MCLE SELF-STUDY ARTICLE COURTS DO NOT AGREE ON THE HISTORY AND MEANING OF CALIFORNIA PROBATE CODE SECTION 15402
Written by Jennifer L. Campbell, Esq.*
Amending revocable trust instruments is a daily occurrence for most lawyers focusing their practices on trusts and estates. So common and so expected are such trust amendments, lawyers routinely include provisions in revocable trust instruments that state the procedure by which those trust instruments may be amended. Usually, the amendment procedure stated in the trust instrument is followed. Disputes about the validity of those trust amendments usually do not include controversy over the procedure by which the trust amendments are made. Accordingly, the procedure by which a revocable trust instrument is amended appears to be, for many, almost laughably easy and not meritorious of discussion.
However, trust amendments do not always comply with the amendment procedure set forth in the trust instrument. When a trust amendment fails to comply with the amendment procedure set forth in the trust instrument ("nonconforming trust amendment"), the nonconforming trust amendment is open to challenge as being invalid for that failure. In adjudicating a challenge made to the validity of a nonconforming trust amendment, the courts look to California Probate Code section 15402,1 which sets forth the procedure for determining whether a trust instrument’s stated amendment procedure is effectively the exclusive procedure for amending the trust instrument. Courts have considered this issue in several cases. As discussed below, a split has developed in the Court of Appeal as to the correct interpretation of section 15402, and the California Supreme Court is now considering this issue. A brief review of sections 15402 and 15401 is helpful in understanding these cases.