Eric N. Mann and Kathryn Kaler of Neal Gerber Eisenberg discuss case law in New Hampshire and California on amending revocable trusts to ensure the grantor's last wishes are honored.
April 7, 2023 - Revocable trusts, also referred to as living trusts, can provide an efficient way to avoid probate, maximize the use of one's federal and state exemptions and provide asset protection for beneficiaries following the death of the trust creator, commonly referred to as the "grantor," if properly drafted, funded and administered.
During the grantor's lifetime, the grantor sent an email to his attorney requesting an amendment to his revocable trust and detailed the grantor's desired updates. The grantor's attorney responded to the grantor's email requesting clarification as to some of the changes.
The New Hampshire Supreme Court, rejecting the lower Court, held that applicable New Hampshire law provides that a grantor can revoke or amend a trust by two methods — by "substantial compliance with a method provided in the terms of the trust" or by "any other method manifesting clear and convincing evidence of the settlor's intent if the terms of the trust do not provide a method or do not expressly prohibit methods other than methods provided in the terms of the trust.
The method of amending a revocable trust has also been recently reviewed by California Appellate Courts, resulting in a split among the courts.Section 15402 of the California Probate Code governs the modification of revocable trusts and provides that unless the trust agreement provides otherwise, a grantor may amend his or her revocable trust "by the procedure for revocation."
On the other hand, the Fourth District has held that a trust may be amended by the statutory method for revocation unless the amendment procedure set forth in the trust agreement is expressly exclusive. See Haggerty v. Thornton, 68 Cal. App. 5th 1003 .
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