Tuesday, April 14, 2020
In Pena v Day, Anderson created a revocable trust in California in 2004 in which he was both the settlor and the trustee. The Trust specifically provided that amendments “be made by written instrument signed by the settlor and delivered to the trustee.” The Court was presented a question of whether Anderson validly amended the trust through the use of handwritten interlineations and a Post-it Note.
The settlor formally amended the trust in 2008, but then Anderson was diagnosed with abdominal cancer and then brain cancer in 2010, and Grey Dey moved in with him to care for him until his death in 2014. In February 2014, Anderson called an attorney regarding amending the trust document as well as other estate planning document, and the attorney requested that he send him copies of the documents that Anderson sought to amend. Anderson wrote on the trust document, crossed out some beneficiaries, added Dey and two other beneficiaries, and changed the distribution percentages. Attached to the trust documents was a Post-it Note that said: "Hi Scott, Here they are. First one is 2004. Second is 2008. Enjoy! Best, Rob." Anderson passed away before the attorney prepared the amendment for his signature.
The California probate court determined that the handwritten interlineations were not a valid amendment to the California trust as a matter of law. The Court ruled that interlineations in this case constituted a written instrument separate from the trust instrument. Because Anderson signed the Post-it Note, the Post-it Note being a separate writing," simply identifying the enclosed documents," and thus no signature was provided on the handwritten interlineations. Therefore, there was no effective amendment to the trust document.
See Can You Amend a Trust With a Post-It Note?, Probate Stars, April 10, 2020.