Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.

Help support the publication of case reports on MoreLaw

Date: 06-30-2020

Case Style:

Robert Cundall v. Vanessa Mitchell-Clyde, Individually and as Successor Trustee, etc.

Case Number: B293952

Judge: Lui, P.J.

Court: California Court of Appeals Second Appellate District, Division Two on appeal from the Superior Court, County of Los Angeles

Plaintiff's Attorney: Joseph S. Klapach

Defendant's Attorney: Richard D. Williams and Mina Hakakian

Description: Robert Cundall, the beneficiary of a living trust established
by John W. Martin on February 11, 2009 (the February Trust),
appeals from an order finding that the trust was properly
revoked and is therefore invalid. Martin revoked the February
Trust just a few months after he signed it after he had a falling
out with Cundall. He established a new trust in May 2009 (the
May Trust) with a new beneficiary.1
In revoking the February Trust, Martin did not follow the
revocation method specified in the trust document, which
required a signature by Martin’s attorney, Frances Diaz, on the
revocation document. Rather, with the assistance of a new estate
planning lawyer, Martin revoked the February Trust using the
statutory revocation method established by Probate Code section
15401, subdivision (a)(2).2 That method simply requires that the
settlor of a trust sign a revocation and deliver it to the trustee
(who, in this case, was Martin himself).
Cundall claims that the statutory revocation procedure was
not available to Martin. First, Cundall asserts that section 15401
does not apply to the February Trust because section 15401
establishes only an alternative method for revoking a trust and
cannot circumvent a trust provision specifying who has the
1 Just prior to the scheduled oral argument, the parties
informed the court that the matter had settled. Despite a
settlement, we have the discretion to decide the merits of an
appeal that raises an issue of continuing public interest that is
likely to recur. (People v. Eubanks (1996) 14 Cal.4th 580, 584,
fn. 2; Bushell v. JP Morgan Chase Bank, N.A. (2013) 220
Cal.App.4th 915, 919, fn. 1.) We exercise that discretion here.
2 Subsequent undesignated statutory references are to the
Probate Code.
authority to do so. Cundall argues that, by requiring Diaz’s
signature on the revocation document, the February Trust
delegated authority to her as a “trust protector” to approve any
revocation. Second, Cundall argues that, even if the statutory
revocation method is theoretically available when a trust
specifies who must approve a revocation, the February Trust falls
within an exclusion for trusts that “explicitly” make the trust
revocation procedure “the exclusive method of revocation.”
(§ 15401, subd. (a)(2).)
Cundall’s arguments call upon us to interpret section 15401
and apply it to the February Trust. In deciding this issue of law,
our path is partially paved by the opinion of Division Six of this
appellate district in Masry v. Masry (2008) 166 Cal.App.4th 738
(Masry).) In that case, the court held that a trust revocation
procedure is not exclusive unless the trust document explicitly
says that it is. We agree with this holding, which is consistent
with both the language and the history of section 15401. The
February Trust did not state that its revocation procedure was
exclusive, and the alternative revocation procedure under section
15401 was therefore available to Martin.
We also reject Cundall’s argument that section 15401
applies only to the method of revoking a trust and not the persons
who may do so. The distinction between method and authority is
artificial; a “method” can include the persons with authority to
accomplish a task. And section 15401 in fact addresses who may
revoke a trust.
We therefore affirm the trial court’s order.
1. The February Trust3
Martin, Cundall, and Diaz were all neighbors in West
Hollywood. Martin owned a residence. Cundall owned a
residence and some rental units. Diaz is a lawyer.
Cundall and Martin met in the neighborhood in 2007 and
became friends. About a year later, Cundall saw the inside of
Martin’s house for the first time when he and Diaz fed Martin’s
cats. It was cluttered and unsafe. Cundall and Martin agreed
that Martin would move into one of Cundall’s rental units while
Cundall remodeled Martin’s house.
