For centuries, serious legal scholars have debated what is possibly the most vital question of our times: in what ways, if any, does our judicial system differ from basketball? Now, thanks to the California Supreme Court’s recent decision in Haggerty v. Thornton (2024) 15 Cal.5th 729, we finally have an answer.

Longtime readers of the blog have intently followed the twists and turns that California’s appellate courts have taken in their treatment of trust instrument modification. Specifically, you’ve all waited with bated breath for the latest news on what happens when a trust amendment complies with the Probate Code’s requirements for trust modification, but fails to comply with that trust’s own specifically prescribed procedure for modification.

For a long time, it looked like a blowout. Four separate appellate decisions took the hardline approach: King v. Lynch (2012) 204 Cal.App.4th 1186, Pena v. Dey (2019) 39 Cal.App.5th 546, Balistreri v. Balistreri (2022) 75 Cal.App.5th 511, and Diaz v. Zuniga (2023) 91 Cal.App.5th 916 all held that where a trust instrument specifies the manner in which it is to be amended, amendments to the trust are valid only where they comply with that method.

Standing on the other side of the line in the more flexible camp was a single appellate decision: Haggerty v. Thornton (2021) 68 Cal.App.5th 1003, which stood alone in deciding that unless a trust instrument explicitly states that its specified modification method is exclusive, an amendment that complies with California’s statutory modification procedure (Probate Code sections 15401 and 15402) is valid even when it fails to comply with that trust’s preferred modification method.

So here’s where the scholars get their answer: in basketball, a team with a four-on-one advantage will win every time. As steep as the odds are for the underdogs that emerge every March in college basketball, even the Cinderella teams are allowed to hit the court with a full roster. And LeBron James wouldn’t stand a chance were he forced to play solo against four Brian Scalabrine’s. So by basketball logic, the Haggerty Court of Appeals decision didn’t stand a chance.

(Keen-eyed readers of the blog will note here that I don’t know much about basketball.)

But it turns out that litigation is not basketball. In fact, it turns out that litigation is a lot more like pro wrestling, where solo competitors regularly emerge victorious over seemingly insurmountable odds.

(Even more keen-eyed readers of the blog will note here that I know a lot more about pro wrestling than I do about basketball. Quite frankly, you should all be grateful for how restrained I’ve been with my pro wrestling analogies up to this point.)

And that’s what happened here. The Supreme Court sided with the Haggerty Court of Appeals decision and against the King, Pena, Balistreri, and Diaz decisions, holding unequivocally that “a trust may be modified via the section 15401 procedures for revocation, including the statutory method, unless the trust instrument provides a method of modification and explicitly makes it exclusive, or otherwise expressly precludes the use of revocation procedures for modification.”

That is to say, it is now the law of the land in California that where a trust instrument identifies a method of trust modification, it is not restricting the means by which the trust may be modified, but rather expanding them. A settlor is permitted to amend their trust via the statutory method (in writing, signed by the settlor and delivered to the trustee) or by the means specified in the trust instrument.

The Supreme Court provided fulsome reasoning in support of its decision, citing the plain language of the law, canons of statutory construction, and an extensive analysis of legislative history. I wonder, however, if the Court’s decision wasn’t also driven, at least in part, by the human side of the equation. It is an unspoken truth that it is not usually trust settlors who draft modification language into their trusts – it’s their lawyers. And while settlors sign off on this language, the odds are good that the settlors are paying far closer attention to the distribution terms of their trusts – i.e., who gets what – than they are to the trust’s technical modification procedures.

The nearly inevitable result of this state of affairs is that all too often, a settlor will think that he or she has successfully modified his or her trust, but in reality they have not complied with the trust’s amendment procedures, likely because they have no idea what those procedures are or even that they exist. Under the King/Pena/Balistreri/Diaz holdings, the settlor – or the settlor’s intended beneficiary – is simply out of luck. Under the Supreme Court’s Haggerty decision, however, the settlor gets a second chance – the noncompliant amendment can still be effective, as long as it follows the statutory modification procedures. 

Haggerty thus provides for two shots at the basket instead of one, doubling the chances that settlor’s intent will be honored. That’s . . . (desperately reaching for a basketball reference with which to end the post) a full-court press and an alley-oop pass right into a slam dunk for trust settlors.

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