Regular readers of this blog have already noted my particular enthusiasm for creativity in legal arguments. I am not a judge (Hi Judge Galvin!), but if I were, I would be sorely tempted to pattern my unique brand of judicating after gymnastics judges, who dutifully award points for artistry as well as execution.

And that’s why I have nothing but admiration for the appellant’s counsel in the recent appellate decision Trotter v. Van Dyck (2024) _ Cal.App.5th _. Counsel was faced with a steep hill to climb: he had to convince the Court of Appeal to overturn the trial court’s decision and find that the deceased settlor had executed a valid trust amendment. His primary obstacle? The proposed amendment was unsigned. In fact, it wasn’t even a traditional amendment – instead, it was a series of emails sent by the settlor to her estate planning attorney expressing her requests that modifications be made to her trust.

The signature requirement is a pretty unassailable requirement of a California testamentary document. Wills must be signed. Written trust instruments must be signed. And trust amendments must be signed, unless there is a provision in the trust instrument providing otherwise (personally, I have never seen a trust instrument that allowed for an unsigned amendment, and I suspect most of you haven’t either).

The trust at issue in Trotter was not unusual – it provided that the trust could be amended by a written instrument, signed by the settlor, and delivered to the trustee – who, in this case, was the settlor herself.

So yes, appellant’s counsel had a tough job. But with the facts and the law both against him, counsel eschewed the customary approach of lawyers in his position (i.e., screaming, crying, and pounding the courtroom table), and instead took the true gymnast’s path of artistry. That is, he argued that the settlor had signed the proposed trust amendment, but had done so electronically by sending the emails to her attorney.

Like the Court of Appeal did in this case, this blog will ignore the question of whether sending an email can be considered signing the email. Instead, counsel’s argument moved the Court to answer a different question: can an electronic signature satisfy a trust amendment’s signature requirement?

In a word: no. No California law allows for a testamentary document to be signed electronically, nor did the trust at issue here provide for an electronic signature.

But counsel had a few more tricks in his floor routine. He pointed to California’s Uniform Electronic Transactions Act (the “UETA”), which does allow for an electronic signature to satisfy a signature requirement, as long as the “two or more persons” engaging in a transaction have agreed to proceed by electronic means. Counsel further argued that the proposed amendment was a “transaction” because (as the trust required) the settlor “delivered” the amendment to the trustee.

Now, a regular person who is capable of counting to two might point out the obvious flaw in this argument: how can the settlor delivering an amendment to herself constitute a transaction between two or more persons? But that wasn’t the part of the argument the Court took issue with. That is because probate law has no shortage of artistry itself, and has long recognized that a person acting in one capacity (“settlor”) may be considered completely separate from the same person operating in a different capacity (“trustee”). Shows what you know, regular person.

The Court of Appeal instead held that the trust amendment could not constitute a “transaction” that would be governed by the UETA because the purported trust amendment here was a unilateral act, executed by settlor herself and no one else. Simply “delivering” the amendment to the trustee did not make the amendment a transaction between two or more persons, any more than sending a letter to someone would be considered a transaction.

The Court of Appeal’s ruling in short: (1) the UETA did not apply; (2) a trust amendment cannot be effectuated via an electronic signature; and (3) counsel’s artistry here (as all too often in life) was appreciated, but not rewarded.

The Trotter decision leaves us with a larger question, however, as to electronic signatures and trust amendments: to wit, why not? If the California Legislature has already authorized the use of electronic signatures for transactional documents, why not do the same for testamentary documents? Certainly the pertinent concerns about fraud and veracity apply to both areas.

But logic aside, it’s probably not happening. The Legislature proposed legislation in the 2019-2020 legislative session that would have provided for the electronic creation and execution of wills, but the bill was defeated and deferred for “further evaluation.” If the Legislature did not give its blessing to electronically executed testamentary documents during the heart of the COVID pandemic, when remote legal operations were all the rage, it’s unlikely to do so anytime soon, no matter how artistic it may be.

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