A precedent-setting appellate decision regarding how revocable trusts may be modified was just affirmed by the Supreme Court of California in the case Haggarty v. Thornton. Based on the Supreme Court’s statutory interpretation, the Court’s decision ensures greater flexibility when validating trust amendments and reinforces a trustor’s ability to have their final wishes carried out successfully. Higgs Fletcher & Mack (HFM) Partner Roland Achtel argued the case before the Supreme Court in December of 2023.

In summary, this case is about a handwritten amendment decedent Mary Bertsch made to her trust. The amendment bequeathed millions of dollars to charity and various beneficiaries.  Ms. Bertsch did not notarize her handwritten amendment.  The language in the trust indicates that Ms. Bertsch reserved “the right by an acknowledged instrument in writing to revoke or amend” the trust.

After Ms. Bertsch passed away, a disinherited relative challenged the amendment claiming that because the amendment wasn’t notarized, it failed to comply with the trust terms and was therefore invalid.  At the appellate level there was a split of opinion on whether a trustor must strictly follow the trust terms to modify a trust, or whether the default rule should apply.  This case centered around whether Ms. Bertsch’s amendment should stand, or if it should be invalidated because it didn’t follow the technical procedure prescribed in the trust.

In support of the Court’s interpretation, Mr. Achtel argued that the intent of the law was to ensure greater flexibility. In particular, he argued that the purpose behind the law – to ensure a trustor’s wishes are carried out – was paramount, and that Ms. Bertsch’s handwritten amendment clearly communicated her intent.

By its ruling, justice was served in honoring Ms. Bertsch’s intent and to ensure flexibility in the future so that less than perfect amendments can be appropriately applied and respected. The Supreme Court opinion can be found here: https://bit.ly/3SR9fEp.