Trusts and Estates

Balistreri v. Balistreri

Cite as A162222
Filed February 24, 2022, First District, Div. Three

By Jaime B. Herren
Holland & Knight LLP

Headnote: Trust Amendment – Available Methods

Summary: Because the trust described a method of amendment that was the exclusive means of amendment available to the settlors, the trust amendment was invalid for failure to comply with that exclusive method.

Mary and Sal C. amended their revocable trust the day before Sal C. died.  The amendment was not notarized despite that the trust required any amendment, revocation or termination to be in writing, signed and acknowledged by a notary.  Mary sought to confirm validity of the amendment, arguing that it satisfied the available statutory method for trust modification.  Decedent’s son, Sal J., responded with a petition to invalidate the amendment on grounds the amendment failed to comply with the trust’s method for amendment.  The probate court concluded the amendment was invalid for lack of notarization.

The appellate court affirmed.  The trust’s method of modification was a manifestation of the settlors’ intent to be bound to that method, and statutory procedures for modification were not available to them.  When a trust specifies a method of modification, the designated method must be followed for an amendment to be effective.

Author’s Note: The appellate court expressly departed from the Fourth District case of Haggerty v. Thornton, which permitted the settlors to use the statutory method of modification.  On December 22, 2021, the California Supreme Court granted review of Haggerty v. Thornton, and the Case Alert for the appellate court decision can be found here.

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