Trust Amendments After the Conflicting Decisions of King v. Lynch and Haggerty v. Thornton

Amending revocable trusts is such a common occurrence for estate planners that the procedure for doing so may be given little thought. Most trust instruments include provisions establishing the procedures for amendment, but what if those procedures are not followed? Should the amendment be held invalid?

Two appellate court decisions, King v Lynch and Haggerty v. Thornton take up the question. The courts interpret Probate Code Sections 15402 and 15401(a)(2) differently, and as a result reach inconsistent conclusions. At issue is under what circumstances the so called “statutory method” of revocation of 15401(a)(2) may apply to trust amendments.

Guest Jennifer Campbell is Senior Counsel, Trusts and Estates at Loeb & Loeb, and has recently authored an article for the Trusts and Estates Quarterly (Volume 28, Issue 2, Spring 2022) entitled “Courts Do Not Agree on the History and Meaning of California Probate Code Section 15402”. For over 30 years, Ms. Campbell has concentrated her practice in the trusts and estates area, focusing on the administration of trusts and estates and estate planning.  Ms. Campbell routinely advises and assists individuals and corporate fiduciaries with a myriad of matters including constructing estate plans, fiduciary legal risk management, trust funding, trust distributions, preparing estate and gift tax returns, and negotiating and drafting settlement agreements.  

Guest Howard Kipnis is of Counsel at the firm of Artiano Shinoff  and has over 38 years of experience representing corporate fiduciaries, financial institutions, broker-dealers and brokerage companies, as well as small businesses and individuals, in dispute resolution and litigation arising from banking, brokerage and probate and trust services. For 22 years Mr. Kipnis has received Martindale-Hubbell’s highest peer-reviewed rating for professional excellence (“A-V Preeminent”). and professional achievement (“Distinguished”). In the last four years he has also been honored as one of San Diego Magazine’s “Top Lawyers” in both Banking and Probate and Trust Litigation, and selected by “San Diego Super Lawyers” in those fields as well. Mr. Kipnis now serves on the Trust and Estates Executive Committee of the California Lawyers Association (TEXCOM), where he currently chairs or vice chairs several of TEXCOM’s Subcommittees, including Litigation and Educating Seniors. 

Jennifer and Howard are presenters on a California Lawyers Association webinar entitled “Will King Still be King After Haggerty: Is the Procedure for Revocation of a Trust Available for Modification?” https://calawyers.org/event/webinar-will-king-still-be-king-after-haggerty-is-the-procedure-for-revocation-of-a-trust-available-for-modification/ 

Herb Stroh is of Counsel at McCormick Barstow LLP, based in the San Luis Obispo office. Herb is a past Chair of the Trusts and Estates Section of the California Lawyers Association (TEXCOM), and serves as TEXCOM’s representative on the CLA Board.

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Trust Me is Produced by Foley Marra Studios
Edited by Todd Gajdusek and Cat Hammons