The method by which trusts may be amended is first determined by the method described in the trust instrument. If the trust instrument is silent on the method of trust modification, then in accordance with Probate Code section 15402, the trust may be modified in the same manner it may be revoked. Correspondingly, if the trust is amended in contravention with the terms of the trust agreement, the amendment may be deemed invalid. The case between King et al., v. Lynch illustrates the Court of Appeal's stance with regard to the validity of trust modifications.
In King et al. v. Lynch, a married couple, Zoel and Edna Lynch created a revocable trust. The trust designated Zoel and Edna (settlors), as initial trustees of the trust. The trust provided that during the lifetime of the settlors, the income and principal of the trust would be used for the support of the settlors.
The trust instrument created by Zoel and Edna made specific provisions for trust modification and revocation. Specifically, the trust may be amended, in whole or in part, by an instrument of writing signed by both settlors and delivered to the Trustee. The trust may be revoked, in whole or in part, by an instrument in writing signed by either settlor and delivered to the Trustee and the other Settlor. Should one of the settlors die, the surviving spouse shall have the powers to amend or revoke the trust in whole or in part. If either or both settlors are incapacitated, then amendment or revocation may be authorized, after notice to the Trustee, by the court that appoints the conservator, guardian or other fiduciary.
More on King et al. v. Lynch in subsequent blogs…
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*This blog entry was not written by an Attorney and should not be construed as professional legal advice.