Cundall proceeded with the remodel. The original estimate
for the work was $81,000; it ended up costing $219,000.
While the remodel was underway, Martin engaged Diaz to
take over managing his finances and to prepare an estate plan.
Diaz prepared the February Trust, which Martin executed.
The February Trust named Martin as the trustee. Cundall
was both the sole beneficiary and the successor trustee.
Section VIII of the February Trust addressed revocation
and amendment. The section stated in full: “During the
Grantor’s lifetime, the Grantor may revoke at any time, and/or
the Grantor may amend, this Agreement by delivering to the
Trustee and the Successor Trustee an appropriate written
revocation or amendment, signed by the Grantor and his
attorney, Frances L. Diaz. The powers of amendment may be
exercised by a duly appointed and acting attorney-in-fact for the
3 The relevant facts are not disputed. We therefore only
briefly summarize the factual background based on the trial
court’s statement of decision.
Grantor for the purpose of withdrawing and/or distributing assets
from the Trust.”
2. Revocation of the February Trust and
Execution of the May Trust
Five months into the remodel, for reasons that were
unclear at trial, Martin “decided that he wanted to regain control
of his finances and his property.”4
Martin rehired his former bookkeeper, Carole Oster, to
handle his finances. Martin also obtained a referral for a new
estate planning lawyer, Paul Kanin.
Martin met with Kanin in March 2009. Martin told Kanin
that he thought Cundall and Diaz had stolen from him and
instructed Kanin not to speak with Diaz. Kanin thought that
Martin was lucid and rational and agreed to prepare a new estate
plan for him.
Martin prepared new estate planning documents, including
documents establishing the May Trust and a revocation of the
February Trust. The May Trust designated as beneficiaries
respondent Mitchell-Clyde (Clyde), a friend of Martin’s since the
1950’s, and another friend, Ronald Preissman.5 Preissman was
the successor trustee.
The revocation document stated in full that “[t]he
undersigned, John W. Martin, as Grantor and Trustee, hereby
4 As the trial court explained, “Whether he was upset at the
escalating costs, whether his relationship with Cundall was
strained, whether he did not like the remodel—it is unknown to
the court. However, it is clear to the court that Martin was done
with the status quo.”
5 Preissman was previously a party to this case but reached
a settlement before trial.
revokes the John W. Martin Living Trust Dated February 11,
2009.” The revocation was signed only by Martin.
Martin executed the documents, including the revocation,
on May 12, 2009. Kanin forwarded copies of the executed
documents to Martin that same day. He also told Martin that he
would notify Diaz, Cundall, and Preissman of the new estate
Prior to execution of the May Trust documents, Martin had
informed Diaz that he had retained a new estate planning
attorney. Diaz wrote letters and e-mails to Kanin and
Preissman, seeking information about the new estate plan and
stating her belief that Martin was not in his right mind. Diaz
also spoke with Martin’s longtime doctor, but the doctor told Diaz
that he thought Martin was fine.
The relationship among Diaz, Cundall, and Martin
continued to deteriorate after the May Trust documents were
executed. Diaz and Cundall attempted to have Martin
psychiatrically evaluated. Cundall retained an attorney and
terminated Martin’s tenancy in Cundall’s rental unit.
Clyde helped Martin move back into his house in June
2009. Martin died on January 25, 2010.
3. Proceedings in the Trial Court
In September 2010, Cundall filed a petition for instructions
under section 17200. (In re the John W. Martin Living Trust
Dated February 11, 2009 (Super. Ct. L.A. County, 2018,
No. BP124639).) The petition sought a determination that the
February Trust was not validly revoked and that all the trust
assets should therefore pass to him. Clyde and Preissman filed
an objection.
Also in September 2010, Clyde and Preissman filed a
separate petition, seeking a determination that the February
Trust was properly revoked and that the May Trust was valid
and enforceable. (In re the John W. Martin Living Trust Dated
May 12, 2009 (Super. Ct. L.A. County, 2018, No. BP124548).)
The two petitions were tried together in a 23-day trial (which
