It’s not unusual for a potential beneficiary to question the wording of a will or trust, claiming that the document doesn’t mean what it says. But it is much less common for the person questioning the wording to be the person who created the document.

That’s essentially what happened in a recent case decided by the California Court of Appeal (Balistreri v. Balistreri.)

Mary and Sal Balistreri, a married couple, had a daughter, Julia. Sal also had two children from a prior marriage, Sal Jr. and Christina.

In 2017 they created the Balistreri Family Trust, funding the Trust with their San Francisco home and stating that upon their death the property would be “distributed equally among” Julia, Sal Jr., and Christina.

The document specified that the trust could be modified by either the husband or wife acting alone, or by both acting jointly. It also said that any “amendment, revocation, or termination . . . shall be made by written instrument signed, with signature acknowledged by a notary public, by the trustor(s) making the revocation, amendment, or termination, and delivered to the trustee.”

(The couple had previously created and amended other trusts. Each time they had their signatures notarized.)

In February 2020, Sal executed a document titled “First Amendment to Trust” that sought to strike the clause distributing the property to the three children upon the death of a decedent. Instead, the home would stay in the trust.

Mary and Sal signed the amendment as co-trustees, but did not have it notarized.

Sal died the next day.

Mary asked the probate court for an order confirming the validity of the amendment so that she could keep the home in the trust (as opposed to distributing it to her daughter Julia and Sal's two children). She acknowledged that the trust required that such a change had to be notarized, but argued that the clause did not exclude other ways of amending the trust.

In addition, she said, while “a notary public’s acknowledgment may serve a useful purpose when a trust settlor delivers a signed document to a third-party trustee,” it serves “no purpose” when the trustors and trustees “are the same people.”

The probate court denied her request, saying the amendment was “null and void” because the trust required that any such change had to be notarized.

Mary then appealed. However, she fared no better at the appellate level.

The appellate justices noted that California statutes provide two methods for modifying a trust.

Under the first method, a trust may be revoked by “compliance with any method of revocation provided in the trust instrument.”

A second method allows a trust to be revoked in “a writing, other than a will, signed by the settlor ... and delivered to the trustee during the lifetime of the settlor.”

However, if “the trust instrument explicitly makes the method of revocation provided in the trust instrument the exclusive method of revocation,” that method must be used.

The trust created by Mary and Sal required that an amendment “shall” be notarized. The probate court based its ruling on the fact that the document they drafted the day before Sal died was not notarized.

Mary urged the appellate court to regard the requirement for notarization as an unimportant technicality and to focus instead on the intent expressed in the amendment.

While courts “must construe a trust instrument, where possible, to give effect to the intent of the settlor,” the justices responded, that intent “must be ascertained from the whole of the trust instrument, not just separate parts of it.”

The intent explicitly expressed in the trust was that any amendment must be notarized, the justices said. For that reason, the non-notarized amendment was ineffective.

They affirmed the decision of the probate court and awarded costs on appeal to Mary’s son, Sal Jr.

By Lynda I. Chung