E-mails don’t Amend a Will

Jerry and Mary Trotter established a revocable trust in 2011. They acted as trustees, and their son, Timothy, was the successor trustee. After the deaths of the trustors, certain stock was to be distributed to Timothy, and the balance of the trust assets was to be divided equally among several children, including Jerry’s daughter from his prior marriage, Van Dyck.

Jerry died first. Mary then had second thoughts about the inheritance for Van Dyck, who had already inherited from her mother. Mary was scheduled for surgery on July 1, 2020, and so began a series of e-mail contacts with her estate planning attorney about amending her testamentary plans. She executed a client questionnaire in anticipation of a meeting with the attorney, in which she stated about Van Dyck: “No contact—would prefer to drop from will—if possible.”

The surgery led to complications, and Mary died before meeting with the attorney. As executor of her estate, Timothy asked the probate court whether the e-mails were sufficient to have amended the trust and terminate Van Dyck’s interest. They were not, the probate court held, and the California Court of Appeals affirmed. The state’s electronic signature provisions did not apply to the e-mails because they were not “transactions” within the meaning of that law. What’s more, the series of e-mails showed that Mary was only at the beginning stages of amending her testamentary plans, and that she realized a meeting with the attorney would be required to formalize the changes.

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