extended over two years due to various continuances for health
and scheduling reasons). Diaz represented Cundall at the trial.
The trial court issued a final statement of decision on
July 31, 2018, concerning both petitions.6 With respect to the
facts, the court found no evidence that Martin lacked capacity to
execute the May Trust, and also found no evidence that Martin
was subject to undue influence by either Cundall or Diaz in
executing the February Trust. The court stated that the
“inexplicable vehemence with which Cundall and Diaz reacted
when they learned of the May Trust . . . was of concern to the
court,” but the court nevertheless concluded that the evidence
was too thin to support an inference that Diaz and Cundall “were
scheming to get Martin’s estate all along.”
The court also found that there was no basis to reform the
February Trust to require Diaz’s consent to revoke the trust. The
trial court found that Diaz’s testimony was not credible, and that
her testimony was “the only evidence that Martin wanted to be
able to revoke the trust only with her consent.”
With respect to the legal effect of Martin’s May 2009
revocation, the trial court found that the February Trust “did not
provide an explicitly exclusive means of revocation.” Citing
6 Cundall appealed only from the ruling on his petition in
case No. BP124639.
Masry, the court concluded that Martin’s revocation was
therefore valid under the statutory revocation method set forth in
section 15401, subdivision (a)(2), because Martin executed the
revocation and Kanin sent him copies of the trust documents.
(See Masry, supra, 166 Cal.App.4th 738.)
1. Standard of Review
Cundall’s arguments on appeal concern the interpretation
of section 15401 and interpretation of the language of the
February Trust. Both are issues of law that we review
independently. (People ex rel. Lockyer v. Shamrock Foods Co.
(2000) 24 Cal.4th 415, 432 [interpretation of a statute is an issue
of law]; Burch v. George (1994) 7 Cal.4th 246, 254 [interpretation
of a trust instrument presents a question of law unless
interpretation turns on a conflict in the extrinsic evidence].)
Clyde argues that this court must defer to the trial court’s
factual findings concerning Martin’s intent in establishing the
revocation procedure in the February Trust. That would be true
if our analysis depended upon any factual issues.7 For example,
Cundall argues that Martin’s intent in requiring Diaz’s signature
to revoke the February Trust was to identify her as a “trust
protector” who would prevent Martin from making “improvident
changes” to his estate plan. If the availability of the statutory
revocation method under section 15401 depended upon whether
Martin intended Diaz to be such a trust protector, we might be
7 In that event, we would consider whether the trial court’s
findings are supported by substantial evidence, not whether the
trial court abused its discretion as Clyde suggests. (In re
Marriage of Fonstein (1976) 17 Cal.3d 738, 746–747.)
called upon to consider the trial court’s factual finding that Diaz
did not testify reliably on that point. But it is not necessary to
consider that factual question. As discussed below, Martin’s
intent in requiring Diaz’s signature is irrelevant because the
February Trust does not explicitly state that it establishes the
exclusive method to revoke the trust.
2. The Alternative Revocation Procedure in
Section 15401 is Available Whenever a Trust
Document Does Not Explicitly State That It
Establishes an Exclusive Revocation Method
Section 15401, subdivision (a) establishes two alternative
“methods” through which a “trust that is revocable by the settlor
or any other person may be revoked in whole or in part.” First, a
trust may be revoked “[b]y compliance with any method of
revocation provided in the trust instrument.” (§ 15401, subd.
(a)(1).) Second, a trust may be revoked “[b]y a writing, other than
a will, signed by the settlor or any other person holding the power
of revocation and delivered to the trustee during the lifetime of
the settlor or the person holding the power of revocation.”
(§ 15401, subd. (a)(2).) Section 15401 establishes only one
exception to the availability of this alternative statutory
revocation mechanism: “If the trust instrument explicitly makes
the method of revocation provided in the trust instrument the
exclusive method of revocation, the trust may not be revoked
