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Estate of Dayan

Filed November 3, 2016, Second District, Div. Five Cite as B268416

Testator Margor Dayan transferred interests in real property to her children and to her trust in 1986. After numerous quitclaim deeds were signed and after Dayan made her last will in 2009, title to the property was held two-thirds in the trust and one-third by her son, Anthony. In the will, Dayan revoked the trust and transferred her entire interest in the property to another trust for the benefit of her other son, Ermond. The will contained a no-contest clause. After Dayan’s death, Ermond filed a petition under Probate Code section 850 for an order directing Anthony to transfer his interest in the property to the estate. Ermond claimed that although Anthony had legal title to one-third of the property, Dayan retained equitable title to the entire property. Anthony objected to the 850 petition, arguing he was entitled to the one-third interest previously conveyed to him. In response, Ermond filed a petition to enforce the will’s no-contest clause against Anthony under the theory that his objection to the 850 petition sought to invalidate the portion of the will disposing of all of Dayan’s right, title, and interest in the property. The trial court denied the 850 petition and Ermond’s request to enforce the no-contest clause.

The appellate court affirmed. Ermond failed to present sufficient evidence to overcome the presumption of record title showing Anthony was the owner of a one-third interest in the property. Dayan never sought to quiet title to the property after transferring the interest to Anthony, despite having had more than twenty years to do so. The no-contest clause was not triggered because Anthony’s assertion of ownership was not a direct challenge to the will, a challenge to the operative transfer of ownership to him, or a creditor’s claim.

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