Filed 9/16/21

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

BRIANNA MCKEE HAGGERTY,

Plaintiff and Appellant,

v.

NANCY F. THORNTON et al.,

Defendants and Respondents.

 D078049

 (Super. Ct. No. 37-2019-

 00028694-PR-TR-CTL)

APPEAL from an order of the Superior Court of San Diego County, 

Julia C. Kelety, Judge. Affirmed.

Blut Law Group and Elliot S. Blut for Plaintiff and Appellant.

Artiano Shinoff, Howard A. Kipnis and Steven J. Barnes for Defendant 

and Respondent Patricia Galligan.

Cross Law and Oleg Cross for Defendant and Respondent Racquel 

Kolsrud.

Higgs Fletcher & Mack, Roland H. Achtel and Scott J. Ingold for 

Defendant and Respondent Union of Concerned Scientists.

No appearance for Defendants and Respondents San Diego Humane 

Society, Nancy F. Thornton, Jill Bousman, George Bousman, Jack Hebert, 

Larry Guentherman, Gail Spielman and Dean Spielman.
2

Brianna McKee Haggerty appeals an order of the probate court finding 

that a trust agreement was validly amended, thereby excluding her from 

distribution. Haggerty’s aunt, Jeane M. Bertsch, created the trust in 2015. 

The trust agreement included the following reservation of rights: “The right 

by an acknowledged instrument in writing to revoke or amend this 

Agreement or any trust hereunder.” Bertsch drafted the disputed 

amendment in 2018. She signed the amendment and sent it to her former 

attorney, but she did not have it notarized.

After Bertsch’s death, Haggerty argued that the 2018 amendment was 

invalid because it was not “acknowledged” as described in the trust 

agreement. The beneficiaries under the 2018 amendment responded that the 

amendment was “acknowledged” within the meaning of the trust agreement 

and, in any event, the method for amendment described in the trust 

agreement was not exclusive. The probate court found that the amendment 

was valid. We agree and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

As noted, Bertsch created the trust at issue in 2015. The trust 

agreement provided that Bertsch “reserves the following rights, each of which 

may be exercised whenever and as often as [she] may wish: [¶] A. Amend or 

Revoke. The right by an acknowledged instrument in writing to revoke or 

amend this Agreement or any trust hereunder.” (Boldface omitted.) The 

agreement nominated Nancy Thornton as trustee in the event of Bertsch’s 

death, resignation, or incapacity. 

The next year, Bertsch drafted a first amendment to the trust 

agreement. This 2016 amendment provided that Haggerty would become 

trustee in the event of Bertsch’s death. The amendment also made changes 

to the beneficiaries of the trust, including a residual distribution to Haggerty. 
3

Bertsch signed the amendment, and it was apparently witnessed by a notary 

public in Illinois. Above the notary’s signature, the document stated, “This 

instrument was acknowledged before me on 10-25-16, by JEANE M. 

BERTSCH.” (Boldface omitted.) The document did not include a notarial 

seal or stamp. 

Bertsch subsequently drafted two handwritten documents, a 

2017 beneficiary list and the disputed 2018 amendment. The 

2017 beneficiary list did not include Haggerty, and it provided that any 

residual assets would be distributed to the Union of Concerned Scientists 

(UCS). It was not signed. The 2018 amendment revised the beneficiary 

instructions again. It provided that UCS would receive “one half (Two 

Million Dollars)” and several individuals would receive “equal portions from 

the remainder half (Two Million Dollars)[.]” Haggerty was not included. 

Above her signature, Bertsch wrote, “I herewith instruct Patricia Galligan to 

place this document with her copy of the Trust. She can verify my 

handwriting.” Galligan is Bertsch’s former estate attorney.

Bertsch died in late 2018. Thornton filed a petition in the probate court 

to confirm her appointment as successor trustee. She contended the 

2016 amendment, which named Haggerty as trustee in the event of Bertsch’s 

death, had been revoked. But she believed the 2017 beneficiary list and 

2018 amendments were valid. 

