MCLE SELF-STUDY ARTICLE: HOW THE KING (V. LYNCH CASE) WAS SLAYED: THE CALIFORNIA SUPREME COURT CLARIFIES HOW A REVOCABLE TRUST MAY BE MODIFIED

Written by Howard A. Kipnis, Esq.* and Steven J. Barnes, Esq.*

I. SYNOPSIS

When a revocable trust contains a provision specifying how it may be modified, must that method be followed in order to amend the trust? For over a decade, the prevailing view, based upon the 2012 Fifth District Court of Appeal opinion in King v. Lynch⁰¹ ("King"), was "Yes!" All but settling the issue, since King was decided, four other appellate courts weighed in with published decisions, and all but one followed King. Still, the issue divided estate planners and litigators, and was hotly debated by commentators and legal scholars, most of whom agreed with King and its progeny. Turns out those courts and commentators were wrong.

The Supreme Court in Haggerty v. Thornton⁰² ("Haggerty") unanimously held that even where a revocable trust specifies a particular method of modification, it may also be modified by the available procedures for revocation, unless the trust expressly restricts the method of modification. Haggerty involved a challenge to the validity of a trust amendment brought following the settlor’s death based solely on the grounds that the settlor failed to comply with the trust provision governing how the trust could be amended. By its decision, the court finally resolved the conflict that had continued to rage over the meaning of the language that was at the heart of the controversy set forth in Probate Code section 15402, the statute governing how revocable trusts can be amended. Section 15402 provides that the procedures available for revoking a trust may also be used to modify it "unless the trust instrument provides otherwise."⁰³