The First District Court of Appeal recently joined the widening chasm amongst California appellate courts concerning trust modification procedure. Probate Code section 15402 is seemingly straightforward, consisting of a lone sentence: “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.” As noted in prior posts, these 25 words have led to a robust split of appellate authority.
On the one hand, the Third District Court of Appeal, in Pena v. Dey (2019) 39 Cal.App.5th 546, and the Fifth District Court of Appeal, in King v. Lynch (2012) 139 Cal.App.4th 1186, have united under one banner. They have followed a restrictive approach, limiting amendment to the method set forth in the instrument, regardless of whether that method is explicitly exclusive. On the other hand, the Fourth District Court of Appeal, in Haggerty v. Thornton (2021) 68 Cal.App.5th 1003, stitched its own flag. It has followed a permissive approach, allowing amendment by the statutory method of section 15401(a)(2) unless the amendment procedure is explicitly exclusive.