Haggerty filed a competing petition to determine the validity of the 

2016 amendment, the 2017 beneficiary list, and the 2018 amendment. She 

argued the trust agreement required that any amendment be acknowledged 

by a notary public or other specified person under the Civil Code. She 

maintained that the 2016 amendment had been validly acknowledged, but 

the 2017 beneficiary list and 2018 amendment had not. Haggerty requested 
4

a declaration to that effect, as well as an order recognizing that she was the 

successor trustee, not Thornton. 

Haggerty also filed objections to Thornton’s petition to confirm her 

appointment. Several beneficiaries filed their own objections to Haggerty’s 

petition. At a hearing, the court requested supplemental briefing on the 

issue of whether the trust agreement allowed amendment in the manner 

attempted by the 2017 beneficiary list and 2018 amendment. 

In her brief, Haggerty continued to argue that the trust agreement 

required acknowledgment under the Civil Code. Relying primarily on King v. 

Lynch (2012) 204 Cal.App.4th 1186 (King), Haggerty reasoned that the trust 

agreement provided for a method of amendment, so that method must be 

followed in order to validly amend the agreement. Haggerty contended the 

2016 amendment was valid, because it was acknowledged, but the 

2017 beneficiary list and 2018 amendment were not. 

Galligan responded that the trust agreement’s use of the phrase 

“ ‘acknowledged instrument in writing’ ” was ambiguous. It could mean 

“expressly advis[ing] someone that the instrument amending the Trust was 

genuine or authentic,” rather than imposing the Civil Code requirements for 

acknowledgment. Galligan argued that the court was required to consider 

extrinsic evidence of Bertsch’s intent in using the phrase “ ‘acknowledged 

instrument’ ” to determine its meaning. Alternatively, Galligan contended 

the court could conclude the 2018 amendment was valid as a matter of law 

because the method of amendment specified in the trust agreement was not 

exclusive. Galligan distinguished King and suggested it was wrongly 
5

decided. UCS and Racquel Kolsrud filed briefs advancing similar 

arguments.1

After a further hearing, which was not reported, the probate court 

denied Haggerty’s petition. In a minute order, the court made the express 

finding that the 2018 amendment was a valid amendment to the trust 

agreement. Haggerty appeals. 

DISCUSSION

The Probate Code governs the revocation and modification of trusts, 

and subsequent statutory references are to that code. The parties dispute the 

meaning of its provisions. We consider the issue de novo. “The meaning and 

construction of a statute is a question of law, which we decide 

independently.” (B.H. v. County of San Bernardino (2015) 62 Cal.4th 168, 

189.) “The goal of statutory construction is to ascertain and effectuate the 

intent of the Legislature. [Citation.] Ordinarily, the words of the statute 

provide the most reliable indication of legislative intent. [Citation.] When 

the statutory language is ambiguous, the court may examine the context in 

which the language appears, adopting the construction that best harmonizes 

the statute internally and with related statutes. [Citations.] ‘ “Both the 

legislative history of the statute and the wider historical circumstances of its 

enactment may be considered in ascertaining the legislative intent.” ’ ” 

(Pacific Gas & Electric Co. v. County of Stanislaus (1997) 16 Cal.4th 1143, 

1152.)

1 Galligan’s brief also asserted that the 2016 amendment had been 

expressly revoked. It stated that Bertsch told Galligan she had a dispute 

with Haggerty in late 2017 and Bertsch had “destroyed the 

[2016 a]mendment with the intent to revoke it. Neither the original nor any 

copy of the [2016 a]mendment was found among [Bertsch’s] estate planning 

documents in her possession following her death and the original has never 

been found.” 
6

Section 15401, subdivision (a) provides that a revocable trust may be 

revoked either (1) “[b]y compliance with any method of revocation provided in 

the trust instrument” or (2) “[b]y a writing, other than a will, signed by the 

settlor or any other person holding the power of revocation and delivered to 

the trustee during the lifetime of the settlor or the person holding the power 

of revocation.” However, if the trust instrument “explicitly makes the method 

of revocation provided in the trust instrument the exclusive method of 

revocation,” the method in the trust instrument must be used. (Id., 

subd. (a)(2), italics added.)

