Next, the court examined whether Mary’s writings expressed an intent to amend the trust by the writings themselves.
Before determining what Mary intended by the language stated in the writings, it must “appear that [the] decedent intended to make a testamentary disposition by that particular paper, and if this cannot be shown it is immaterial that [her] testamentary intentions were … in conformity with [the requirements of the trust].”
In other words, before the court examines what the language in the writing means, the court must look at the intent with which it was executed to determine if the settlor “intended that the trust be amended by the writing itself, and not by some subsequent document.” To show intent, “it must satisfactorily appear that the maker of the instrument intended by the very paper itself to make a disposition.”
Both the language and the context of Mary’s writings alone and taken together show they were “drafted in anticipation of a formal agreement” to happen at some future time. Mary’s email to her son said that she was clear as to “how to move forward on the house and will,” that she would write it out, and that they needed to get it to the lawyer to “start redoing the will and trust.” Mary stated a desire to leave nothing to Van Dyck, but the email as a whole indicated that Mary would make a formal amendment with the attorney in the future.
Mary’s son’s email to the attorney was also anticipatory in nature. He stated that Mary wanted to “make some updates on her personal stuff” and asked when the attorney was available to meet to discuss. The emails notified the attorney that Mary wanted to make some changes and further discuss those changes, which contradicts the notion that the emails themselves were intended to serve as an amendment to the trust.
Furthermore, the attorney’s response shows that he thought Mary and her son’s request was one for future action “relative to any updates/amendments Mary wants to make to her Trust … maybe we can schedule a phone conference.”
Mary’s response requesting the questionnaire shows that she knew there was another step in the process and that she anticipated speaking to the attorney at least one more time. Once again, the attorney anticipated further action to effectuate a trust amendment when he asked Mary to “indicate the changes you want to make” on the questionnaire and they “could schedule a time to talk” to review the questionnaire. This supports the notion that the questionnaire was to aid in the process of amending the trust.
The questionnaire itself also supports the notion that Mary lacked the intent for it to serve as a trust amendment — the “Dispository Plan,” which was supposed to “describe in detail” the intended dispositions upon death, was left blank. In addition, Mary left notes that she wanted to “discuss” certain items and that she would “prefer” to drop Van Dyck “if possible.”
According to the court, “The precatory nature of these handwritten notes supports the conclusion that Mary did not intend for the questionnaire to be a final amendment of the Trust.”
