CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 2016 Fla. App. LEXIS 9229, 2016 WL 3265760
...granting summary judgment and the subsequently issued Final Declaratory
Judgment in favor of the appellee, Christiane E. Marin, the successor trustee of
Zintgraff’s Revocable Living Trust (“Trust”). The trial court’s decision is based
on its interpretation of section 736.0602(3), Florida Statutes (2008), and
conclusion that Zintgraff’s later-executed Will did not validly revoke her earlier
Trust....
...and Zintgraff’s real property and the Wells Fargo account remained Trust assets to
be disbursed according to the Trust.
Analysis
This appeal presents an issue of first impression, namely the interpretation
of section 736.0602(3), “Revocation or amendment of revocable trust,” which
provides as follows:
(3) Subject to s....
...according to the terms of the trust; or
2. Any other method manifesting clear and convincing evidence
of the settlor’s intent.
It is undisputed that the Trust did not provide a method for revocation and
thus subsection (a) of section 736.0602(3) does not apply....
...It is also undisputed
that Zintgraff’s later Will did not name or expressly refer to the Renee Maria
Zintgraff Revocable Living Trust or specifically devise her real property or the
Wells Fargo account to Bernal, and therefore, the Will did not comply with
subsection (b)(1) of section 736.0602(3)....
...Genova created the revocable trust in question, she “reserved the absolute right to
revoke if she were not incompetent. In order for this to remain a desirable feature
of a trust instrument, the right to revoke should also be absolute.” Id. at 898.
Prior to the enactment of section 736.0602(3) in 2008, there was no statutory
mechanism to revoke a trust, but under the common law and section 330(1) of the
Restatement of Trusts (Second), the settlor’s intent was the polestar for
determining whether a revocation of the...
...4th DCA 1984) (holding
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that “the settlor’s intention is the polestar by which courts must be guided in
determining whether a revocation of an inter vivos trust has occurred”).
The enactment of section 736.0602(3) has simplified the process somewhat.
If the trust provides for a specific method for revocation or if a later will or codicil
specifically references the trust and/or specifically devises the property that would
have passed und...
...the settlor’s
intent is needed to revoke the trust. To revoke or amend a trust without having to
prove the settlor’s intent, the settlor need only substantially comply with the
method provided in the terms of the trust for revoking the trust, § 736.0602(3)(a),
or execute “[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,” § 736.0602(3)(b)(1).
However, if either of these two options are not available because either the
trust did not specify a method for revocation or there is no later will or codicil that
complies with section 736.0602(3)(b)(1), then “[a]ny other method manifesting
clear and convincing evidence of the settlor’s intent” may be utilized. §
736.0602(3)(b)(2). In other words, section 736.0602(3) established two methods to
revoke or amend a trust that if complied with require no evidence of the settlor’s
intent, and retained the “any other method” mechanism for revocation or
amendment of a trust previously found in section 330(1) of the Restatement of
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Trusts (Second). However, if the “any other method” under section
736.0602(3)(b)(2) is alleged, the proponent must not only prove the settlor’s intent,
he must do so by clear and convincing evidence.
Thus, based on the clear language of section 736.0602(3), the Florida
Legislature has: (1) reduced the burden of establishing a revocation or amendment
of a trust if the trust provides for a method to revoke or amend or if a later will or
codicil complies with the specific requirement of section 736.0602(3)(b)(1); and
(2) increased the burden when neither of these methods is available by requiring
clear and convincing evidence of the settlor’s intent.
The trial court concluded that the Will, as written, does not and cannot...
...Bernal. Zintgraff was clear and
unequivocal when she met with Saba and spoke with Tacon, her friend of forty-
four years, that she wanted to revoke her Trust and leave all of her possessions to
Bernal. However, because the trial court interpreted section 736.0602 to preclude
consideration of evidence manifesting Zintgraff’s intent under section
736.0602(3)(b)(2), this evidence was not considered.
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Such an interpretation of the statute is contrary to the plain language of the
statute, the Restatement of Trusts (Second), years of law regarding revocation and
amendments to revocable trusts, and logic. Section 736.0602(3)(b)(2) provides
that a trust may be revoked or amended by “[a]ny other method manifesting clear
and convincing evidence of the settlor’s intent.” See also Macfarlane v....
...r entities listed in her Trust, but,
instead, wanted to leave everything to Bernal, or she had scribbled the exact same
thing on a napkin or a piece of paper and left it in her dresser drawer, then clearly,
the “any other method” provision of section 736.0602(3)(b)(2) would be applicable
and evidence of Zintgraff’s intent would be admissible....
...Zintgraff’s intent would be honored. But, under the trial court’s interpretation, a
will drafted by a lawyer that was then executed by the testator, witnessed and
notarized and that says the same thing, may not be considered.
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
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with the method provided in the terms of the trust, or under subsection (3...