Section 15401 changed the prior rule, which required that a trust 

instrument’s method of revocation must be used if it was either explicitly or 

implicitly exclusive. (Cal. Law Revision Com. com., West’s Ann. Prob. Code 

(2021 ed.) foll. § 15401; Huscher v. Wells Fargo Bank (2004) 121 Cal.App.4th 

956, 970 (Huscher).) “[W]e presume the change made was to require a 

statement of explicit exclusivity and thereby avoid the problems of 

interpretation inherent in determining issues of implicit exclusivity.” 

(Huscher, at p. 971, fn. 13.)

Section 15402 governs modification. It states, “Unless the trust 

instrument provides otherwise, if a trust is revocable by the settlor, the 

settlor may modify the trust by the procedure for revocation.” (§ 15402.) 

“This section codifies the general rule that a power of revocation implies the 

power of modification.” (Cal. Law Revision Com. com., West’s Ann. Prob. 

Code (2021 ed.) foll. § 15402.) 

In this appeal, as in the probate court, the parties focus heavily on 

King, supra, 204 Cal.App.4th 1186. In King, a married couple created a 

revocable trust. (Id. at p. 1188.) For jointly owned property, the trust 

instrument described separate procedures for modification and revocation. 
7

The trust could be modified “by an instrument in writing signed by both 

Settlors and delivered to the Trustee[.]” (Ibid.) The trust could be revoked 

“by an instrument in writing signed by either Settlor and delivered to the 

Trustee and the other Settlor[.]” (Id. at p. 1189.) After one spouse suffered a 

serious injury, the other spouse executed several amendments to the trust, 

without the first spouse’s signature. (Ibid.)

The majority opinion in King held that these amendments were invalid 

because they did not comply with the method of modification described in the 

trust instrument. (King, supra, 204 Cal.App.4th at p. 1194.) The majority

recognized that, under section 15401, a method for revocation must be 

explicitly exclusive to displace the statutory method. (Id. at p. 1192.) But it 

held that, under section 15402, a trust instrument need only “provide[]

otherwise” for its method of modification to be exclusive. (Ibid.) The King

majority explained, “The qualification ‘[u]nless the trust instrument provides 

otherwise’ indicates that if any modification method is specified in the trust, 

that method must be used to amend the trust.” (Id. at p. 1193.) Under prior 

law, “courts applied the rules governing trust revocations to trust 

modifications. However, when the Legislature enacted sections 15401 and 

15402, it differentiated between trust revocations and modifications. This 

indicates that the Legislature no longer intended the same rules to apply to 

both revocation and modification.” (Ibid.) To apply the same rules, the King

majority believed, would leave section 15402 as mere surplusage. (Ibid.)

The King majority concluded, “The trust specified a modification 

method and thus, under section 15402 the trust could only be amended in 

that manner. The settlors bound themselves to a specific method of 

modification. If we were to hold otherwise, especially where, as here, the 

amendment provision is more restrictive than the revocation provision, we 
8

would cause the amendment provision to become superfluous and would 

thereby thwart the settlors’ intent.” (King, supra, 204 Cal.App.4th at 

p. 1194.)

