Trust BCLP

Trust BCLP

amendment to trust

Main Content

When The Power To Amend Doesn’t Actually Mean You Can Amend

October 20, 2016

Authors

Luke Lantta

When The Power To Amend Doesn’t Actually Mean You Can Amend

October 20, 2016

by: Luke Lantta

Circumstances, laws, and taxes all change.  And, when they do, many settlors don’t want their beneficiaries to have to go into court to get permission to roll with the changes.  That’s why you often find a trust provision that permits non-judicial amendments to the trust.  The breadth of these powers to amend differ from a narrow power to amend to a broad power to amend, like the one before the Maryland Court of Special Appeals in Grueff v. Vito.  There, the power to amend a family trust provided:

This Agreement may be revoked, altered or amended from time to time by an instrument in writing, signed by the holders of not less than seventy-five (75%) interest herein and delivered to the Trustee.

The beneficiaries used that amendment power a number of times over the years.

Read More

Power Of Attorney Amended Revocable Trust

April 1, 2015

Authors

Luke Lantta

Power Of Attorney Amended Revocable Trust

April 1, 2015

by: Luke Lantta

Georgia makes it easy to amend a trust if the settlor expressly reserves such a power: it needs to be in writing and signed by the settlor.  In Strange v. Towns, the Georgia Court of Appeals showed us how leniently courts should interpret that power to amend.

Pauline Strange created an inter vivos trust naming herself as the initial trustee and three people, including her son Tony, as successor trustees.  Years later, Pauline executed a “General Durable Financial Power of Attorney,” and in the power of attorney Pauline stated that she wanted Tony to be the “executor” of her estate and the trust.  Pauline and Tony both signed the power of attorney.

This was good enough to amend Pauline’s trust because she reserved the right to amend in

Read More

More Authority For Trust Decanting?

August 19, 2014

Authors

Luke Lantta

More Authority For Trust Decanting?

August 19, 2014

by: Luke Lantta

Does the settlor’s grant of a broader power to a trustee necessarily, by implication, include the grant of the lesser power?  Practitioners have often answered “yes” to this question when it comes to justify so-called ‘common law’ trust decanting.  So, for example, if the settlor gave the trustee the discretionary authority to distribute the entirety of the corpus without regard to any standard, the argument is that the grant of that broad power would necessarily include the lesser power to decant.

In a different context, in an unpublished opinion in Leonard v. Maher (2014 Mass. App. Unpub. LEXIS 885) (Rule 1:28 decision), the Appeals Court of Massachusetts used similar logic to conclude that where the settlors, trustees, grantors and beneficiaries of a trust are the same people, the power to Read More

To “Revoke And Replace” Or To “Amend” Prior Language In A Trust – Is There A Difference?

April 24, 2014

Authors

Luke Lantta

To “Revoke And Replace” Or To “Amend” Prior Language In A Trust – Is There A Difference?

April 24, 2014

by: Luke Lantta

Part of the challenge of trust and estate planning lawyers is trying to anticipate the ways in which the words in an instrument will be construed down the road.  And there’s no shortage of creativity on the part of those who try to construe these instruments a certain way.  Take for example a trust amendment.  If a grantor wants to unambiguously supplant prior language in his or her trust instrument, should the grantor merely “amend” the paragraph or should the grantor explicitly “revoke and replace” the paragraph?  Does it make a difference?

In In re The H & A Neumann Revocable Trust (unpublished), the Court of Appeals of Minnesota found that it didn’t make a difference – the language was supplanted.  A beneficiary of a trust claimed that when the grantors “amended”

Read More

Illinois Supreme Court Punts Question Of Whether Doctrine Of Election Extends To Challenges To Trust Amendments

May 2, 2013

Authors

Luke Lantta

Illinois Supreme Court Punts Question Of Whether Doctrine Of Election Extends To Challenges To Trust Amendments

May 2, 2013

by: Luke Lantta

In Estate of Boyar, the Supreme Court of Illinois had an opportunity to address an important question of Illinois trust law:  whether the “doctrine of election” applicable to will contests should be extended to challenges to amendments to living trusts in cases where the trust serves the same purpose as a will.  The trial court decided it did.  The Illinois appellate court also decided it did.  The Illinois Supreme Court, however, decided that there was no reason for the lower courts to address whether the doctrine of election should be extended to living trusts because that doctrine couldn’t be invoked under the circumstances present in the case.  Nevertheless, we get some good insight into when the doctrine of election could come into play in whatever contexts it might be applicable.

First, some quick facts.

Read More

Trust Could Not Be Revoked Or Amended Through Will

June 25, 2012

Authors

Luke Lantta

Trust Could Not Be Revoked Or Amended Through Will

June 25, 2012

by: Luke Lantta

Courts repeatedly remind us of the necessity to be very explicit with the language in our trust instruments.  With some very narrow exceptions, the clear, unambiguous language of the instrument controls.  This is sometimes referred to as being bound by the four corners of the instrument.

Our latest reminder of the need to remove all assumptions, ambiguity, or inconsistencies from estate planning documents comes to us from Ohio in WesBanco, Inc. v. Blair.  Here, we had the son of the decedent claiming that the decedent’s will revoked or amended his trust thereby eliminating the decedent’s allegedly estranged girlfriend as a beneficiary under the trust.  The son claimed that the decedent had reserved the right to amend or revoke the trust and he did so when he executed his will.

Seems that if the decedent and girlfriend had a falling out and

Read More

Newly Found Amendment To Trust Barred By Language In Trust Instrument

March 28, 2012

Authors

Luke Lantta

Newly Found Amendment To Trust Barred By Language In Trust Instrument

March 28, 2012

by: Luke Lantta

Here’s an interesting case out of Missouri last week in which the court of appeals determined that the trial court flat out got the reasoning for its decision wrong, but nevertheless reached the correct result.  In Banks v. Central Trust and Investment Co., a party alleged that he just “found” an amendment to a trust and asked the court to determine its validity.  The trial court dismissed the case on the basis of judicial estoppel.  The court of appeals determined that judicial estoppel didn’t apply, but the trial court was still correct in dismissing the case.  Let’s see why.

Read More
The attorneys of Bryan Cave Leighton Paisner make this site available to you only for the educational purposes of imparting general information and a general understanding of the law. This site does not offer specific legal advice. Your use of this site does not create an attorney-client relationship between you and Bryan Cave LLP or any of its attorneys. Do not use this site as a substitute for specific legal advice from a licensed attorney. Much of the information on this site is based upon preliminary discussions in the absence of definitive advice or policy statements and therefore may change as soon as more definitive advice is available. Please review our full disclaimer.