Can a trust be amended by email? This was the issue in a recent case, In Re Omega Trust, decided by the New Hampshire Supreme Court. In this case, the petitioner argued that a series of emails between the grantor and his attorney should constitute a valid amendment to the Omega Trust. In July of 2019, the grantor told his trustee that he was planning to amend the trust. In August of 2019, the grantor sent his attorney an email with instructions to draft the Third Amendment to the Omega Trust and update other estate plan documents, while informing the attorney that he had substantial health problems. The Third Amendment would make significant changes to the Omega Trust by adding four new beneficiaries and making changes to the successor trustees and successor trust protectors.1 On Aug. 12, 2019, the attorney replied with questions about the proposed changes. On Aug. 16, 2019, the attorney sent an email summarizing the changes and stated that the documents were in the process of being drafted. The grantor replied, “very nice job there are just a few suggested changes as noted below,”2 on the same day the attorney confirmed the documents would incorporate the changes. On Aug. 18, 2019, the grantor died without signing the Third Amendment.
The lower court decided that the series of emails was not enough to amend the trust. The lower court noted that the trust had been amended twice before, and therefore the grantor knew that an amendment required his signature and must be received by the trustee. In addition, the lower court noted that the attorney’s emails indicated that the documents were being prepared for the grantor’s final review and signature. The lower court determined that since the documents were still being drafted and had not received the grantor’s final approval, they could not be considered a completed amendment.
The New Hampshire Supreme Court disagreed with the lower court’s findings, determining that the series of emails could be considered an alternative method of amending the trust provided for in the Uniform Trust Code. The court reasoned that the Uniform Trust Code “provides that a settlor may revoke or amend a revocable trust by two methods: first, ‘substantial compliance with a method provided in the terms of the trust,’ or, second, by ‘any other method manifesting clear and convincing evidence of the settlor’s intent if the terms of the trust do not provide a method or do not expressly prohibit methods other than methods provided in the terms of the trust.’”3 The court reasoned that the second method governed and that the emails should be considered as an alternative method to amend the Omega Trust. The first prong of this test is to determine if the language of the trust provides a method for amending the trust and if it “expressly prohibits methods other than that provided by the trust terms.”4 The court concluded that the Omega Trust did provide a method for amending the trust. However, the court also concluded that the trust did not expressly prohibit other methods of amending the trust. Therefore, the series of emails could be considered as an alternative method not provided in the trust terms.
The second prong of the test is whether the alternative method clearly shows the grantor’s intent. The Uniform Trust Code states, “even absent substantial compliance with the trust’s terms, a settlor may still revoke or amend a revocable trust by ‘any other method manifesting clear and convincing evidence of the settlor’s intent.’”5 The court determined that whether an alternative method clearly shows convincing evidence of the grantor’s intent is a question of fact, not a question of law. The court remanded the case to the trial court to determine if the series of emails is clear and convincing evidence of the grantor’s intent and can be considered as a valid amendment by an alternative method.
The New Hampshire Supreme Court’s reasoning raises a question for us to consider when drafting future trusts. Do we keep the language for amending a trust broad, thereby allowing potential alternative methods to be used, or do we narrow the language to ensure that certain formalities must be met for an amendment to be considered valid?
Kathryn M. Barry is an attorney focusing on probate, estate administration and estate planning. She is the legislative liaison for the Massachusetts Bar Association’s Probate Law Section Council. She received her J.D. from New England Law Boston and her LLM from Boston University School of Law.
“A trust protector . . . is any person, other than a trustee, who under the terms of the trust, an agreement of the qualified beneficiaries, or a court order has a power or duty with respect to a trust.”2. In Re Omega Trust
, No.2021-0138, (2022), page 3.3. Id.
at pages 4 and 5.4. In Re Omega Trust
, No.2021-0138, (2022), page 5.5. Id.