In Re: B.C. Fox Trust, U/A/D, July 1, 1997, as Amended.

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0770

In Re: B.C. Fox Trust, U/A/D, July 1, 1997, as Amended.

Filed April 11, 2022
Reversed and remanded
Johnson, Judge

Hennepin County District Court
File No. 27-TR-CV-18-16

Joseph J. Cassioppi, Jade B. Jorgenson, Fredrikson & Byron, P.A., Minneapolis, Minnesota
(for appellant David K. Fox)

Julian C. Zebot, Peter C. Hennigan, Ma slon L.L.P., Minneapolis, Minnesota (for
respondent Richard B. Fox)

Philip R. Schenkenberg IV, Taft, Stettiniu s & Hollister, L.L.P., Minneapolis, Minnesota
(for respondent Security Bank & Trust Co.)

Considered and decided by Johnson, Presiding Judge; Reyes, Judge; and Cochran,
Judge.
NONPRECEDENTIAL OPINION
JOHNSON, Judge
This appeal concerns a dispute between two brothers regarding a trust that was
established by their late father. The appellant claims that the respondent is disentitled from
receiving any distributions from the trust on the ground that the respondent violated a no-
contest clause in the trust agr eement. The district court re jected the appellant’s claim on
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cross-motions for summary judgment. We conclude that, as a matter of law, the respondent
violated the no-contest clause. Therefore, we reverse and remand.
FACTS
B.C. Fox passed away in March 2017. At the time of his death, he had three adult
children: Richard B. Fox, Gerald C. Fox, a nd David K. Fox. Rich ard is a resident of
California and is both a licensed physician and a licensed attorney. Gerald was a resident
of Minnesota for most of his life but relocated to California six years before his death in
October 2017. David is a resident of Florida and manages a family business.
In 1997, B.C. established the B.C. Fox Revocable Trust (hereinafter the B.C. Trust).
During B.C.’s lifetime, the trustee was required to pay him the trust’s net income and had
discretion to distribute principal to him. The trust agreement was amended ten times during
B.C.’s lifetime. In 2009, B.C. executed the fifth amendment, which provided that he,
David, and an unrelated person would serve as co-trustees. In January 2012, David and
the unrelated person executed the sixth amendm ent, which purported to remove B.C. as
trustee. In February 2012, B.C. executed the seventh amendm ent, which stated that his
removal as trustee was invalid, revoked the sixt h amendment, and stated that B.C. is the
sole trustee. In March 2012, B.C. execut ed the eighth amendm ent, which appointed
himself, David, and the unrelat ed person as co-trustees; stated that Richard would
substitute for B.C. during any period in which B.C. was incompetent; and stated that David
would become the sole trustee upon B.C.’s death. In October 2012, B.C. executed the ninth
amendment, which, among other things, appoi nted himself, Richard (instead of David),
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and the unrelated person as co-trustees and further provided that Richard (instead of David)
would become sole trustee upon B.C.’s death.
The B.C. Trust agreement, as amended, provides that, upon B.C.’s death, all assets
identified in Schedule C shall be distributed to Richard, all assets identified in Schedule B
shall be distributed to the Gerald C. Fox Intervivos Trust (hereinafter the Gerald Trust), all
assets identified in Schedule D shall be distri buted to David, and al l assets not listed in
Schedules B, C, or D shall be distributed equally to David and the Gerald Trust.
The record reflects that Gerald had limited cognitive abilities but that he graduated
from high school, lived independently, held a driver’s license, and worked in a warehouse
of his father’s business. Gerald establishe d the Gerald Trust in 2011. He appointed
Richard to be the trustee. The Gerald Tr ust agreement provides that, during Gerald’s
lifetime, the trustee was required to pay him the trust’s net income and had discretion to
distribute principal to him.
Gerald moved to California in 2011. He lived near Richard and his wife, who cared
for Gerald in various ways. A California trial court later found that Richard “managed all
aspects of [Gerald’s] life and care, including payment of rent, buying food, and managing
[Gerald’s] medical care.” In September 2016, Richard received a lump-sum payment and
began receiving monthly payments from Gerald in consideration of the assistance that
Richard and his wife were prov iding to him. Richard receiv ed a total of approximately
$135,000 in such payments.
Gerald’s health declined si gnificantly in 2016 and 2017. He was hospitalized on
multiple occasions and eventually was unable to live independently when not hospitalized.
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After one discharge from the hospital, Richard and his wife brought Gerald to their home
in lieu of his going to a nursing facility. Gerald was at Richard’s home for four days before
he was readmitted to the hospital on September 16, 2017.
On September 18, 2017, Richard sent a long e-mail message to Gerald’s attorney in
which Richard expressed “hard feelings” that he and his immediate family had not received
more of the assets of the B.C. Trust and would not receive any assets of the Gerald Trust,
despite having served as caregivers for both B.C. and Gerald. Richard told Gerald’s
attorney that he would not allow Gerald to return to Richard’s home until there was “a
satisfactory resolution” of Richard’s concerns. Two days later, after having received no
response, Richard sent another e-mail message to Gerald’s attorney in which he stated that