pursuant to this paragraph.” (§ 15401, subd. (a)(2).)
The trial court found that Martin (who was both the settlor
and the trustee of the February Trust) complied with the
statutory revocation procedure by executing the May 2009
revocation of the February Trust and then receiving a copy of the
executed revocation from his attorney, Kanin. Cundall does not
challenge this factual finding. Thus, if the statutory revocation
method under section 15401, subdivision (a)(2) was available to
Martin, it was effective to revoke the February Trust.
Cundall argues that Martin could not use the statutory
revocation method for two alternative reasons. First, Cundall
argues that the statutory method does not apply when a trust
establishes that a particular person other than the settlor—a
“trust protector”—must approve a revocation. Second, Cundall
claims that the February Trust falls within the exception for a
trust that specifies an “exclusive” method of revocation. We
reject both arguments.
a. There is no exception to the statutory
revocation procedure for trusts that
designate persons who must approve
Cundall argues that the alternative revocation method in
section 15401 does not apply to trusts that establish a “trust
protector” because section 15401 is limited to the “method” of
revoking a trust rather than the authority to revoke. The
argument requires us to interpret section 15401.
In interpreting a statute, our task is to “ ‘ “ ‘ascertain the
intent of the lawmakers so as to effectuate the purpose of the
statute.’ ” ’ ” (Apple Inc. v. Superior Court (2013) 56 Cal.4th 128,
135.) In doing so, we “begin by examining the statutory
language, giving the words their usual and ordinary meaning.”
(Day v. City of Fontana (2001) 25 Cal.4th 268, 272.) We construe
the statutory language in context and in light of the statute’s
purpose. (Apple, at p. 135; Lungren v. Deukmejian (1988) 45
Cal.3d 727, 735.) If the language is not ambiguous, “we presume
the lawmakers meant what they said, and the plain meaning of
the language governs.” (Day, supra, 25 Cal.4th at p. 272.)
However, if there is ambiguity, we may “resort to extrinsic
sources, including the ostensible objects to be achieved and the
legislative history.” (Ibid.) We then “ ‘ “select the construction
that comports most closely with the apparent intent of the
Legislature, with a view to promoting rather than defeating the
general purpose of the statute, and avoid an interpretation that
would lead to absurd consequences.” ’ ” (Ibid., quoting People v.
Coronado (1995) 12 Cal.4th 145, 151.)
Applying these principles to section 15401, it is clear that,
unless a trust document contains an explicit statement that the
trust’s revocation method is exclusive, the statutory revocation
method is available, regardless of whether the trust document
requires that a particular person approve revocation.
First, the language of section 15401 is unambiguous. In
introducing the two methods of revoking a trust, section 15401
states that a “trust that is revocable by the settlor or any other
person may be revoked in whole or in part by any of the following
methods.” (§ 15401, subd. (a), italics added.) The only exception
is that the statutory revocation method is unavailable “[i]f the
trust instrument explicitly makes the method of revocation
provided in the trust instrument the exclusive method of
revocation.” (§ 15401, subd. (a)(2), italics added.)
Thus, section 15401 does not create an exception to the
scope of the statutory revocation procedure for trusts that require
a person other than the settlor to approve revocation (unless, of
course, the trust instrument explicitly states that such approval
is the exclusive means of revoking). Whether one draws a
theoretical distinction between the “method” of revoking and the
“authority” to revoke therefore does not matter. The method of
revocation that section 15401 describes is available unless a trust
document explicitly establishes another exclusive method.
Second, the distinction that Cundall draws between a
method for revocation and the authority to revoke is inconsistent
with the ordinary meaning of “method.” Merriam-Webster
defines “method” broadly as “a procedure or process for attaining
an object.” ( [as of
May 27, 2020], archived at .)8 A
procedure or a process can include the persons with the authority
