Trusts and Estates

Trotter v. Van Dyck

Cite as D081916
Filed June 27, 2024
Fourth District, Div. One

By Michelle Barnett Batista
Aaron, Riechert, Carpol & Riffle, APC

Headnote:  Trust Amendment – Uniform Electronics Transaction Act – Testamentary Intent

Summary:  Email to estate planning attorney attaching estate planning questionnaire was insufficient to constitute a valid trust amendment.

Mary, the surviving trustor of a revocable family trust, exchanged emails with her son, Timothy, and her estate planning attorney about amending her trust.  In an email to Timothy, Mary expressed intent to disinherit her stepdaughter, Wendy.  Mary subsequently sent an email to her attorney attaching a partially completed estate planning questionnaire.  The questionnaire included a section titled “Dispository Plan,” with instructions to describe who should inherit her assets when she died, which Mary left blank.  In the section for listing children and grandchildren, Mary included Wendy, but commented, “NO CONTACT – WOULD PREFER TO DROP FROM WILL – IF POSSIBLE[.]”  Mary underwent surgery the next day and died shortly thereafter.  Following Mary’s death, Timothy petitioned the probate court for instructions on whether the emails from Mary constituted a valid trust amendment.  The probate court determined that Mary’s writings were insufficient to constitute an amendment to the trust. Timothy appealed.

The appellate court affirmed.  The trust authorized Mary to amend the trust by an instrument in writing signed by Mary and delivered to the trustee.  There was no signed document amending the trust and the electronic signature provision of the Uniform Electronics Transaction Act does not apply because a unilateral trust amendment does not constitute a “transaction” within the meaning of the statute.  Additionally, Mary’s writings did not adequately express an intent to amend the trust by the writings themselves.  Before discerning what a trustor intended by the specific language in a purported trust, it must first appear that the decedent intended to make a testamentary disposition by that particular paperand if this cannot be shown, it is immaterial that her testamentary intentions were in conformity with it.  When viewed as a whole, Mary’s writings appear to be correspondence between a client and her attorney about potential changes to the trust, with the expectation that her attorney would later formalize an amendment.

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