California Court of Appeals, Third District, Sacramento
from a judgment of the Superior Court of Sacramento County
No. 34201500178593, Steven M. Gevercer, Judge. Affirmed.
Office of Dewey V. Harpainter, Dewey V. Harpainter and Nathan
R. Harpainter for Defendant and Appellant.
Ricky Maveety for Petitioner and Respondent.
case, we must determine whether James Robert Anderson,
settlor and trustee of the James Robert Anderson Revocable
Trust (the trust), validly amended the trust when he made
handwritten interlineations to one of the operative trust
documents, specifically the First Amendment to the trust
(First Amendment), making Grey Dey a beneficiary. After
making the interlineations, Anderson sent both the original
trust instrument and the interlineated First Amendment to his
attorney to have the new disposition of his trust estate
formalized in a second amendment to the trust. Anderson died
before the formal amendment was prepared for his signature.
Pena, successor trustee, petitioned the trial court for
instructions as to the validity of the interlineations. She
thereafter moved for summary judgment, asserting the
interlineations did not amount to a valid amendment to the
trust as a matter of law. The trial court granted the motion
and entered judgment in Pena's favor. Dey appeals.
conclude the interlineations did not validly amend the trust
because the trust specifically requires amendments “be
made by written instrument signed by the settlor and
delivered to the trustee.” (Italics added.) While the
law considers the interlineations a separate written
instrument, and while there can be no doubt Anderson
delivered them to himself as trustee, he did not sign them.
Instead, he sent them to his attorney to have them formalized
into a second amendment to the trust and prepared for his
signature, evidencing his intent to sign the changes to his
trust at a later date. We also reject Dey's argument that
Anderson effectively signed the interlineations by attaching
a Post-it® note to the documents he sent to his attorney,
on which he stated: “Hi Scott, [¶] Here they are.
First one is 2004. Second is 2008. Enjoy! Best, Rob.”
We cannot conclude these lines on the note were part of the
written instrument comprised of the interlineations to the
First Amendment to the trust such that the signature on the
note effectively signed the interlineations. Instead,
Anderson signed a separate note indicating what the enclosed
documents were. While there is no dispute in this case that
Anderson intended Dey to receive a portion of his trust
estate, there is also no genuine dispute that Anderson
intended to sign this and other changes to his trust when
formalized by his attorney. Unfortunately, he died before
that could be accomplished. We must therefore affirm the
summary judgment entered in this case.
2004, Anderson executed the trust at issue in this appeal. He
was designated both settlor and trustee. Paragraph 3.1 of the
trust provides: “Power of Revocation and
Amendment. This trust may be amended, revoked, or
terminated by the settlor, in whole or in part, at any time
during his lifetime. After the settlor's death, this
trust shall be irrevocable and not subject to
amendment.” Paragraph 3.2 provides: “Method
of Revocation or Amendment. Any amendment, revocation,
or termination of this trust shall be made by written
instrument signed by the settlor and delivered to the
trustee. An exercise of the power of amendment substantially
affecting the duties, rights, and liabilities of the trustee
shall be effective only if agreed to by the trustee in
2008, Anderson executed the First Amendment to the trust in
compliance with the foregoing method of amendment. We need
not set forth the contents of this amendment in any detail.
It will suffice to note the amendment added paragraph 5.5,
dividing the remainder of the trust estate into shares of
various percentages for 15 named beneficiaries.
was diagnosed with abdominal cancer in 2010. While he
recovered from that bout with the disease, he was diagnosed
with brain cancer the following year. Dey moved in with
Anderson in November 2011 and cared for him until his death
in May 2014. Dey and Anderson had been friends since 2006.
Anderson, a successful artist and art teacher, was also
Dey's mentor in the art world. The two became close
during 2010 and throughout Anderson's battle with cancer.
February 2014, Anderson called an attorney, Michael S.
Shuttleworth, who had represented Anderson in another matter,
seeking his assistance in making changes to his estate
planning documents. Because Shuttleworth was not the attorney
who drafted the 2004 trust instrument or the 2008 First
Amendment, he asked Anderson to send copies of these
documents to his office and “put in writing the
proposed changes he was considering.”
this time, Anderson made the interlineations at issue in this
appeal. Eleven of the fifteen shares provided for in
paragraph 5.5 of the First Amendment were crossed out. The
first 4 shares remained, but these beneficiaries'
respective percentages of the remainder (49 percent) of the
trust estate were changed to 7 percent. Dey and two other
individuals were listed in the margin as also receiving
“7% of 49%, ” i.e., 7 percent of the remainder of
the trust estate. Also in the margin, Anderson wrote,
“51% to 3 organizations ~ See beneficiary list.”
received the trust instrument and interlineated First
Amendment to the trust in March 2014. As mentioned, attached
to these documents was a Post-it® note, on which Anderson
wrote: “Hi Scott, [¶] Here they are. First one is
2004. Second is 2008. Enjoy! Best, Rob.” An initial
draft of a second amendment to the trust was prepared by
Shuttleworth's staff. However, Shuttleworth's review
of that draft caused him to call Anderson the following month