the division of B.C.’s estate was “unequal.” He also stated that he should receive a share
of Gerald’s estate because he had borne th e “heavy burden” of caring for Gerald since
2011. Richard acknowledged that Gerald was unable to amend his trust agreement and
stated that he would consider asking a court to appoint a c onservator for the purpose of
amending the trust agreement. Richard concluded by stating that he would resign as trustee
of the Gerald Trust because he had “a substan tial conflict of interest.” Richard formally
withdrew as trustee on September 20, 2017.
Near the end of his life, Gerald was de pendent on a forced-air-breathing machine,
which made it difficult for him to speak, eat, or drink. On October 2, 2017, Richard visited
Gerald in his hospital room and, in the presence of hospital staff, told Gerald that he would
take Gerald to his home and care for him there, so long as Gerald provided him with money.
On October 4, 2017, Richard returned to Gerald’s hospital room and presented him with a
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second amendment to the Gerald Trust agre ement, which Richard had drafted. The
document bears an indecipherable mark on the grantor’s signature line and the signatures
of two witnesses, one of whom is Richard. The other supposed witness later denied
witnessing Gerald’s signature. Richard later stipulated that Gerald lacked capacity to
execute the second amendment on October 4, 2017. It appears that Gerald moved from the
hospital to Richard’s home on October 7, 2017. Gerald died three days later, on October
10, 2017.
The second amendment to th e Gerald Trust agreement purported to change the
distributions that are required after Gerald’s death. Before October 2017, the Gerald Trust
agreement provided in article III that, upon Gerald’s de ath, the trustee shall distribute
certain identified trust assets to David’s two children and the remainder of the trust’s assets
to the Gerald C. Fox Foundation (hereina fter the Gerald Foundation), a charitable
foundation that Gerald had established for the purpose of making do nations to certain
Minnesota-based charities. The second amendment that Gerald supposedly signed six days
before his death deleted the existing article III and substituted for it three new provisions.
First, the second amendment provided that, after Gerald’s death, five identified assets shall
be distributed to David’s wife or children. Second, the second amendment provided, “Any
trust assets received by the Gerald C. Fox Trust from the B.C. Fox Trust Agreement dated
July 1, 1997 under paragraph 7.c.4 of the B.C. Fox Trust shall be distributed to Richard B.
Fox.” And third, the second amendment provided that the trustee shall distribute 45 percent
of the remaining assets to Richard, 5 percent to Richard’s son, and 50 percent to the Gerald
Foundation.
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In November 2017, David filed a compla int with the office of the Minnesota
attorney general, which regula tes charities, stating that the Gerald Foundation had been
deprived of assets due to an improper amendment to the Gerald Trust agreement. Shortly
thereafter, an assistant attorn ey general sent a letter to Richard with 20 requests for
information or documents and an instruction to not distribute or transfer any assets of the
Gerald Trust “until further notice.”
In February 2018, David and the Gerald Foundation commenced this action in the
Hennepin County District Cour t . T he y s ou ght t o e nj o i n Richard from tr ansferring any
assets of the B.C. Trust, to require him to provide an acco unting, and to remove him as
trustee of the B.C. Trust.
At approximately the same time, Davi d’s children and the Gerald Foundation
commenced an action in a Calif ornia trial court. They so ught, among other things, a
declaration that the second amendment to the Gerald Trust agreement is invalid. In April
2018, the Hennepin Coun ty District Court stayed this action pending the outcome of the
California case.
In February 2020, after a four-day court trial, the California trial court issued a 45-
page order in which it concluded that Richard had committed financial elder abuse against
Gerald by forcing him to sign the second amendment to the Gerald Trust agreement. See
Cal. Welf. & Inst. Code §§ 15610.30(a)(3), 15610.70(a) (2020). The California trial court
specifically found that Richard was motivated by perceived inequities in the disposition of
B.C.’s estate. The California trial court declared the second amendment to the Gerald Trust
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agreement void and awarded David’s children and the Gerald Fo undation more than
$1,000,000 in attorney fees and costs.
In March 2020, David and the Gerald Foundation ame nded the petition in this
action. They sought the disallowance of Richard’s accounting, the permanent removal of
Richard as trustee of the B.C. Trust, and an award of attorney fees and costs. They also
sought to void the distributions that otherwise would be made by the B.C. Trust to Richard,
based on Richard’s alleged viol ation of the following no-contest clause in the B.C. Trust
agreement:
In the event any beneficiar y directly or indirectly
contests the validity of this trust or the distributions thereof in
any manner, then any bequest he rein made in favor of such
contesting person shall be void and of no effect and such
bequest will ratably augment the shares of the other
beneficiaries entitled to distributive shares of the trust estate.

