Probate & Trust Law Section Conference Manual ... - Minnesota CLE

death, her daughter, in her capacity as the successor trustee, brought an
action to evict the son from the real property. The son argued in
opposition that he was the rightful owner pursuant to the trust
amendments. The Superior Court agreed, granting summary judgment in
the son’s favor and holding that the trust amendments were effective when
executed because the settlor was also the sole trustee, and so delivery was
automatic. On appeal, the court reversed and remanded for further
proceedings to determine the settlor’s intent. In so doing, the appellate
court explained that delivery means more than physical transfer of
possession. “Under Massachusetts law, delivery of a written instrument
amending a trust ... is principally a question of intent.”
2. Johnessee v. Schnepf, 975 N.E.2d 1090 (Ill. App. Ct. 2012). The trust
agreement did not provide that anyone had the power to direct the
trustee; therefore, the grantor did not have the right to amend the
trust agreement. Grantor created a land trust and funded it with certain
property. The trust agreement did not contain an express provision
granting any person the power to amend or revoke the trust agreement.
Grantor crossed out some of the beneficiaries’ names in an attempt to
amend the trust agreement. Illinois statutes provide that a land trust may
be amended if the trust agreement vests in the beneficiary the right to
direct the trustee to convey title. The trust agreement did not provide the
beneficiaries or anyone else with the power to direct the trustee; therefore,
the grantor did not have the power to amend the trust agreement.
3. Perosi v. LiGreci, 948 N.Y.S.2d 629 (N.Y. App. Div. 2012). The
settlor’s attorney-in-fact had authority to amend the trust agreement.
Grantor established an irrevocable trust agreement and appointed his
brother as trustee. At a later time, grantor executed a power of attorney
appointing his daughter as attorney-in-fact with the power to engage in
“estate transactions.” The attorney-in-fact subsequently executed an
amendment to the trust agreement attempting to remove the trustee and
successor trustee. Fifteen days later, the grantor died. The attorney-infact
and the newly appointed successor trustee filed a petition against the
removed trustee for an accounting. New York law provides that, unless
the trust agreement provides otherwise, an irrevocable trust agreement
may be amended by the grantor upon consent of all persons beneficially
interested in the trust. The Court stated that New York statutes do not
specifically authorize an attorney-in fact to amend a trust agreement but
that an attorney-in-fact is “essentially an alter ego” of the principal and is
authorized to act with respect to any and all matters on behalf of the
principal. Therefore, the Court held that absent a special delegation of the
power in the trust agreement or in the power of attorney, the attorney-infact
had the power to amend the trust as the alter ego of the grantor.
4. King v. Lynch, 139 Cal. Rptr. 3d 553 (Cal. Ct. App. 2012). Any
modification of the trust agreement must satisfy the requirements of
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