APPEAL from an order of the Superior Court of Tulare County. Lloyd L. Hicks, Judge. (Super. Ct. No. 45273)
The opinion of the court was delivered by: Levy, Acting P.J.
CERTIFIED FOR PUBLICATION
This is an appeal from an order granting a petition to determine the construction of a trust and the validity of certain trust amendments. We conclude that the trial court correctly construed the trust and found that the amendments to the trust were invalid. Accordingly, the order will be affirmed.
In July 2004, Zoel Night Lynch and Edna Mae Lynch, a married couple, created a revocable trust.*fn1 The trust designated the settlors, Zoel and Edna, as initial trustees of the trust. The trust provided that during the lifetime of the settlors, the income and principal of the trust would be used for the support of the settlors.
Article "FOURTH" of the trust concerned modification and revocation. That article provided, with omissions not pertinent to this appeal, the following:
"During the joint lifetimes of the Settlors, this Trust may be amended, in whole or in part, with respect to jointly owned property by an instrument in writing signed by both Settlors and delivered to the Trustee, and with respect to separately owned property by an instrument in writing signed by the Settlor who contributed that property to the Trust, delivered to the Trustee.
"During the joint lifetimes of the Settlors, this Trust may be revoked, in whole or in part, with respect to jointly owned property by an instrument in writing signed by either Settlor and delivered to the Trustee and the other Settlor, and with respect to separately owned property by an instrument in writing signed by the Settlor who contributed that property to the Trust, delivered to the Trustee....
"The first Settlor to die shall be called the 'Deceased Spouse' and the living Settlor shall be called the 'Surviving Spouse.' The Surviving Spouse shall have the powers to amend or revoke this Trust in whole or in part.... [¶] ... [¶]
"The powers of the Settlors to revoke or amend this instrument are personal to Settlors and shall not be exercisable in Settlors' behalf by any conservator, guardian or other fiduciary, except that revocation or amendment may be authorized, after notice to the Trustee, by the court that appointed the conservator, guardian or other fiduciary."
Zoel and Edna had five children, David Eric Lynch, Nancy Street, Mary Jo Tirman, Judith E. King, and Thomas Francis Lynch. Thomas predeceased his parents leaving two daughters surviving, Sandra Lynch and Susan Lynch.
The original trust provided that after the death of Zoel and Edna, Nancy, Mary, Judith, and David were each to receive a distribution of $100,000 from the trust, and Sandra and Susan were each to receive $50,000. The remainder of the trust was to be given to David. The trust established David as successor trustee upon the death of the last settlor.
In 2005 and 2006, Zoel and Edna executed three amendments to the trust. The net result of these amendments was to bequeath four parcels of real estate to David. Both of the settlors signed these amendments and their validity is not questioned in the present proceeding.
Later in 2006, Edna suffered a severe brain injury that left her incompetent to handle her own affairs, although it does not appear that she was adjudicated incompetent.
After Edna's injury, Zoel executed three further amendments to the trust, which are designated fourth, fifth, and sixth amendments. The fourth amendment modified the trustee designation, noting that Edna was no longer able to serve and appointed Zoel as sole trustee. The fifth amendment reduced all monetary bequests by half, so that the four children were allocated $50,000 each and Sandra and Susan were allocated $25,000 each. The sixth amendment further reduced the monetary bequests, allocating $10,000 each for the children and $5,000 each for Sandra ...