By Jeremiah J. Moffit, Esq.,* Catherine M. Swafford, Esq.,* Matthew R. Owens, Esq.,* and Courtney A. Sorensen, Esq.*
Cundall v. Mitchell-Clyde (2020) 51 Cal.App.5th 571
The Second District Court of Appeal held the settlor may revoke the trust under Probate Code section 15401, subdivision (a)(2), unless a trust instrument provides an exclusive method of revocation.
In February 2009, the settlor established a revocable trust (the "First Trust") naming himself as trustee and his friend as remainder beneficiary. The First Trust provided that the settlor could revoke the First Trust by delivering a written revocation to the trustee, signed by both the settlor and the settlor's estate planning attorney. The settlor became estranged from his friend who was the named remainder beneficiary. In May 2009, the settlor revoked the First Trust by an instrument signed by only the settlor and not by his estate planning attorney. Concurrently, the settlor signed a new trust naming other individuals as the remainder beneficiaries (the "Second Trust"). After the settlor's death, the beneficiaries of the First Trust and the Second Trust brought actions in probate court to determine whether the settlor validly revoked the First Trust. The trial court held that the settlor validly revoked the First Trust and the Second Trust was operative. The named remainder beneficiary of the First Trust appealed.
The court of appeal affirmed. Probate Code section 15401(a) provides two alternative methods of revocation. First, under subdivision (a)(1), a trust can be revoked by complying with the method of revocation provided in the trust instrument. Second, under subdivision (a)(2), a trust can be revoked by a writing, other than a will, signed by the settlor or the person holding the power to revoke, and delivered to the trustee during the lifetime of the settlor or the person holding the power to revoke. However, if the trust explicitly makes the method of revocation exclusive, the second alternative is not available, and the method of revocation must comply with the requirements of the trust instrument. Here, the named remainder beneficiary argued that the First Trust required the settlor's estate planning attorney to sign the revocation, and the revocation method was exclusive. Unless a trust contains an explicit statement that its revocation method is exclusive, the second statutory method of revocation remains available. The revocation provision in the First Trust was not exclusive because it did not state that it was exclusive, requiring an inference to be deemed exclusive. The named remainder beneficiary also argued that the second statutory method of revocation could not apply because the estate planning attorney acted as a trust protector. However, the statutory revocation procedure does not contain an exception for trusts that require a person other than the settlor to approve the revocation.
Buskirk v. Buskirk (2020) 53 Cal.App.5th 523
The Second District Court of Appeal held California courts have case-linked personal jurisdiction over out-of-state trustees and beneficiaries who purposefully avail themselves of forum benefits, where the controversy relates to their contacts with the forum and the exercise of jurisdiction comports with fair play and substantial justice. The settlors created a trust while California residents. They named themselves co-trustees and chose to have the trust governed by California law. Following the husband's death, the wife administered the trust as sole trustee until she moved to Idaho. The wife was the sole lifetime beneficiary and her son, two daughters, and granddaughter were the remainder beneficiaries. The son contended her...
