Metropolitan News-Enterprise


Thursday, February 22, 2007


Page 3


Crime Victim Cannot Collect Restitution From Attacker’s Trust—C.A.




A court cannot order a trustee to pay restitution to the victim of a violent crime committed by the beneficiary if the terms of the trust grant the trustee discretion over whether to make payments to the beneficiary and the trustee has not done so, the Court of Appeal for this district ruled yesterday.

Div. One affirmed a ruling by Los Angeles Superior Court Judge Richard Kolostian, now retired, that he had no authority to order Kathy Jayne McCoy to release funds to pay restitution to Richard Young.

Young was shot and injured during a family argument at his mother’s home in Woodland Hills in 1997. The shooter, Steven Young, is the victim’s brother and was sentenced to life plus 13 years in prison for attempted murder.

Following the conviction, Richard Young sued his brother and obtained a default judgment for $1.275 million.

While that suit was pending, Lucille Young, Richard and Steven Young’s mother, amended her testamentary trust, naming McCoy as successor trustee and ordering that the trust be held for the benefit of Steven Young throughout his life, with any remaining assets going to the Christian Science Foundation after his death.

A subsequent amendment reaffirmed that the trust was primarily for the care of Steven Young, with “due concern to his needs and comfort...for the rest of his life...the interest of the charitable remainder beneficiary is secondary to the purpose.”

Lucille Young died in March 2005, survived only by her two sons. Richard Yong then petitioned the court to enforce his judgment against Steven Young from the trust assets.

McCoy asked the court for instructions, explaining that she had made no payments to Steven Young because as a prisoner, his “basic needs” were being taken care of by the state.

In denying the petition, Kolostian ruled that under Probate Code Sec. 15305.5(c), the probate court may order that payments from a trust be made to the beneficiary’s restitution judgment creditor only after the trustee has first determined to make payments to the beneficiary.

That ruling was correct, Justice Frances Rothschild wrote for the Court of Appeal, citing the history and context of the legislation. She cited a statement by the 1991 law’s sponsor, then-Assemblyman Tom Umberg, that “I do not believe a beneficiary should be permitted to have the enjoyment of the interest under the trust while neglecting to pay restitution to the victim.” 

The justice went on to say that the trial court’s ruling was consistent with the trustor’s intent, which was to give the trustee discretion in determining the beneficiary’s needs. “We find in McCoy’s exercise of discretion no evidence of the bad faith or unreasonable conduct that is required to find that a trustee has abused her discretion,” Rothschild wrote.

She distinguished an earlier case in which the Court of Appeal held, under a similar statute, that a trustee abused his discretion by failing to make payments to a beneficiary, which would have triggered an opportunity for a child support agency to collect funds from the trust for the support of the beneficiary’s children.

In that case, Rothschild explained, the trustor—the beneficiary’s mother—had intended to provide support for her grandchildren, an intent that the trustee was frustrating.

“Here, by contrast, McCoy explained why she did not deem any payments toward Steven’s support to be necessary: given her obligation under the trust to consider alternate sources of support, she saw that the State of California was providing for Steven’s needs,” the justice wrote. “This explanation is reasonable and in keeping with Lucile’s stated intent.”

The case is Young v. McCoy, B189885.


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