68 Cal.App.5th 1003
Cal. Ct. App.2021Background
- Settlor Jeane M. Bertsch executed a revocable trust in 2015 reserving “the right by an acknowledged instrument in writing to revoke or amend this Agreement or any trust hereunder.”
- In 2016 Bertsch signed a written amendment (apparently notarized in Illinois) naming Brianna McKee Haggerty as successor trustee.
- Bertsch prepared a 2017 handwritten beneficiary list (unsigned) excluding Haggerty, and a 2018 handwritten amendment (signed by Bertsch, not notarized) directing distribution that also excluded Haggerty; Bertsch instructed former attorney Patricia Galligan to keep the 2018 amendment with her copy of the trust.
- Bertsch died in late 2018. Nancy Thornton petitioned to be confirmed successor trustee contending the 2016 amendment had been revoked and asserting the 2017/2018 documents were valid; Haggerty filed competing petitions arguing the 2017/2018 documents were invalid because they were not “acknowledged” as required by the trust (and Civil Code acknowledgment requirements).
- The probate court held the 2018 amendment valid. Haggerty appealed, arguing the trust’s amendment method controlled and required formal acknowledgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trust’s phrase “acknowledged instrument in writing” requires formal Civil Code-style notarized acknowledgment to amend the trust | Haggerty: "acknowledged" means legally acknowledged (notarized or by authorized official) under Civil Code, so 2018 amendment invalid | Respondents: phrase is ambiguous; can mean the settlor acknowledged/authenticated the paper (no formal notary required); extrinsic evidence may show settlor intent; statutory revocation/modification methods also available | Court: phrase does not make the trust’s method exclusive; under §15402 the method of modification follows the method of revocation unless the instrument provides otherwise; 2018 amendment valid where signed and delivered to trustee by settlor |
| Whether specifying a method of amendment in the trust makes that method exclusive (displacing statutory revocation/modification procedures) | Haggerty: specified method in instrument controls and is exclusive (relying on King majority) | Respondents: statutory methods under Probate Code §§15401–15402 remain available unless the instrument explicitly makes its method exclusive; the trust here did not explicitly make the method exclusive | Court: the trust did not distinguish revocation from modification or explicitly make its method exclusive; statutory revocation method was available and Bertsch complied (signed and delivered), so the 2018 amendment is a valid modification |
Key Cases Cited
- King v. Lynch, 204 Cal.App.4th 1186 (Cal. Ct. App. 2012) (discusses whether a trust’s specified modification method is exclusive; majority and dissent interpret §§15401–15402 differently)
- Huscher v. Wells Fargo Bank, 121 Cal.App.4th 956 (Cal. Ct. App. 2004) (examines exclusivity of trust modification method under prior and current law)
- Masry v. Masry, 166 Cal.App.4th 738 (Cal. Ct. App. 2008) (reservation of rights in trust not explicitly exclusive does not preclude statutory methods)
- Barefoot v. Jennings, 8 Cal.5th 822 (Cal. 2020) (primary duty in trust construction is to effectuate settlor’s intent)