We represented two daughters of an elderly mother who was, unfortunately, suffering from advanced dementia and was confined to a nursing home facility. The father had predeceased the mother, and the family had a marital trust naming the two daughters as the remainder beneficiaries and if they did not survive to the daughters' issue. The income of the marital trust paid for all of the expenses of the mother. The problem was that the successor trustee of the trust was a third party individual who was mishandling the administration of the trust and was generally hostile to the daughters.

We commenced a petition for removal and a petition for guardian ad litem for the mother. The Court granted the petition for guardian ad litem and named a court appointed Guardian.

Now that the elderly mother had a Guardian Ad Litem, it seemed that under the laws of modification, the mother, through her Guardian, could modify the trust in order to appoint a different trustee.

Under Probate Code Section 15403, if all beneficiaries of an irrevocable trust consent, they may compel modification of an otherwise irrevocable trust on petition to the Court. The mother, through her Guardian Ad Litem, and the remainder beneficiaries all consented to the modification to name a different trustee.

Under Probate Code Section 15405 (Consent by Guardian Ad Litem), the consent of a beneficiary who lacks legal capacity may be given in proceedings before the court by a guardian ad litem.

The modification of a trust had to overcome several hurdles. We had to prove to the court that the remainder beneficiaries' interest in the Trust was identical to those of their children and unborn issue, and, therefore, such unborn issue were adequately represented by the remainder beneficiaries and no guardian ad litem was needed for the unborn issue.

Under the Probate Code, we had to prove that the Guardian Ad Litem was persuaded of the "general family benefit accruing to living members of the beneficiary's family as a basis for approving a modification . . . of the trust."  We were also required to show that the modification would benefit the life beneficiary herself.

The petition for modification was pursuasive and the trustee resigned before the court decided the issue.

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