or responsibility to perform particular tasks. For example, a
“method” of alternative dispute resolution may identify how
arbitrators will be chosen and what their authority will be.
Third, section 15401 does address the authority to revoke a
trust. It identifies who may use the statutory revocation method
by stating that a trust that is revocable “by the settlor or any
other person” may be revoked by a writing signed “by the settlor
or any other person holding the power of revocation.” (§ 15401,
subd. (a)(2).) It also limits the authority of an attorney in fact by
stating that a trust “may not be modified or revoked by an
attorney in fact under a power of attorney unless it is expressly
permitted by the trust instrument.” (§ 15401, subd. (c).)
Cundall acknowledges that section 15401, subdivision (a)(2)
addresses the authority of a designated “other person” to revoke a
trust, but argues that this language actually shows that the
Legislature intended to separate the issue of the authority to
8 Cundall cites a similarly broad definition of “method” in as “the procedure, technique, or way of doing
something.” (
[as of May 26, 2020], archived at .)
revoke from the method of revocation. Cundall claims the
language means that “if the settlor grants a third party the
power to revoke the trust, it is that third party (not the settlor)
who must invoke the statute.” Thus, according to Cundall,
section 15401 is agnostic about who has the authority to revoke a
trust. Under Cundall’s view, section 15401 simply accepts
whatever a trust dictates on that subject, and then gives the
designated person or persons another means to revoke the trust
in addition to whatever revocation method the trust specifies.
The argument is inconsistent with the plain language of
the statute. Section 15401, subdivision (a)(2) states that a
writing revoking a trust may be signed by the “settlor or any
other person holding the power of revocation.” (Italics added.)
By using the disjunctive, the Legislature gave the right to revoke
both to the settlor and to any “other person” to whom the settlor
gave such a right (unless, again, the settlor stated explicitly that
revocation by the other person is the exclusive method to revoke).
Cundall’s argument is also inconsistent with the legislative
history of the language that he cites. The relevant language was
added in 2012 by Assembly Bill No. 1683 (2011–2012 Reg. Sess.),
which was sponsored by the Trusts & Estates Section of the State
Bar. (See Assem. Com. on Judiciary, Analysis of Assem. Bill
No. 1683 (2011–2012 Reg. Sess.) as amended Mar. 13, 2012, p. 1
(Assem. Com. Analysis).) The bill was intended to clarify
uncertainty in the law stemming from court decisions that
limited the right of a surviving spouse to revoke a joint trust after
the death of the first settlor, even when the trust instrument
gave the surviving spouse the right to revoke. (Id. at p. 2; see
Estate of Powell (2000) 83 Cal.App.4th 1434.) Nothing in the
legislative history suggests that the language was intended to
limit a settlor’s statutory right to revoke a trust absent an
explicit statement to the contrary. Rather, the Assembly
Committee on the Judiciary explained that the bill “provides that
a revocable trust may be revoked by the settlor or any person
holding the power of revocation if the revocation is delivered to
the trustee during the lifetime of either the settlor or the person
with the power of revocation.” (Assem. Com. Analysis, supra, at
p. 3.)
Fourth, retaining authority in the settlor to revoke a trust
unless the settlor explicitly surrenders that authority is
consistent with the current statutory scheme. As discussed
further below, section 15401 changed prior law by requiring an
explicit statement that a revocation method described in a trust
document is exclusive rather than permitting an inference of
exclusivity based upon a trust’s detailed revocation procedures.
The current rule protects “the clear intention of the settlor who
attempts to revoke a revocable trust by the statutory method, in
circumstances that do not involve undue influence or a lack of
capacity.” (Selected 1986 Trust and Probate Legislation (Sept.
1986) 18 Cal. Law Revision Com. Rep. (1986) p. 1271
(Commission Report).)
Under the prior rule, courts defended the primacy of trust
provisions on the ground that permitting revocation under the
statutory method “would not allow [a settlor] to protect himself
