Trusts and Estates

Ca. Trs. & Estates Quarterly 2022, Volume 28, Issue 2


Written by Kristen E. Caverly, Esq.*

As I write this in early Spring, I have attended an in-person national conference for the American Trust & Estate Council in San Diego, an in-person TEXCOM meeting in Sacramento, my daughter’s school play, a local networking event and two charity events. I also have gone back to court—and not just for jury duty, though I did that this quarter also. I have seen several friends and colleagues that I have not seen in two years—and, wow, how tall your kids have gotten. What a difference a year has made. I hope you also are getting back engaged with friends and colleagues to do things that are important to you. And, if you are a court practitioner, I hope you will go back to court in person at least sometimes. I was reminded recently after talking to opposing counsel before AND after our hearing how much can get done with a five-minute hallway conversation compared with 10 emails over a week. I love that remote appearances are routine so we can easily practice anywhere in the State and from anywhere in the world, but seeing and speaking to people in person also is an important part of what we do and a part I have missed. By the time you read this, perhaps COVID will be relegated to a virtual endnote.

Our first article relates to trust amendments under Section 15402 and is very timely in light of the Supreme Court’s grant of review of Haggerty v. Thornton (2019) 68 Cal.App.5th 1003, and the more recent case of Balisteri v. Balisteri (2022) 75 Cal.App.5th 511, which is discussed in this edition of the Litigation Alert. Should the methods of amendment and/or revocation stated in the trust be exclusive whether or not the trust instrument says they are exclusive? Should methods for modifying trusts be more restrictive than methods permitted to revoke a trust? What power should the courts have to determine trustor intent in the context of modification and/or revocation? These are important questions, and TEXCOM also has been actively involved in this discussion by proposing an amendment to Probate Code section 15401 and repeal of Probate Code section 15402 to harmonize methods of revocation and modification of trusts. My client is the neutral, professional fiduciary in Haggerty waiting to learn which trust terms to administer. And, for all trusts and estates practitioners, it will be interesting to learn the Supreme Court’s decision in Haggerty and Balisteri and to see whether the Legislature acts in response.

Moving beyond Barefoot, our second article in this edition examines standing in variety of probate, elder abuse, and conservatorship contexts. Standing in California, unlike some states, is jurisdictional. Standing is required at inception of litigation and throughout the proceedings. In most probate court contexts standing is conferred by statute and can be as broad as "friends." The standing article as well as the trust modification article provide an opportunity for self-study CLE credit. I appreciate the many volunteers at TEXCOM who create the questions and answer guides for our self-study articles. TEXCOM is committed to providing

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