The Gerald Foundation later was voluntarily dismissed.
In November 2020, the parties filed cro ss-motions for partial summary judgment.
David sought judgment as a ma tter of law on his request fo r the removal of Richard as
trustee of the B.C. Trust and his claim that Richard had violated the B.C. Trust’s no-contest
clause. Richard sought judgment as a matter of law on David’s cl aim that Richard had
violated the no-contest clause. While the motion was pending, Richard voluntarily
resigned as trustee of the B.C. Trust, ther eby resolving one issue in David’s amended
petition and summary-judgment motion.
In March 2021, the district court filed an order in which it granted Richard’s motion
and denied David’s motion. The district cour t concluded that Richard did not violate the
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no-contest clause in the B.C. Trust agreement. The parties stipulated to the entry of final
judgment. David appeals.
DECISION
David argues that the district court erred by entering summary judgment in favor of
Richard on David’s claim that Richard violated the no-contes t clause in the B.C. Trust
agreement.
A district court must grant a motion fo r summary judgment “if the movant shows
that there is no genuine issue as to any material fact and the movant is entitled to judgment
as a matter of law.” Minn. R. Civ. P. 56.01. A genuine issue of mate rial fact exists if a
rational trier of fact, considering the record as a whole, could find for the non-moving party.
Frieler v. Carlson Mktg. Grp., Inc., 751 N.W.2d 558, 564 (Minn. 2008). This court applies
a de novo standard of review to the district court’s legal conclusions on summary judgment
and views the evidence in the light most favorable to the party against whom the motion
was granted. Commerce Bank v. West Bend Mut. Ins. Co. , 870 N.W.2d 770, 773 (Minn.
2015).
A.
The parties agree that the Minnesota Trust Code, which is contained in chapter 501C
of the Minnesota Statutes, does not contain any provision governing a no-contest clause in
a trust agreement. Accordingly, our resolution of the parties’ dispute is governed solely by
the terms of the B.C. Trust agreement. See Minn. Stat. § 501C.0105(b) (2020); Unif. Trust
Code § 105 cmt. (Unif. Law Co mm’n 2000). In in terpreting and applying the no-contest
clause in the B.C. Trust agreement, we are mindful that a no-contest clause is considered a
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forfeiture provision, In re Estate of Vittorio, 546 N.W.2d 751, 757 (Minn. App. 1996), and
that forfeiture provisions are “strictly construed and not extended beyond the true intent of
the parties,” Naftalin v. John Wood Co., 116 N.W.2d 91, 100 (Minn. 1962).
If a court is required to interpret a trus t agreement, the court’s purpose “is to
ascertain and give effect to the grantor’s intent.” In re Stisser Grantor Trust, 818 N.W.2d
495, 502 (Minn. 2012). “A court should seek out the gr antor’s dominant intention by
construing the trust agreement in its entirety.” In re Van Dusen Marital Trust, 834 N.W.2d
514, 520 (Minn. App. 2013), rev. denied (Minn. June 26, 2013). A trust agreement is to
be construed “to give effect to the [grantor’s] intent as e xpressed in [its] plain language.”
In re Trusteeship Under Kischel Trust, 299 N.W.2d 920, 923 (Minn. 1980); see also In re
Trusteeship Under Agreement with Mayo, 105 N.W.2d 900, 903 (Minn. 1960). “If the trust
agreement is unambiguous, a court should look to the language of the agreement to discern
the grantor’s intent and not consider extrinsic evidence.” Van Dusen, 834 N.W.2d at 520;
see also In re Trust Created Under Agreement with McLaughlin , 361 N.W.2d 43, 44-45
(Minn. 1985). “Under all circumstances [the tr ust agreement] must be construed to carry
out the main object of the settlor as disclosed by its terms notwithstanding inaccuracies of
expression, ineffectiveness of terms, or th e presence of provisions therein which on their
face appear inconsistent therewith.” In re Fiske’s Trust, 65 N.W.2d 906, 910 (Minn. 1954).
“This court applies a de novo standard of review to a district court’s interpretation of a trust
agreement.” Van Dusen, 834 N.W.2d at 520.

