Sacramento Court: You Cannot Amend a Trust with a Post-It Note

Milla L. Lvovich - Estate Planning Attorney

Many people decide to make or amend their estate plan after learning they have a terminal illness.

Unfortunately, some are unable to complete the process before it is too late.In a recent decision, Pena v. Dey, the California Third District Court of Appeal confronted this situation. A Sacramento man, James Robert Anderson, attempted to amend his trust just before his death in May 2014. Anderson died after a four-year battle with cancer.  Anderson previously created a trust in 2004 and amended it in 2008. In March 2014, Anderson sent an estate planning attorney a copy of his trust with several handwritten notes. These “interlineations” indicated items that Anderson wished to alter in the trust. Together with these interlineations, Anderson attached a Post-It note. The note said, “Hi Scott, here they are. First one is 2004. Second is 2008. Enjoy! Best, Rob.”

Sadly, Anderson died before the attorney could incorporate the interlineations into a new trust amendment.

Anderson’s successor trustee then asked a Sacramento County probate court for instructions. The trustee maintained Anderson’s handwritten notes did not qualify as a “valid amendment to the trust.” The judge agreed. This prompted Grey Dey, Anderson’s longtime friend and caregiver, to appeal, Dey stood to benefit from Anderson’s attempted trust amendment. Before the Third District, he argued the delineations on the original trust should be treated as an amendment. Dey also maintained the Post-It note constituted a “signature” confirming Anderson’s intent to amend his trust.

The appeals court disagreed and upheld the probate court’s earlier ruling.

In a published decision, the Third District said “the undisputed evidence” showed Anderson’s notes provided his attorney guidance in preparing a trust amendment. The delineations were not, however, a valid trust amendment. Furthermore, the Post-It note was “a separate writing” from the delineations. It could not be reasonably construed as a signature amending the underlying trust.

San Francisco estate planning attorney Milla L. Lvovich said this case demonstrates why you should never wait to make a will or trust. “You never want to deal with your estate plan while lying on your deathbed. Even if you are not diagnosed with a terminal illness, a sudden accident can leave you unable to act. So if you are thinking about making a will or trust, it’s best to speak with a lawyer right away.”