Probate Code § 285(b)(3) may be somewhat open-ended, but the

cases interpreting and applying that provision have set forth a flexible but

functional test, and one that does not turn on logical assumptions that have

no reference to the real world. Accepting the standard that the Trustee

here proffers for whether a beneficiary has accepted the interest in a trust

would lead to arbitrary results and to enormous uncertainty on questions

on which the affected parties deserve the predictability that the California

legislature, and the courts, have clearly sought to provide them.

I concur in the decision.

6