Cessac v. Stevens

Cessac v. Stevens, 2013 WL 6097315 (Fla. 1st DCA 1013)

We don't often see cases regarding the exercise of a power of appointment but the First DCA recently addressed the validity of such an exercise in this case.  The will at issue included a provision that stated:

"Included in my estate assets are the STANTON P. KETTLER TRUST, FBO, SALLY CHRISTIANSEN, under will dated July 30, 1970, currently held at the Morgan Stanley Trust offices in Scottsdale, Arizona, and two (2) currently being held at Northern Trust of Florida in Miami, Florida."

Other than the quoted language, the will did not mention the trusts or mention any powers of appointment. The trusts described contained powers of appointment which authorized the decedent to direct who would receive the trusts assets upon her death.  The trusts required her to make specific reference to the power in order to exercise it.     

The trial court entered a judgment declaring the trusts' assets were not the property of the decedent's estate, since the decedent's will did not include a valid exercise of the power of appointment provided in the trusts because it failed to reference the power of appointment in the trusts as required by the grantor.

Before this case was decided, there was only one Florida case dealing with a similar power of appointment- Talcott v. Talcott, 453 So.2d 951 (Fla. 3d DCA 1982) (Thanks for the fix Jeff!).  In Talcott, the court held that the holder of a power of appointment did not properly exercise his power in accordance with the requirements of the trust and that evidence of the power holder's intent was immaterial in light of his failure to comply with the specific reference requirements of the trust.

Here, the will went a step farther than the will in Talcott, since it at least mentioned the trusts, but the Court held that it still was not enough.  The Court said that the question of whether a donee has validly exercised a power of appointment does not depend on the intent of the donee, but on whether the power was exercised in the manner prescribed by the donor.

Appellants urged the Court to adopt an equitable construction standard and construe the "specific reference" requirements in the trusts to demand only reasonable substantive compliance.  In doing so, they cited to several out-of-state decisions that required only reasonable compliance with the terms of the power of appointment.  The Court held these cases to be distinguishable, since here, the decedent's will did not include even a general reference to the powers of appointment held by the decedent, just a reference to the trusts.

Appellants also argued that the terms of the will met the requirements of F.S. 732.607.  The Court agreed with the Talcott Court, and explained that if the trust contains no specific limitation on the manner of executing the power, then other evidence that the power had been executed may be considered to determine intent.


Comments

Post a Comment

Popular posts from this blog

Goodstein v. Goodstein

Goodstein v. Goodstein ,  263 So.3d 78 (Fla. 4th DCA 2019) I started this blog in 2013, and this is the first time I have the opportunity to write about a case that I am actually involved in. This case involves a long-running dispute between the father of the decedent, the personal representative of the estate, and the decedent's children, the beneficiaries of the estate (the personal representative's grandchildren). The personal representative appealed a decision by the trial court which required all estate assets to be placed in a restricted depository. Restricted depositories have been common-place in Miami-Dade County for quite some time. Recently, South Palm Beach County has instituted as similar requirement. As a matter of course, all estates opened since the introduction of this policy have been required to place all assets in a restricted depository and assets may only be withdrawn with a court order. Here, the beneficiaries had concerns about their actions a...
Read more

Malleiro v. Mori, Mori and Corallo

Malleiro v. Mori , 182 So.3d 5 (Fla. 3d DCA 2015) This case serves as a lesson in rarely used words buried in the Florida Probate Code.  The Court was asked to determine whether an unsigned notarial will executed in Argentina was a valid will under the Florida Probate Code.  The Court ultimately held that because the Argentine will was unsigned, even though it was a notarial will, it was a noncupative will prohibited by the Florida Probate Code. The testator executed a valid will in New York distributing her real and personal property located in the United States.  Four months later, she executed a second will in Argentina.  The Argentine will was not executed with the usual formalities of American wills.  Instead, the testator orally pronounced her testamentary wishes to a notary who transcribed them in the presence of three witnesses.  The testator orally approved the typewritten will in the presence of the witnesses, and the notary signed and st...
Read more

Cantero v. Estate of Caswell

Cantero v. Estate of Caswell , --- So.3d --- (Fla. 3d DCA 2019) This decision involves an appeal of a trial court's order striking a claim as untimely. The claimant argued that his claim was timely because he was a reasonably ascertainable creditor who was not served with notice. The Court disagreed. The claimant argued that the estate should have known about his claim based on several conversations he had with the personal representative and the personal representative's attorneys. He was claiming an ownership interest in the decedent's real property because he paid for the property and paid the mortgage premiums over 20 years prior to the decedent's death for a 5 year period of time while he has in a relationship with the decedent. In his calls to the personal representative, the claimant apparently only mentioned that he had left some car parts in the garage and never said anything about an ownership interest in the property. He argued that he inquired, ...
Read more