One justice in King disagreed. The dissenting opinion believed that the 

new, higher standard for exclusivity for revocation also applied to 

modification. (King, supra, 204 Cal.App.4th at p. 1194 (dis. opn. of 

Detjen, J.).) The dissent focused on the purpose of sections 15401 and 15402, 

which was to permit greater flexibility for the settlor of a revocable trust. (Id.

at pp. 1195-1196.) The dissent explained, “[T]he 1987 adoption of 

section 15401 in the terms proposed by the [California Law Revision 

Commission] reflected a clear legislative choice to change the existing law in 

favor of permitting greater flexibility for the settlor, and rejecting the rule 

that the majority here asserts, which would designate a method of 

modification as exclusive simply because it has been set forth in the trust 

instrument.” (Id. at p. 1196.) The dissent continued, “[P]rior to 1987, 

modification of a trust was viewed as merely one aspect of the more inclusive 

power to revoke a trust. [Citation.] In recommending the 1987 revisions to 

the law of trusts, however, the Commission set forth explicitly the nature of 

the implied power of modification: ‘Under general principles the settlor, or 

other person holding the power to revoke, may modify as well as terminate a 

revocable trust. [Fn. omitted.] The proposed law codifies this rule and also 

makes clear that the method of modification is the same as the method of 

termination, barring a contrary provision in the trust.’ ” (Ibid.)

“In summary, section 15401 was written specifically to change the 

restrictive rule adopted in [prior caselaw]. [Citation.] And section 15402 was 

added, not to establish a different rule from section 15401, as the majority 

asserts [King, supra, 204 Cal.App.4th] at pp. 1192-1193 (maj. opn.), but in 
9

order to adopt the same flexible rule for modifications as for revocations 

unless ‘bar[red]’ by ‘a contrary provision in the trust’ [citation] or, in the 

language of statute, ‘[u]nless the trust instrument provides otherwise’

(§ 15402). . . . Nothing in the Commission’s comments on sections 15401 and 

15402 supports the position that, even though [the prior rule] should not 

apply to revocations (§ 15401), it should, as the majority asserts, apply to 

modifications under section 15402.” (King, at p. 1196 (dis. opn. of Detjen, J.).)

The King dissent found support in Huscher, supra, 121 Cal.App.4th at 

pages 960 through 963, which examined both current and prior law. (King,

supra, 204 Cal.App.4th at p. 1197 (dis. opn. of Detjen, J.).) “The trust 

instrument in Huscher provided that the trustor ‘ “may at any time amend 

any of the terms of [the] trust by an instrument in writing signed by the 

Trustor and the Trustee.” ’ [Citation.] The Huscher court found that this 

provision did not provide explicit exclusivity, that is, the language did not 

expressly preclude the settlor from using alternate statutory methods to 

modify the trust instrument.” (Ibid.) The dissent explained that Huscher 

was inconsistent with the interpretation of section 15402 advanced by the

King majority: “Instead, Huscher specifically stated, in reference to 

section 15402, ‘Under the current law, the statutory procedure for modifying 

a trust can be used unless the trust provides a modification procedure and 

explicitly makes that method exclusive.’ ” (King, at p. 1197, quoting Huscher, 

at p. 967.) (The King majority responded that the discussion of section 15402 

in Huscher was dicta and unpersuasive, see King, at p. 1193, fn. 3.)

The King dissent concluded that the trust instrument at issue “did not 

explicitly exclude use of the alternative statutory method for modification or 

revision” so the statutory method was available. (King, supra, 
10

204 Cal.App.4th at p. 1198 (dis. opn. of Detjen, J.).) Because the 

amendments complied with the statute, they were valid modifications. (Ibid.)

We do not need to comment on King’s interpretation of its trust 

instrument. The language of that instrument differs significantly from the 

language of the trust agreement here. Nor do we need to consider whether 

King was ultimately correctly decided on its facts. But, as a general matter, 

we conclude the King dissent more accurately captures the meaning of 

section 15402 than the majority opinion. Section 15402 cannot be read in a 

vacuum. It does not establish an independent rule regarding modification. It 

recognizes the existing principle that “a power of revocation implies the 

power of modification.” (Cal. Law Revision Com. com., West’s Ann. Prob. 

