In a recent California Court of Appeal case, a beneficiary, the individual for whom a trust is created, attempted to have a signed Post-it note attached to handwritten interlineations on a trust deemed sufficient to amend the trust.  While the Court acknowledged that a signed Post-it note may be sufficient in some situations, the note did not meet the modification procedures required by the trust at issue. In other words, a signed Post-it note may be sufficient sometimes – but not here.

The facts before the Court in Pena v. Day (2019) 38 Cal.App.5th 546, were largely undisputed.  In 2004, James Robert Anderson created a revocable trust (Trust). In 2008, Anderson amended the Trust (First Amendment).  In 2010, Anderson was diagnosed with cancer, and in 2011, his friend Grey Dey moved in to help care for him. In 2014, Anderson made handwritten interlineations to his Trust, including adding Dey as a beneficiary. Anderson sent the interlineated document to his attorney along with a Post-it note, on which Anderson wrote:

“Hi Scott,

Here they are. First one is 2004, Second is 2008. Enjoy!



Anderson died before he signed the amendment to the Trust.

The successor trustee, Margaret Pena, petitioned the trial court for instructions as to whether the interlineations constituted a valid amendment to the Trust. The trial court found that, as a matter of law, the interlineations themselves were insufficient to amend the Trust. Dey appealed.

The Court of Appeal upheld the trial court’s ruling. The Court found that where a trust instrument directs how a trust must be amended, that method must be strictly followed. This finding was not new, however, never before had a Court so strictly applied a trust’s modification procedures – especially where there was little doubt regarding the settlor’s intent. 

In reaching its decision, the Court recognized that the Trust required modifications to be:

(1) made by written instrument;

(2) signed by the settlor; and

(3) delivered to the trustee.

Although the Court found that the handwritten interlineations constituted a “written instrument”, that was “delivered to [the trustee] Anderson”, it held that the interlineated document lacked a signature.  The Court simply could not conclude that signature on the Post-it note constituted a signature on the document containing the interlineations. 

Notably, the Court did not dismiss the possibility that a signed Post-it note could constitute the required signature. Indeed, had Anderson had indicated that he intended the Post-it note and attached documents to constitute the Second Amendment to the Trust, then the Post-it note might have been sufficient.

Thus, there are several important points to remember when you amend your trust.  The formality requirements in trusts are intended to assist the courts to discern a settlor’s true intent. To wit, the fine print does matter. Do it yourself amendments, and/or attempting to rush amendments at the last minute before a settlor dies, only increases the risk that the settlor’s intent will not be effectuated. 

At Webb Law Group, we see trust property disputes resolve in two ways: 1) Preventative measures; 2) Proactive steps. Most trust property disputes can be avoided if the involved parties are able to clearly and intelligibly communicate their desires and their understanding of the agreement. This can also be considered a transactional approach. When preventative measures are no longer an available option, litigation – or at least the threat of litigation – is the next step where our firm steps in to resolve issues. Contact our estate lawyers today to learn more.