In 1993, Lena Cassinerio established the Lena M. Cassinerio Family Trust naming her children, Bernadette, Peter, Karon, and Agnes, as beneficiaries of the trust. That year, Bernadette’s son, Gerald, a certified financial planner and investment management analyst, began advising Lena on money management and investments. In 1999, Lena told Gerald that she wanted her estate plan rewritten so that her children would not have to pay estate taxes upon her death. Gerald referred Lena to an attorney, Mr. Larsen, who prepared a number of estate planning documents for Lena including an amended and restated trust (the 1999 Trust).
In January 2001, Lena was diagnosed with a brain tumor and underwent several surgeries. During this time, she told Gerald that she wanted to name additional trustees, and Gerald relayed the message to Mr. Larsen. Instead of summoning Mr. Larsen while Lena was in and out of the hospital, Lena’s daughter Agnes summoned an insurance agent and notary, Mr. Dryssen, to notarize Lena’s signature on documents. During this visit Mr. Dryssen agreed to look over Lena’s estate planning documents.
Mr. Dryssen had no legal or tax planning training, nevertheless, on February 28, 2001, Lena executed several documents prepared by Mr. Dryssen including revocation of the 1999 Trust and a new revocable trust (the 2001 Trust) naming her four children as beneficiaries and reserving the power to amend the trust by a signed writing. Sometime after February 28, 2001, Mr. Dryssen removed pages three and five from the 2001 Trust and substituted new pages that deleted Bernadette as a trust beneficiary. The pages were initialed by Lena but not dated.
Lena died in November 2001 and Bernadette filed a petition for construction of the trust and a determination of the beneficiaries. The probate court ruled that the purported amendments of the 2001 Trust were invalid and that the version including Bernadette as a beneficiary was valid. The court held that the trust required amendments to be made by a “signed writing” and that Lena’s initials at the bottom of the substitution pages did not meet California statutory requirements for a signature. The probate court also found that Lena intended that all of her children inherit equally based on a videotape of a conversation between Lena and Mr. Dryssen on March 26, 2001. Lena’s other children appealed.
On appeal, the California Court of Appeal reversed the probate court’s finding as to Lena’s signature on the grounds that: (1) the California statute relied on by the probate court applied only to “signature by mark” when a person cannot write; (2) Lena was capable of signing her name at the time of the amendments, rendering the signature by mark requirements inapplicable; (3) the trust terms required amendment by a writing but did not require a particular form of signature for the signature and amendment to be valid; and (4) Lena’s use of initials constituted a valid signature for the amendment.
Nonetheless, the court affirmed the probate court’s finding that the amendment was invalid on the alternative grounds that: (1) the 2001 Trust’s requirement that the amendment be by a signed writing implied that the amendment must be distinguishable from the original trust; (2) the method of “swapping out” pages of the document without a date served to cast doubt on the integrity of the document and led to ambiguity regarding when and how many times the pages were swapped out; and (3) Lena intended to leave her estate equally to all four of her children as evidenced by the video.