from the consequences of his whim, caprice, momentary
indecision, or of undue influence by other persons.” (Hibernia
Bank v. Wells Fargo Bank (1977) 66 Cal.App.3d 399, 404
(Hibernia); see also Huscher v. Wells Fargo Bank (2004) 121
Cal.App.4th 956, 970 (Huscher) [“if the trustor has gone to the
trouble to spell out a revocation method in some detail, the
procedure must have some importance to the trustor, especially
where the procedure is geared toward protecting the trustor from
his own incompetence or the undue influence of others,” italics
added].) This is precisely the argument that Cundall makes in
support of the conclusion that the statutory revocation procedure
in section 15401 should not apply to trust protector provisions.
Fifth, the interpretation of section 15401 that Cundall
urges is not necessary to preserve the role of a “trust protector.”
A settlor who wishes to require that a trust protector approve any
revocation need only state explicitly in the trust instrument that
such approval is the exclusive method to revoke. That is a simple
and reasonable requirement, and there is no reason to believe the
Legislature intended any different interpretation of section 15401
simply because the use of a trust protector is a recognized estate
management tool.
We therefore reject Cundall’s argument that the statutory
revocation method in section 15401, subdivision (a)(2) did not
apply to the February Trust because the trust designated Diaz as
a “trust protector.”
b. The February Trust did not explicitly
establish an exclusive method of
Cundall argues that even if section 15401 applies to the
February Trust, the revocation procedure specified in the trust
was exclusive. (§ 15401, subd. (a)(2).) Cundall argues that the
trust’s revocation procedure was explicitly exclusive because it
expressly specified the conditions under which the trust could be
Cundall’s argument is inconsistent with the plain language
of the statute. Simply establishing a particular method of
revocation does not explicitly make that method exclusive. As the
court explained in Huscher, the term “ ‘explicit’ ” “is equated with
the term ‘express,’ and means directly and distinctly stated in
plain language that is unequivocal and unambiguous.” (Huscher,
supra, 121 Cal.App.4th at p. 968, citing Jones v. Regan (1959) 169
Cal.App.2d 635, 640.) A statement does not explicitly
communicate the author’s intent if one must make an inference
to understand that intent. (Huscher, at p. 968 [“explicit ‘implies
such verbal plainness and distinctness that there is no need for
inference and no room for difficulty in understanding’ ”], quoting
Webster’s 9th New Collegiate Dict. (1988) p. 438.)
Absent a direct statement of exclusivity, to reach the
conclusion that a settlor intended a specific revocation method to
be exclusive one must infer that the settlor would not have
established that revocation method if he or she intended another
to apply.9 Whether or not such an inference is reasonable in light
of the particular trust provision, it is still an inference. The
settlor’s intent is not explicit.
The court in Masry interpreted section 15401 similarly. In
Masry, the trustors, a husband and wife, established a family
9 Cundall’s argument recognizes this. Cundall relies on the
principle of interpretation acknowledging that an author’s choice
to specify one thing tends to exclude others (“expressio unius est
exclusion alterius”). (Stephenson v. Drever (1997) 16 Cal.4th
1167, 1175.) In Stephenson, our Supreme Court explained this
principle in the context of contract interpretation: “The fact that
the contract expressly so provides tends to negate any inference
that the parties also intended another consequence to flow from
the same event.” (Ibid., italics added.) Negating an inference
about a drafter’s intent is much different from an explicit
statement about his or her intent.
trust. They stated in the trust instrument that each reserved the
power to revoke the trust during their joint lifetimes “by written
direction delivered to the other Trustor and to the Trustee.”
(Masry, supra, 166 Cal.App.4th at p. 740.) However, the trust
instrument did not say that this method was exclusive. (Ibid.)
The husband executed a document revoking the trust but failed
to deliver it to his wife during his lifetime. (Id. at pp. 740–741.)
