[WSBAPT] trust amendment

Fri Jul 31 09:21:16 PDT 2015

I’ve been scratching my head over the same issue.  I looked at the case law dealing with wills, and found a dubious distinction between revocation (which can be done in almost any manner) and a bequest (which must be done with the formalities of a will), which becomes an almost unworkable doctrine as soon as you recognize that the revocation of someone’s bequest necessarily increases someone else’s (cf Malloy, 134 Wa2nd 316 (1998).  But now I’m thinking that between  RCW 11.103.030(3)(a) and language in the trust almost identical to that which Marilyn is dealing with, I’m probably barking up the wrong tree entirely. Anyone think that case law has any relevance at all to a RLT?

So to Sam’s analysis, I don’t think RLT-as-a-will-substitute gets us very far at all.  On the other hand I think his analysis of the statutes and trust language is right on and that alterations on the face of the trust document are enforceable, at least to the extent there is no dispute that the alterations were made by the trustor.

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THOMAS M. CULBERTSON  I  Lukins & Annis, PS
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From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Paul H. Grant
Sent: Thursday, July 30, 2015 6:50 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] trust amendment

I don't disagree with you Sam, looking only at the statute it requires the trust to be followed and if the trust is silent as to revocation or amendment then it is treated as a codicil.  As with every case, who is complaining and who will challenge if the trustee adheres to the changes.  Maybe all the beneficiaries want the changes.

I was (simplistically) only pointing the question to what I thought was the applicable statute with an uninformed opinion to boot.

Sent from my iPhone ~ Paul H. Grant

On Jul 30, 2015, at 12:55 PM, Sam Furgason <sam at furgasons.com<mailto:sam at furgasons.com>> wrote:
Paul,

I wouldn’t be too sure about the unenforceability. Living trusts have been looked at as will substitutes, so some of the doctrines of will interpretation might apply. I think the trustor, who was also the trustee at the time, has complied with the trust’s requirement of delivery to the trustee since s/he is the trustee, and with the requirement for writing by amending the trust on its face. S/he should not be required to agree with herself/himself by written acceptance; a court could be guided by the oft-repeated maxim, now set out in RCW 11.12.230, that the decedent’s intent should be honored. The modification of the trust could be considered “substantial compliance with a method provided in the terms of the trust” (RCW 11.103.030(3)(a). Analogously, Washington courts have held that minor strike-outs on wills do not amount to revocation of the will, and should be considered partial revocations only, with the rest of the instrument being enforceable. I think I’d want some court guidance on this, or at least written agreement by all affected parties, before carrying out distributions.

My thoughts.

Samuel L. Furgason
Samuel L. Furgason, Inc, PS
(Not accepting new business)
10655 N.E. 4th Street, Suite 701
Bellevue, Washington 98004
MAIL TO:
PO Box 102
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Email: sam at furgasons.com<mailto:sam at furgasons.com>

From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Paul Grant
Sent: Thursday, July 30, 2015 10:43 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] trust amendment

see rcw 11.103.030 -  in essence the trust rules the day.  Notes on the trust are not amendments unless the trust specifies they are accepted.  With the information provided I would say the notes are unenforceable.

Paul H. Grant - JD, LL.M

Planning with Purpose, Inc
Lynnwood, WA 98036
425-939-9948
www.planningwithpurposeinc.com<http://www.planningwithpurposeinc.com>

Estate Planning. Business Planning. Wealth Succession.

On Wed, Jul 29, 2015 at 12:34 PM, Marilyn J Kliman <marilyn at marilynjklimanlaw.com<mailto:marilyn at marilynjklimanlaw.com>> wrote:
Listmates –

Client is Trustee of decedent’s RLT.

Trust document states that settlor “…may at any time …amend any of the terms of this trust by a written document delivered to the trustee.” Decedent (as settlor/trustee) made multiple handwritten edits on the trust document over the years. There are no dates, signatures or notarization, none of which, obviously, are required by terms of the trust.

My question is, are these unenforceable amendments, or valid if proven to be in decedent’s handwriting?

(Apologies to folks on both listserves)

Thank you,
Marilyn

Marilyn J. Kliman, Attorney at Law
Marilyn J. Kliman Law, PLLC
510 Bell Street
Edmonds, WA 98020
206.499.0993<tel:206.499.0993>
Marilyn at MarilynJKlimanLaw.com<mailto:Marilyn at MarilynJKlimanLaw.com>
www.MarilynJKlimanLaw.com<http://www.marilynjklimanlaw.com/>

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