Can emails to an estate planning attorney constitute an amendment to an individual's revocable trust? This interesting legal question was the focus of a recent appellate case:
Jerry and Mary Trotter, who were married, established the Trust as a
revocable trust in 2011, and named themselves collectively as both
"Trustee" and "Trustors." The Trust names Timothy, their son, as the
successor trustee in the event neither Jerry nor Mary can act as a
trustee. The Trust also provides that upon the death of whichever spouse
survives the other, certain stock is to be distributed to Timothy, and
the rest of the trust estate should be distributed in equal shares to
each of several children, including Jerry's daughter from another
marriage, Van Dyck.
When Jerry died in 2012, Mary became the sole trustee. According to
declarations in the record, Mary intended to exclude Van Dyck as a
beneficiary because Van Dyck had already inherited from Jerry's previous
wife, and Mary believed Van Dyck had "been fairly provided for" in
2015. In relevant part, the Trust authorized Mary to amend the Trust "by
an instrument in writing signed" by Mary and delivered to the "Trustee"
— at the time, herself.
In late June 2020, Mary, Timothy, and Matthew Pribyl, Mary's estate
planning attorney, exchanged e-mails about amending the Trust, excerpted
below. On June 25, before her scheduled surgery on July 1, Mary
e-mailed Timothy stating:
"My mind is quite clear now as [to] how to move forward on the house and will.
"I will write it out and then we need to see that the lawyer gets a copy asap and start redoing the will and trust.
"1. The house will go to you
"2. My cash assets will be divided among my five children; nothing to Wendy [¶] . . . [¶]
"The rest of selected items will be assigned to different children/grandchildren and I'm working on that list.
"Thanks, mom"
Mary underwent surgery the next day on July 1, 2020, and contracted an
infection while in the hospital. She suffered two heart attacks and
passed away a few weeks after her surgery. Timothy became the successor
trustee, and when disputes arose about the administration of the Trust,
Timothy petitioned the probate court for instructions. He sought, among
other things, guidance about "whether under the express terms of the
Trust, [Van Dyck], by reason of Mary's writings, has been removed as a
beneficiary of the [Trust]."
Timothy J. Trotter (Timothy), successor trustee of the Trotter Family
Revocable Trust (Trust), petitioned the probate court seeking guidance
about whether certain e-mails from his mother, Mary Trotter (Mary),
constituted a valid amendment to the Trust's beneficiaries. The court
found that Mary's writings were insufficient to constitute an amendment
to the Trust, and it ordered that the Trust be distributed to its
original beneficiaries, including Wendy Trotter Van Dyck (Van Dyck).
The appellate court concluded "that at least two of the grounds the court relied on were proper: (1)
there was no signed document amending the Trust and the electronic
signature provision of the Uniform Electronics Transaction Act (UETA)
does not apply because a unilateral trust amendment does not constitute a
"transaction" within the meaning of the statute (Civ. Code
§ 1633.2, subd. (o)); and (2) Mary's writings did not adequately
express an intent to amend the trust by the writings themselves."
Trotter v. Van Dyck (2024) ____ Cal.App.4th ____