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. 

Comments

Post a Comment

Popular posts from this blog

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 stamped the will.  The testator
Read more

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

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, &quo
Read more