The court held that the husband nevertheless successfully
revoked the trust under the statutory method. The court cited
Huscher for the principle that “ ‘a modification method is
explicitly exclusive when the trust instrument directly and
unambiguously states that the procedure is the exclusive one.’ ”
(Masry, supra, 166 Cal.App.4th at p. 742, quoting Huscher,
supra, 121 Cal.App.4th at p. 968.) The court reasoned that, “[i]f
the language in the trust were sufficient to qualify as the
explicitly exclusive method, then the language in section 15401,
subdivision (a)(2) would be unnecessary.” (Masry, at p. 742.)
Although the court recognized that the discussion on this issue in
Huscher was dictum, the court adopted the reasoning in that case
in concluding that, “absent language in the trust that its method
of revocation is exclusive, the trustor has the option of revoking
according to the method provided in . . . section 15401,
subdivision (a)(2), delivering notice to himself as trustee.” (Id. at
p. 743.)
In Huscher, the court considered whether a trust was
properly modified under the law that preceded section 15401.10
10 Because the trust in Huscher was created before July 1,
1987, it was governed by the prior law. (Huscher, supra, 121
Cal.App.4th at p. 961, citing section 15401, subd. (e).)
The trust at issue required that an amendment be signed by both
the trustor and the trustee, but the trustor alone signed a
number of instructions purporting to amend the trust. (Huscher,
supra, 121 Cal.App.4th at pp. 959–960.) After the trustor’s
death, a beneficiary challenged the amendments. The trustee
bank defended the validity of the amendments, arguing that the
amendment procedure set forth in the trust instrument was not
exclusive, and that the trustor’s amendments complied with the
procedure in former section 2280 of the Civil Code.11
After surveying the relevant cases, the court concluded
that, under the prior case law, a trust could be revoked or
amended by the statutory procedure unless the trust “contains a
revocation or modification procedure that is either explicitly or
implicitly exclusive.” (Huscher, supra, 121 Cal.App.4th at p. 970,
italics added.) The court contrasted that rule with the rule under
section 15401, which requires explicit exclusivity. (Id. at pp. 960,
967.) The court also noted that the requirement for explicit
exclusivity represented a “change in the prior case law rule.” (Id.
at p. 971, fn. 13.)
11 Prior to the enactment of sections 15401 and 15402 in
1986, both revocation and modification of trusts were governed by
former section 2280 of the Civil Code. (Huscher, supra, 121
Cal.App.4th at pp. 961–963 & fn. 6; see King v. Lynch (2012) 204
Cal.App.4th 1186, 1191 (King).) At the time it was repealed,
Civil Code section 2280 provided that “[u]nless expressly made
irrevocable by the instrument creating the trust, every voluntary
trust shall be revocable by the trustor by writing filed with the
trustee.” (Huscher, at p. 963.) The first part of this sentence was
preserved in the current section 15400, which now reads in part:
“Unless a trust is expressly made irrevocable by the trust
instrument, the trust is revocable by the settlor.”
We agree with the holding in Masry and the dicta in
Huscher. The interpretation of section 15401 in those cases gives
effect to the plain meaning of the section and also recognizes the
change that section 15401 made to the prior law.
Cundall argues that section 15401 did not actually change
the prior rule that a trust instrument could impliedly establish
an exclusive revocation method by creating a specific and detailed
procedure for revocation. The argument is inconsistent both
with the plain language of section 15401 and with the legislative
In a comment to section 15401 when it was reenacted in
1990, the California Law Review Commission (Commission)
explained that, under that section, a “settlor may revoke a
revocable trust in the manner provided in subdivision (a)(2),
unless there is a contrary provision in the trust.” (Cal. Law
Revision Com. com., Deering’s Ann. Prob. Code (2020 ed.) foll.
§ 15401.) The Commission expressly stated that “[t]his changes
the rule under prior case law.” (Ibid.)
Prior to the enactment of section 15401 in 1986, the
Commission explained how the section changed prior law. In the
Commission Report, the Commission summarized the prior law
