Bernal v. Marin

Bernal v. Marin, 196 So.3d 432 (Fla. 3d DCA 2016)

This decision addresses the validity of a purported trust revocation under F.S. 736.0602.  The Court, interpreting the plain language of F.S. 736.0602 and the legislative history, found that a revocable trust can be revoked without a specific reference to the trust where there is clear and convincing evidence that the settlor intended to revoke the trust.

Here, the decedent executed a trust leaving her estate to charity.  The trust did not provide a method for revocation.  She later executed a will leaving her estate to a friend, which stated that it revoked all other trusts made by her.  The will did not specifically refer to the trust.

F.S. 736.0602 provides that a settlor may amend or revoke a trust:
(a) By substantial compliance with a method provided in the terms of the trust; or
(b) If the terms of the trust do not provide a method, by:
        1. 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
        2. Any other method manifesting clear and convincing evidence of the settlor’s intent.

The trial court held because the will did not specifically refer to the trust or specifically devise the property, the will did not revoke the trust.  The Appellate Court reversed.  It interpreted F.S. 736.0602 as follows:

"Based on the plain language of section 736.0602(3) and sheer logic, a settlor may revoke or amend a trust under subsection (3)(a) by substantially complying with the method provided in the terms of the trust, or under subsection (3)(b)(1), if the terms of the trust do not provide a method, by executing a later will or codicil that expressly refers to the trust or specifically devises the property that would otherwise have passed according to the terms of the trust.  Under these two methods, no further evidence is required.  However, if the settlor revokes or amends his or her trust under the 'any other method' provision under subsection (3)(b)(2), then the settlor's intent must be established by clear and convincing evidence."

The Court found that the will, the testimony of the drafting attorney and an affidavit submitted by a friend and close confidant of the decedent amounted to clear and convincing evidence of the settlor's intent to revoke the trust. 

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