Burkett

Peter Capovilla (son) successfully appeals from the trial court’s Order on Petition of Trustee for Instructions. The order instructs Deborah Burkett (trustee), the successor trustee of the Erma Mary Olivera Living Trust, to distribute the trust’s primary asset to the issue of Olivera’s (settlor) deceased daughter, Eleanor Rollings (daughter). Son contends the gift to daughter lapsed because she predeceased settlor. The trust instrument requires that beneficiaries survive for 60 days before they are entitled to receive any gift under the trust.

The trial court ruled that the trust instrument requires only that beneficiaries survive for 60 days after settlor executed the instrument. Because daughter satisfied that condition, the anti-lapse statute, Probate Code § 21110, applies and daughter’s children take the asset in her place.

On de novo review we conclude that the trial court erred. The trust instrument must be read to require that daughter survive for 60 days after settlor’s death, not 60 days after she executed the trust instrument. Because daughter predeceased settlor, the gift to daughter lapsed. Because the trust instrument contains a survivorship requirement,…