Trusts and Estates

Pena v. Dey

Cite as C083266
Filed August 30, 2019, Third District

By Matthew R. Owens
Withers Bergman LLP

Headnote: Trusts – Method of Amendment 

Summary: Where the trust expressly required that amendments be made by a signed writing, handwritten interlineations on a trust instrument did not constitute a valid amendment because they were not signed.   

Anderson created a revocable trust and amended it to name 15 different beneficiaries.  Anderson later decided to amend his trust for a second time to reduce the number of beneficiaries and modify their respective percentages under the trust.  He made handwritten interlineations to the first amendment, naming his friend Dey and others as beneficiaries.  He then mailed to his attorney the original trust, the first amendment with the handwritten interlineations, and a Post-it® note asking his attorney to formalize his notes into a second amendment for his signature.  Anderson then died without signing the second amendment.  Pena, the trustee, sought instructions from the court confirming the handwritten interlineations did not constitute a valid amendment.  The court granted summary judgment in Pena’s favor and Dey appealed.    

The court of appeal affirmed.  Although it was clear Anderson intended to amend the trust, it was also clear he never actually signed a writing in compliance with the trust’s terms to effectuate his intent.  The trust required that amendments “be made by written instrument signed by the settlor and delivered to the trustee.”  The interlineations did constitute a writing separate and apart from the printed trust instrument itself, as required.  And because Anderson was also the trustee he also effected delivery.  However, the document was not signed.  The interlineations therefore did not comply with the trust’s express requirement that amendments be signed.  Nor can the Post-it® note Anderson attached to the documents he sent his attorney be deemed a part of the written instrument such that Anderson’s signature on the note effectively signed the interlineations.  That Post-it® note was a separate writing that simply identified the enclosed documents.

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