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B.
The district court began its analysis of th e parties’ arguments by stating that there
are no genuine issues of material fact. The district court noted that David sought to prove
“that Richard violated the [B.C.] Trust’s no -contest clause by complaining about [B.C.]
Trust distributions and attempting to modify the Gerald Trust.” The district court rejected
David’s argument for the following reasons:
Richard attempted to change the distributions made by
the Gerald Trust. The Gerald Trust, however, is completely
separate from the [B.C.] Trust. Richard did not contest either
the validity or distributions of the [B.C.] Trust. Richard’s
actions did not affect the distributions of the [B.C.] Trust or the
receipt of any [B.C.] Trust a ssets by the Gerald Trust.
Richard’s opinion that the [B .C.] Trust distributions were
unfair does not constitute a “conte st” as required by the plain
language of the [B.C.] Trust’s no-contest clause. To rule
otherwise would be giving an overly broad interpretation to the
[B.C.] Trust’s no-contest clause.

David contends that Richard “contested” distributions of the B.C. Trust when he
attempted to amend the Gerald Trust agreement due to his perception that he would receive
an “unequal” share of B.C.’s es tate. Specifically, David contends that Richard indirectly
contested distributions of the B.C. Trust because, by causing Gerald to amend the Gerald
Trust agreement, Richard sought to take “distributions from the B.C. Fox Trust, which B.C.
Fox intended to be distributed to the Gerald Fox Trust and subseque ntly the Foundation,
and made himself the beneficiary of those dist ributions.” David focuses on the language
of the second amendment to the Gerald Trust agreement th at specifically refers to
distributions required by section 7.c.4. of the B.C. Trust agreement. In response, Richard
contends that, if the second amendment to the Gerald Trust agreement had not been
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invalidated, it would have had “zero impact on the distribution of” B.C. Trust assets such
that Richard’s conduct was not a “contest” of distributions of the B.C. Trust.
C.
At the center of the parties’ dispute is the meaning of the word “contest,” when used
as a transitive verb. One lead ing lay dictionary defines the word to mean “to struggle or
fight for, as in battle.” The Random House Dictionary of the English Language 439 (2d
ed. 1987). Another lay dictionary defines th e word as meaning “[t]o make a subject of
dispute or contention.” Webster’s New International Dictionary of the English Language
575 (2d ed. 1946). Lay dictionaries also recognize that the word has a specialized meaning
in the law. See, e.g., id. A leading legal dictionary defines the word to mean “[t]o deny an
adverse claim or assert a defense to it in a court proceeding.” Black’s Law Dictionary 398
(11th ed. 2019).
We also must consider the meaning of th e phrase “directly or indirectly,” which
serves as an adverb modifyi ng the verb “contest.” A lay dictionary defines the word
“indirect” to mean “[n]ot leading to an aim or result by the plainest course or method or by
obvious means,” “roundabout,” and “[n]ot resulting directly from an act or cause, but more
or less remotely connected w ith, or growing out of, it.” Webster’s New International ,
supra, at 1267. Another lay dictionary defines the word “indirect” to mean “[n]ot forthright
and candid” or “devious.” The American Heritage Dictiona ry of the English Language
919 (3d ed. 1992).
Richard contends that a person “indirectly” contests a trust agreement only if he or
she prompts another person to make a direct contest or assists another person in making a
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direct contest. For this contention, Richard cites Restatement (Third) of Property: Wills &
Other Donative Transfers § 8.5 cmt. e (2003). The comment on which Richard relies states
that a no-contest clause may be violated “not only by a direct contest or challenge . . . but
also by voluntary conduct of the beneficiary that amounts to an indirect contest or
challenge.” Id. The comment gives an example of a person who “instigates or aids another
person in that person’s attempt to contest” a will or a trust agreement. Id. But the example