Code, supra, foll. § 15402.) The method of modification is therefore the same 

as the method of revocation, “[u]nless the trust instrument provides 

otherwise,” i.e., unless the trust instrument distinguishes between revocation 

and modification. (§ 15402.) The California Law Revision Commission made 

this point explicit: “ ‘Under general principles the settlor, or other person 

holding the power to revoke, may modify as well as terminate a revocable 

trust. [Fn. omitted.] The proposed law codifies this rule and also makes 

clear that the method of modification is the same as the method of 

termination, barring a contrary provision in the trust.’ ” (King, supra, 

204 Cal.App.4th at p. 1196 (dis. opn. of Detjen, J.), quoting Selected 

1986 Trust and Probate Legislation (Sept. 1986) 18 Cal. Law Revision Com. 

Rep. [1986] p. 1271.) Under this interpretation, section 15402 is not mere 

surplusage, as the King majority believed. As the California Law Revision 

Commission’s comment explains, it codifies the existing rule that the power 

of revocation includes the power of modification, thus an available method of 

revocation is also an available method of modification—unless the trust 
11

instrument provides otherwise. (See Cal. Law Revision Com. com., West’s 

Ann. Prob. Code, supra, foll. § 15402.)

With these principles in mind, we turn to the language of the trust 

agreement at issue here. “The primary duty of a court in construing a trust 

is to give effect to the settlor’s intentions.” (Barefoot v. Jennings (2020) 

8 Cal.5th 822, 826.) Where, as here, interpretation of the instrument does 

not depend on disputed extrinsic evidence, we consider the issue de novo. 

(Gardenhire v. Superior Court (2005) 127 Cal.App.4th 882, 888.)

The language of Bertsch’s trust agreement does not distinguish 

between revocation and modification. It reserves the following right to the 

settlor: “The right by an acknowledged instrument in writing to revoke or 

amend this Agreement or any trust hereunder.” Because the trust does not 

distinguish between revocation and modification, it does not “provide 

otherwise” than the general rule, and under section 15402 the trust may be 

modified by any valid method of revocation. Moreover, as a reservation of 

rights, it does not appear Bertsch intended to bind herself to the specific 

method described in the trust agreement, to the exclusion of other 

permissible methods. Because the method of revocation and modification 

described in the trust agreement is not explicitly exclusive (and no party 

argues otherwise), the statutory method of revocation was available under 

section 15401. (See Masry v. Masry (2008) 166 Cal.App.4th 738, 742 

[reservation of rights not explicitly exclusive].) Bertsch complied with the 
12

statutory method by signing the 2018 amendment and delivering it to herself 

as trustee. It was therefore a valid modification of the trust agreement.2

Finally, in her opening brief, Haggerty requests that we find the 

2016 amendment valid under the method of amendment specified in the trust 

agreement. It does not appear the probate court addressed this issue. Our 

decision is without prejudice to whatever contentions the parties may make 

regarding that amendment.

2 Again, we need not and do not consider the situation in King, where the 

trust instrument did distinguish between methods for revocation and 

modification and imposed an arguably more stringent requirement on 

modification. The circumstances here are materially different. This appeal is 

also distinguishable from Pena v. Dey (2019) 39 Cal.App.5th 546, 552, where 

the court cited King and found that the method of amendment described in 

the trust instrument governed. The method of amendment described in the 

trust instrument was the same as the statutory method under the 

circumstances, so the issue was not clearly presented. (Compare id. at 

pp. 552, 551 [amendment “ ‘shall be made by written instrument signed by 

the settlor and delivered to the trustee’ ”] with § 15401, subd. (a)(1) 

[revocation made “[b]y a writing, other than a will, signed by the settlor or 

any other person holding the power of revocation and delivered to the 

trustee”].) Haggerty’s reliance on this court’s opinion in Conservatorship of 

Irvine (1995) 40 Cal.App.4th 1334 is likewise unpersuasive for the reasons 

discussed in Huscher, supra, 121 Cal.App.4th at pages 966 through 967 and 

footnote 13.
13

DISPOSITION

The order is affirmed. The parties shall bear their own costs on appeal.

GUERRERO, J.

WE CONCUR:

McCONNELL, P. J.

DATO, J.