Written by Jeremiah J. Moffit, Esq.,* Courtney A. Sorensen, Esq.* Craig S. Weinstein, Esq.*, and Sara Z. May, Esq.*
Balistreri v. Balistreri (2022) 75 Cal.App.5th 511, review granted
The First District Court of Appeal held that when a trust specifies a method of amendment, Probate Code section 15402 provides no basis for validating an amendment that did not comply with that method, regardless of whether the method of amendment is exclusive or permissive.
A surviving spouse filed a petition seeking to construe a trust and confirm the validity of a trust amendment. The trust amendment had been signed by the surviving spouse and her husband the day before the husband died. The trust provided that "[a]ny amendment, revocation, or termination ... shall be made by written instrument signed, with signature acknowledged by a notary public, by the trustor(s)". The surviving spouse contended that she and her deceased husband signed the amendment and accepted it as the acting co-trustees of the trust. However, the amendment signatures were not notarized. Relying on Probate Code section 15402 and case law interpreting that statute, the trial court concluded the amendment was "null and void" because the decedent's signature was not acknowledged by a notary public as required under the trust instrument. Accordingly, the court denied the petition to construe the trust and to confirm the validity of the amendment.
The Court of Appeal affirmed. A trust must comply with the method for amendment provided in the trust instrument, regardless of whether the method of amendment is exclusive or permissive, and regardless of whether the trust provides for identical or different methods of amendment and revocation. Even if the trust amendment was signed, accepted, and adopted by settlors and trustees, it was not notarized as required by the method for amendment set forth in the trust instrument. Unlike Probate Code section 15401 pertaining to the revocation of a trust, Probate Code section 15402 governing modification of a trust provided no basis for validating an amendment that was not executed in compliance with the method provided in the trust. Accordingly, the unnotarized amendment was invalid.
Chui v. Chui (2022) 75 Cal.App.5th 873
The Second District Court of Appeal upheld court approval of a settlement agreement entered into by a guardian ad litem ("GAL") on behalf of minor children beneficiaries over the objections of another beneficiary who was accused of misappropriation of trust assets, even though the agreement resolved the minors' rights in cases where the GAL was not specifically appointed.
The co-trustees and a beneficiary of a trust filed multiple petitions seeking relief under Probate Code section 850, amongst other grounds, and alleging that the respondent had misappropriated trust assets and committed financial elder abuse against the settlor of a trust. The petitions were assigned multiple case numbers. The court appointed a GAL to represent certain minor beneficiaries, but that appointment was not made in all of the related case numbers.
The parties to the petitions settled on the day of trial and orally recited the terms of settlement on the court record. The terms affecting the minor children were subject to the approval of their GAL and...
