Don’t Rely on a Post-It® Note to Amend Your California Trust

Procrastination seems to always invite disaster, and even when something appears to be simple, waiting until the last minute can cause mistakes. A California court had to decide an issue that dealt with procrastination: What happens when a settlor does not fully comply with the trust instrument’s modification procedure, even though it’s highly obvious that he intended to amend his trust?

The California Court of Appeal decided recently in Pena v. Dey (2019) 39 Cal.App.5th 546 that the issue must be faced with strict compliance of the trust’s modification procedures, which indicated that any amendment “shall be made by written instrument signed by the settlor and delivered to the trustee.” James Robert Anderson created the trust in 2004, making himself both settlor and trustee. He executed an amendment in 2010, and shortly afterwards was diagnosed with cancer. James called an attorney in early 2014 to amend his trust so as to add Grey Dey, a friend that had been assisting him, as a beneficiary. The attorney told him to send him the trust documents with all necessary changes, and he received the interlineations in March 2014 with a Post-it note, on which James wrote: “Hi Scott, Here they are. First one is 2004. Second is 2008. Enjoy! Best, Rob.” Sadly, James passed away in May before he could review and sign the second amendment.

Margaret Pena, the successor trustee, petitioned the trial court for instructions as to whether the interlineations constituted a valid amendment. The trial court granted the trustee’s motion for summary judgement, holding tight to the trust amendment formality requirements. The appellate court affirmed the trial court’s decision, finding that the written document itself had not been signed and that the Post-It® Note could not provide for the missing signature line.

See Christopher Miles Kolkey, Don’t Rely on a Post-It® Note to Amend Your California Trust, Trust on Trial, October 28, 2019.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) and Jim Hartnett, Jr. (Dallas, Texas Probate Attorney) for bringing this article to my attention.