Christopher Miles Kolkey, of Downey Brand LLP, has made available for download his article, “Trust Modification/Amendment Procedure Now Unsettled in California,” published in JDSUPRA. Thea article begins as follows:
The Legislature and courts endeavor to create well-defined laws, lest we devolve into the governance of Emperor Nero, who reputedly posted edicts high atop columns so as to be painfully difficult for the masses to read. As Nero surely knew, clarity in the law is critical for people to know how to act, especially when far-reaching consequences are at play. But despite our government’s best intentions to post edicts in clear print and at eye-level, ambiguities in the law often emerge when statutes are scrutinized. As this post demonstrates, the statute concerning trust modification/amendment is no exception.
In Haggerty v. Thornton (2021) __ Cal.App.5th __, the Fourth District Court of Appeal challenged the Fifth District Court of Appeal’s opinion in King v. Lynch (2012) 139 Cal.App.4th 1186 over the contours of Probate Code section 15402, which concerns a settlor’s right to modify or amend a trust. Haggerty’s rejection of the rule of law established in King creates a split of authority. This game of thrones amongst the appellate “kingdoms” eventually may find its way to “Kings Landing,” i.e., the California Supreme Court.
Posted by Bennett Mansour, Associate Editor, Wealth Strategies Journal.