A. Unless the terms of a trust expressly provide that the trust is irrevocable, the settlor may revoke or amend the trust. This subsection does not apply to a trust created under an instrument executed before July 1, 2003.
B. If a revocable trust is created or funded by more than one settlor:
(1) to the extent the trust consists of community property, the trust may be revoked by either spouse acting alone but may be amended only by joint action of both spouses;
(2) to the extent the trust consists of property other than community property, each settlor may revoke or amend the trust with regard to the portion of the trust property attributable to that settlor's contribution; and
(3) upon the revocation or amendment of the trust by fewer than all of the settlors, the trustee shall promptly notify the other settlors of the revocation or amendment.
C. The settlor may revoke or amend a revocable trust:
(1) by substantial compliance with a method provided in the terms of the trust; or
(2) if the terms of the trust do not provide a method or the method provided in the terms is not expressly made exclusive, by:
(a) a later will or codicil that expressly refers to the trust or specifically devises property that would otherwise have passed according to the terms of the trust; or
(b) any other method manifesting clear and convincing evidence of the settlor's intent.
D. Upon revocation of a revocable trust, the trustee shall deliver the trust property as the settlor directs.
E. A settlor's powers with respect to revocation, amendment or distribution of trust property may be exercised by an agent under a power of attorney only to the extent expressly authorized by the terms of the trust or the power.
F. A conservator of the settlor or, if no conservator has been appointed, a guardian of the settlor may exercise a settlor's powers with respect to revocation, amendment or distribution of trust property only with the approval of the court supervising the conservatorship or guardianship.
G. A trustee who does not know that a trust has been revoked or amended is not liable to the settlor or settlor's successors in interest for distributions made and other actions taken on the assumption that the trust had not been amended or revoked.
History: Laws 2003, ch. 122, § 6-602; 2007, ch. 128, § 16.
ANNOTATIONSThe 2007 amendment, effective July 1, 2007, added Paragraph (3) of Subsection B.
Method of revocation. — Mere filing and service of a divorce petition do not constitute "clear and convincing evidence" of a settlor's intent to revoke a trust. Less formal methods of trust revocation are usually insufficient means to revoke a trust, "because they provide less reliable indicia of intent" than those methods outlined in either the terms of the trust or in the statutory language of the Uniform Trust Code. Oldham v. Oldham, 2011-NMSC-007, 149 N.M. 215, 247 P.3d 736.
Power of surviving spouse to amend community property trust. — Where husband and wife entered into a community property trust which reserved to the grantors the power to amend or revoke the trust by an instrument signed by the grantors and delivered in grantors' lifetimes to the trustee; the trust provided that the terms of the trust were to be liberally construed in favor of the surviving spouse's interests and above the interests of the other beneficiaries, that upon the death of one grantor, the surviving grantor had the unrestricted right to take any and all of the trust assets upon demand, that the surviving grantor had the right to redirect the distribution of the trust remainder in the surviving grantor's last will and testament, and that words used in the plural included the singular; and the attorney who drafted the trust stated that the trust was drafted to confer upon the surviving spouse the power to amend the trust after the death of one spouse, the trust granted to the surviving spouse the power to amend the trust after the death of the other spouse. Cable v. Wells Fargo Bank N.M., N.A., 2010-NMSC-017, 148 N.M. 127, 231 P.3d 108, aff'g on different grounds, 2008-NMCA-005, 143 N.M. 269, 175 P.3d 937.
Amendment by surviving grantor. — Where a trust is silent on amendment after the death of one of the grantors and provides that the surviving grantor has the unrestricted right to withdraw all assets from the trust estate, the power to amend the trust is implied. Cable v. Wells Fargo Bank N.M., N.A., 2008-NMCA-005, 143 N.M. 269, 175 P.3d 937, aff'd, 2010-NMSC-017, 148 N.M. 127, 231 P.3d 10.
Revocation of a trust by a will. — Where the decedent, during the decedent's lifetime, established a revocable trust which provided that in the event of the death of the decedent's spouse prior to the complete distribution of the spouse's share, the spouses' share would be distributed to the spouse's relative; Section 5.1 of the trust agreement provided that the decedent reserved the right during the decedent's lifetime to revoke the trust by an instrument signed by the decedent and delivered to the trustees; Section 5.1 did not expressly state that the requirements of Section 5.1 were the exclusive means by which the trust could be revoked; the spouse died one day before the decedent died; the decedent's will expressly referred to the trust and provided that the will revoked the trust and that the decedent's spouse's share of the trust passed onto the decedent's estate to be distributed as provided in the decedent's will, the trust was effectively revoked by the decedent's will. Schlicht v. Olguin, 2014-NMCA-074.
Law reviews. — For article, "The New Mexico Uniform Trust Code," see 34 N.M.L. Rev. 1 (2004).