Handwritten, unsigned notes valid to amend trust

In In Re: Stillwell Trust, a published Michigan Court of Appeals opinion, the court discussed two issues: whether hand-written notes constituted a valid amendment to the trust, and whether a child adopted after the settlor passed away was a grandchild-beneficiary of the trust.

Gwendoline Stillwell executed a revocable trust in 2001 that provided that upon Stillwell’s death, all the trust property would be distributed to her two children and her grandchildren, including future born and adopted grandchildren. Stillwell made a series of handwritten, dated, and unsigned writings. One of the writings gave her son-in-law a share “as he was a wonderful soninlaw [sic]” and required two grandchildren’s college tuition be funded from the trust before distribution.

The son-in-law petitioned to be added as a beneficiary because of the handwritten notes, as well as to have a daughter he and Stillwell’s daughter adopted six days after Stillwell’s death admitted as a grandchild-beneficiary.

The probate court ruled that the handwritten notes were a valid amendment, that the son-in law was entitled to share in the distribution, that the two grandchildren’s student loans should be paid off before the trust assets are distributed, and that the adopted grandchild was entitled to take as a beneficiary.

The Michigan Court of Appeals affirmed all except the designation of the adopted granddaughter as a grandchild-beneficiary. The court pointed out that EPIC allows a settlor to determine the method of amending the trust in the trust documents, and here Stillwell’s trust allowed for modification in any manner without the requirement of a signature. The court pointed out that a signature requirement is meant to authenticate the author of a document, and here there was no argument that Stillwell authored the notes. Although the notes were not signed and not titled “amendment”, the court found that there was clear intent for the notes to constitute an amendment to the trust.

As for the grandchild issue, the court found that Stillwell created a class gift to her grandchildren that closed at the time of the testator’s death. A grandchild adopted or conceived after Stillwell’s death would not be included in the class, so the adopted grandchild was not entitled to take because she was not Stillwell’s grandchild at the time of Stillwell’s death.

This case highlights the importance of being clear in your directives and following the methods in your estate planning documents for amending your wishes. Stillwell clearly expressed her intent for the distribution of the assets in the amendments. If you need to amend your estate planning documents, contact Gallagher Law Firm attorney Craig Gerard.