Case Law Update: Capacity to Amend Trust

The capacity to amend a revocable trust is the same as testamentary capacity.

The settlor’s children challenged the validity of amendments the settlor made to his revocable inter vivos trust. The trial court invalidated the amendments finding that the settlor lacked contractual capacity.

In Andersen v. Hunt, 126 Cal. Rptr. 3d 736 (Cal. Ct. App. 2011), the intermediate appellate court reversed, holding that because the amendments were simple and related to distribution of trust property after the settlor’s death, they were “indistinguishable from a will or codicil,” that the settlor did have testamentary capacity, and that accordingly the amendments were valid.

Special thanks to William P. LaPiana (Rita and Joseph Solomon Professor of Wills, Trusts,and Estates, New York Law School) for sending me this case law update.