by stating that “California courts generally have held that where
the trust instrument prescribes a method of revocation, the
prescribed procedure must be followed rather than the statutory
method.” (Commission Report, supra. at p. 1270.) The
Commission explained that a consideration in favor of that rule
was that “the settlor may wish to establish a more complicated
manner of revocation than that provided by statute where there
is a concern about ‘future senility or future undue influence while
in a weakened condition.’ ” (Id. at p. 1271, quoting Cohan &
Kasner, Supplement to Drafting California Revocable lnter Vivos
Trusts (Cal.Cont.Ed.Bar 1982) § 5.2, p. 73.) However, a contrary
view was that enforcing the method of revocation specified in a
trust instrument might defeat the intention of a settlor who is
mentally competent and attempts to revoke using the statutory
method, particularly where “the settlor may have forgotten about
the method provided in the trust, or may not be aware of the
case-law rule.” (Commission Report, supra, at p. 1271.)
The Commission explained that the proposed legislation
“adopts a compromise position that makes available the statutory
method of revoking by delivery of a written instrument to the
trustee during the settlor’s lifetime except where the trust
instrument explicitly makes exclusive the method of revocation
specified in the trust. This allows a settlor to establish a more
protective revocation scheme, but also honors the settlor’s
intention where the intent to make the scheme exclusive is not
expressed in the trust instrument.” (Commission Report, supra,
at p. 1271; see also King, supra, 204 Cal.App.4th at p. 1192 [the
Commission Report’s characterization of section 15401 as a
“compromise position” shows that, “with respect to revocation,
the Legislature adopted the essence of the Huscher court’s
analysis”].) Thus, the “compromise position” embodied in section
15401 clearly changed the prior law.
Cundall’s reliance on Hibernia, which was decided under
the prior law, is therefore misplaced. (See Hibernia, supra, 66
Cal.App.3d at pp. 402–405.)
Cundall also cites Conservatorship of Irvine (1995) 40
Cal.App.4th 1334, which was decided under current law and
contains language suggesting that section 15401 incorporated
existing prior case law. (Id. at p. 1344, fn. 3.) We disagree with
this conclusion for the reasons discussed above. Moreover, the
issue in Irvine was not the validity of a trust revocation, but
rather the validity of a purported trust modification, which under
current law is subject to a different statutory analysis. (See
King, supra, 204 Cal.App.4th at p. 1193.) Finally, as the courts
in Huscher and Masry both noted, Irvine is unpersuasive in
interpreting section 15401, as the court in that case relied on
authorities that had interpreted Civil Code former section 2280.
(See Huscher, supra, 121 Cal.App.4th at p. 966; Masry, supra,
166 Cal.App.4th at p. 742.)
Finally, Cundall cites Gardenhire v. Superior Court (2005)
127 Cal.App.4th 882, where the court offered the observation
that, if a trust provides a method of revocation, section 15401,
subdivision (a)(2) is inapplicable. (Id. at p. 894.) The observation
was dictum—the actual issue in that case was whether a trustor
effectively revoked her trust under the method specified in the
trust itself by executing a subsequent will. (Id. at p. 888–895.)
The peripheral nature of the court’s observation is apparent from
the fact that the court also correctly stated in a prior footnote
that section 15401, subdivision (a)(2) “provides a default method
of revocation where the trust is silent on revocation or does not
explicitly provide the exclusive method.” (Id. at p. 894, fn. 7,
italics added.) We agree with the court in Masry that the dictum
in Gardenhire on which Cundall relies was wrong. (See Masry,
supra, 166 Cal.App.4th at p. 743.)
The February Trust did not explicitly state that the method
of revocation the trust established was exclusive. The trial court
therefore correctly concluded that Martin effectively revoked the
February Trust under the statutory method by executing the
revocation document in May 2009 and receiving an executed copy
of the revocation from Kanin.

Outcome: The trial court’s order is affirmed. Clyde is entitled to her costs on appeal.

Plaintiff's Experts:

Defendant's Experts:


Find a Lawyer


Find a Case