is merely that: an example. It does not appear that the example is intended to be a statement
of the exclusive means by which a person may indirectly contest a trust agreement.
Accordingly, we decline to in terpret the phrase “directly or indirectly” in the B.C. Trust
agreement to be limited to the situation in which a beneficiary prompts or assists another
person in a direct contest to a trust agreement.
D.
Given the plain meaning of the words used in the no-contest clause of the B.C. Trust
agreement, we conclude, as a matter of law, that the provision encompasses Richard’s
conduct in this case.
Richard attempted to change the ultimate disposition of a distribution of assets from
the B.C. Trust to the Gerald Tr ust. Richard attempted to do so by causing Gerald to sign
the second amendment to the Gerald Trust agreement. The second amendment, which
Richard had drafted, specifically referred to a particular dist ribution of the B.C. Trust:
“Any trust assets received by the Gerald C. Fox Trust from the B.C. Fox Trust Agreement
dated July 1, 1997 under paragraph 7.c.4. of the B.C. Fox Trust shall be distributed to
Richard B. Fox.” (Emphasis added.) In the absence of the second amendment to the Gerald
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Trust agreement, the identified assets then held by the B.C. Tr ust would have been
distributed by the B.C. Trust to the Gerald Tr ust and then distributed by the Gerald Trust
to the Gerald Foundation. If the second amendment to the Gerald Trust agreement had not
been invalidated by the California trial court, the identified assets of the B.C. Trust would
have been distributed by the B.C. Trust to th e Gerald Trust and then distributed by the
Gerald Trust to Richard instead of the Gerald Foundation.
At the time that Richard caused Gerald to sign the second amendment, Richard was
the sole trustee of the B.C. Trust and, thus, able to determine the timing of the distributions
that were required to be made by the B.C. Trust after B.C.’s death. Richard had not made
any distributions from the B.C. Trust to the Gerald Trust between B.C.’s death in March
2017 and Gerald’s death in Oc tober 2017. By not distributin g assets from the B.C. Trust
to the Gerald Trust, and by amending the Gerald Trust to provide that assets then held by
the B.C. Trust later would be re-distributed to himself, Richard essentially arranged for a
different disposition of assets that were to be distributed by the B.C. Trust.
Richard’s actions constitute an indirect c ontest of the B.C. Tr ust’s distribution of
the assets identified in paragr aph 7.c.4. of the B.C. Trust agreement. Richard contested
that distribution when he caused Gerald to sign the second amendm ent, which initiated a
“struggle” or “fight” for the assets then held by the B.C. Trust and made them the “subject
of dispute.” See Random House , supra, at 439; Webster’s New International , supra, at
575. Richard contested the same distribution of the B.C. Trust when he denied the adverse
claims of David and the Gerald Foundation and defended against the Gerald Foundation’s
claims in the California case. See Black’s, supra, at 398. Richard violated the no-contest
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clause even though he did not directly challenge a distribution from the B.C. Trust to the
Gerald Trust. Richard’s contest was indirect because it was designed to achieve a particular
result by a “roundabout” means, which was “more or less remotely connected with”
Richard’s goal, was “not forthright and candid,” and was “devious.” See Webster’s New
International, supra, at 1267; American Heritage, supra, at 919. Furthermore, Richard’s
conduct is within the scope of the no-contes t clause because the cl ause encompasses an
indirect contest that is made “in any manner.”
Thus, the district court erred by granting Richard’s motion and by denying David’s
motion. Therefore, we reverse and remand with instructions that the district court grant
David’s motion, conclude that Richard violat ed the no-contest clause in the B.C. Trust
agreement, order a remedy for the violation that is consistent with the language of the no-
contest clause, and order the entry of summary judgment in favor of David.
Reversed and remanded.