Legal Question in Wills and Trusts in California
Amedment Validity Yes/No
Father created a will and revocable trust, he states gifts to one son 35%, other son 65%, but decieded it should be 50/50 a year later. He made amendment to change the percentage, lawyer mailed the amendment to be signed & notary. Unfortunely he had to go into the hospital, the amendment could not be notary in the hospital, no one available, he tell's power of attorney at his bedside to sign the amendment. He died the next morning. Is the amendment valid, he also did not want life support, and had the same power of attorney carry a power of attorney for health decisions. If he refused life support, how would you then say he's incapacitated, if he told the power of attorney to sign the amendment in his behalf at his bedside, with IV's in his arm(s). Now the two brothers, are fighting one wishes to inforce, the other to contest, because power of attorney was for health discisions only, and the physician never deemed him mentally incapable, for power of attorney to be valid. Any suggestions, or case history how this might be decieded.
1 Answer from Attorneys
Amendment Validity Yes/No
The easy comment is that the power of attorney document should specifically authorize the holder of the power of attorney to make amendments to the trust. If it does, and the holder of the power of attorney signed the amendment before the death, then the amendment is valid. The trust doucument may restrict how the amendment can be made and this should also be followed.Now the hard part--it may be possible to argue that the instruction from the decedent to the holder of the power of attorney to sign the amendment is a legally sufficient oral authorization, particularly if it was witnessed or heard by someone else. Without that argument and unless there was specific authority in either the trust documnet or power of attorney documnet, there is no way the attempted amendment would be upheld as valid
Related Questions & Answers
Looking for something else?
10,200 active attorneys ready to answer your legal questions today.
Featured Attorneys
Earn additional revenue and grow your business.
