Background
David and Donna Kramer created a revocable trust in 2011 that named their sons Mark and Michael as beneficiaries. Michael was to receive a one-half interest in the parents’ Teal Avenue property, while Mark was to receive the other half and three additional properties. In 2016, David and Donna signed an amendment removing Michael as a beneficiary and directing that the Teal Avenue property pass to Mark.
A paralegal in the Kramers’ attorney’s office witnessed the amendment and purported to notarize their signatures, but her notary commission had expired. After Mark became trustee and began transferring trust properties to himself, Michael sued to suspend and remove him as trustee and to restore the properties to the trust. Michael contended that the defective notarization invalidated the amendment, leaving him a beneficiary with standing to challenge Mark’s conduct. The circuit court granted summary judgment to Mark and dismissed the case.
The Court’s Holding
The Wisconsin Court of Appeals affirmed. The trust required an amendment to be in writing, delivered to the trustee, and signed with the settlors’ signatures “acknowledged.” It did not require notarization. Because another trust provision expressly required a “signed, notarized document,” the court concluded that David and Donna used “acknowledged” and “notarized” to impose different requirements.
The court further held that notarization is one method of acknowledging or authenticating a document, but not the only one. The paralegal’s affidavit stated that she knew David and Donna, confirmed their identities, determined that they signed knowingly and voluntarily, and personally witnessed their signatures. That evidence authenticated the amendment under Wisconsin law and established substantial compliance with the trust’s amendment procedure. The paralegal’s expired commission meant only that the amendment was not self-authenticating as a notarized document.
Whether the signatures were legally acknowledged presented a question of law suitable for summary judgment. Because the amendment was valid, Michael was no longer a beneficiary or interested person and lacked standing to challenge Mark’s actions as trustee.
Key Takeaways
- A trust provision requiring signatures to be “acknowledged” does not necessarily require notarization.
- Witness testimony or an affidavit based on personal knowledge can authenticate signatures even when an attempted notarization is defective.
- Different terms used within the same trust document may signal different execution requirements.
- A person validly removed as a trust beneficiary lacks standing as an interested person to challenge the trustee’s conduct.
Why It Matters
The decision distinguishes a document’s authentication from its notarization. A lapsed notary commission does not automatically invalidate a trust amendment when other competent evidence establishes the identities of the signers, the voluntary nature of their acts, and the authenticity of their signatures.
The unpublished per curiam opinion also underscores the importance of the trust’s precise amendment language: courts will enforce the procedure the settlors actually selected rather than add a notarization requirement found elsewhere in the instrument.