One of the most obvious features of a revocable living Trust is that you can revoke it.  It’s right there in the name “revocable Trust.”  But you can also amend a revocable Trust because, for a long time, California courts have interpreted the power to revoke (which means to entirely do away with a Trust) as including the lesser power to also amend the Trust.  Sounds reasonable enough.

But that has now changed with the California Court of Appeal’s, Fifth District, ruling in King v. Lynch, which holds that the power to revoke may be different from the power to amend—at least in the way in which each is accomplished.

Prior to 1987, there was no statute that provided the manner in which a Trust revocation could be accomplished.  With the adoption of Probate Code Section 15401, that changed, and the law provided two distinct ways in which to revoke a California Trust: (1) revoke using the manner provided in the Trust instrument, or (2) revoke by any writing (other than a Will) signed by the Settlor and delivered to the trustee during the Settlor’s lifetime.  So if the Trust stated that a revocation required a writing signed and notarized by the Settlor, then you could follow that directive to revoke the Trust.  But you could also simply follow number 2 above and revoke by any writing (other than a Will).  In other words, either manner was available for revocation as long as the Trust did not expressly say that its manner was the exclusive way in which to revoke. 

And it was thought for quite some time that the same rules applied to amending a Trust because under Probate Code Section 15402, it said that the method of amendment is the same and the method of revocation contained in Section 15401.  So you could use the Trust terms to amend, or you could amend by any writing (other than a Will).  Each method was available for amendments as long as the Trust did not expressly say that its method was the only way in which to amend.

But now, Justice Levy has, for the first time, decided that amendment and revocations are not so similar after all.  He holds, under Section 15402 (the amendment language) that a Trust can ONLY be amended by the method specific in the Trust and NOT by any language in Section 15401 that allows any writing other than a Will.  He reaches this decision by quoting the following language of Section 15402:

“unless the trust instrument provides otherwise, if a trust is revocable by the settlor, the settlor may modify the trust by the procedure for revocation.”

He reasons that the term “unless the trust instrument provides otherwise” means that any Trust that has an amendment method stated in the Trust instrument does “provide otherwise” and therefore the statutory language for revocation under Section 15401 cannot be used for Trust amendments.

It seems like an odd ruling because there is no logical reason why the method of revocation should be any different from the methods available for amendments. 

Whatever may be in the Court’s mind, we now have a ruling that says the methods available to amend a Trust are different from the methods available to revoke.  Something good to keep in mind when amending a Trust…or when contesting an amendment to a Trust…food for thought.

  • The King v. Lynch opinion does not in substance create any material distinction between methods of revocation and modification. King simply clarifies that UNLESS THE TRUST PROVIDES OTHERWISE, modification, just as revocation, may not be accomplished pursuant to the statutory method. If a trust revocation provision specifies that the revocation requires a notarized signature of the Trustor that is signed off by the Trustor’s attorney who drafted the trust, with delivery of revocation instrument to the “successor trustee” that method must be used and the statutory method stated in 15401(a)(2) cannot be used. It seems misleading for you to suggest with your analysis that King v. Lynch somehow provides that a Trustor can “revoke” his trust contrary to the expressly explicit terms stated in the trust document. Probate Code Section 15401(a)(1) is not stated as an “alternative” method to 15401(a)(2). If the trust is revoked pursuant to subdiv (a)(1), you simply cannot invoke use of subdiv (a)(2). If otherwise, then 15401(a)(1) has no meaning. I have been involved in over two years of litigation because of the mischaracterization of the Huscher opinion discussed in Masry v. Masry. King v. Lynch brought a much needed clarification to the language “UNLESS THE TRUST PROVIDES OTHERWISE.”

  • Great comments, thank you for your input. I would have to disagree with you as to the Masry opinion, however. Under Masry there is, at least for now, two ways to revoke every Trust unless the Trust expressly says otherwise. It does not make much sense, because if a Trust provide a manner of revocation then that stated way should trump anything in the Probate Code. But Masry is with us for now. Until that changes, the two ways remain possible.

  • Frances Diaz

    When a trust instrument specifically provides for a method of revocation that requires certain conditions to be met, then 15401(a)(2) is simply NOT APPLICABLE. Masry relied upon 15401(b). King v. Lynch exposes the erroneous analysis in Masry with Masry’s reliance upon Huscher, now disapproved. It cannot be both ways — either there is a specific method or revocation is general ( as in Masry) permitting statutory default.

  • And there is nothing in the statutory language of 15401(b) that would suggest that a trust has to say its method of revocation is the “ONLY” method of revocation. Just having a way to revoke in a Trust document should make that way the exclusion method of revocation.

  • Frances Diaz

    Thank you, Mr. Davidson. Precisely my point. When a trust states a specific way to revoke the Trust, that express and specific method is now indisputably tantamount to being deemed the EXCLUSIVE method. Masry has erroneously interpreted Huscher by suggesting that the Huscher opinion somehow “disapproved” the clear statement of law in the cases of Conservatorship of Irvine and HIbernia Bank — indeed, the trial court is empowered to draw a legal conclusion that the stated method is the “EXCLUSIVE” method, notwithstanding the fact that the actual word, “exclusive” was not used in describing the method of revocation. It is unfortunate to find how the Masry case can cause so much protracted litigation all because some attorneys will argue that absent the use of the actual word, “exclusive,” then section (a)(2) of 15401 may be used. Appreciate your concurrence with my thoughts.