Bernal v. Marin

196 So.3d 432

Oscar F. BERNAL, individually and as Personal Representative of the Estate of Renee Maria Zintgraff, Appellant,

v.Christiane E. MARIN, as Trustee of the Renee Maria Zintgraff Revocable Living Trust dated October 15, 2004, Appellee.

No. 3D15–171.

District Court of Appeal of Florida, Third District.

June 15, 2016.

Rehearing Denied July 13, 2016.

Golden Glasko & Associates, P.A., and William H. Glasko, for appellant.

Sloto & Associates, P.L., and Seth S. Diamond, for appellee.

Before SUAREZ, C.J., and ROTHENBERG and SCALES, JJ.

ROTHENBERG, J.

Oscar F. Bernal, the named personal representative and beneficiary of Renee Maria Zintgraff's Last Will and Testament (“Will”), appeals the trial court's order 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. For the reasons that follow, we reverse.

Summary of the Underlying Facts

On October 15, 2004, Zintgraff executed the Trust naming herself as the initial trustee and her cousin, Marin, as the successor trustee. The Trust directed that upon Zintgraff's death, a specific bequest of $5,000 was to be distributed to her cousin, Lisa Cardozo, and the remainder of her Trust property was to be equally divided and distributed to the Zoological Society of Florida, Defenders of Wildlife, International Wolf Center, and Parrot Jungle of Miami. Zintgraff funded the Trust with her solely owned residence and with her Wells Fargo brokerage account, both of which were titled in the name of the Trust. It is undisputed that in the Trust, Zintgraff specifically reserved her right to revoke the Trust during her lifetime but that the Trust did not provide a method for revocation of the Trust.

Four years later, on November 8, 2008, Zintgraff met with Sara Saba, an attorney, and executed her Will appointing Bernal as her personal representative and devising all of her tangible personal property and residuary estate to Bernal. The Will reads in pertinent part, “I, RENEE MARIA ZINTGRAFF, a resident of Miami–Dade County, Florida, and a citizen of the United States, declare this to be my Last Will and Testament, revoking all other wills, trust and codicils previously made by me.” (emphasis added). Although Zintgraff's Will provides that she is revoking her “trust,” the Will does not name or specifically refer to the “Renee Maria Zintgraff Revocable Living Trust.”

Upon Zintgraff's death in 2013, Bernal filed an emergency petition for administration seeking to admit Zintgraff's Will to probate, and alleging that Zintgraff's real property and the Wells Fargo account were assets of the estate to be distributed pursuant to Zintgraff's Will. The Will was admitted to probate, and Bernal was appointed personal representative of Zintgraff's estate.

Thereafter, Marin filed a complaint seeking a temporary injunction and a declaratory judgment finding that the alleged revocation of the Trust in Zintgraff's Will was ineffectual and that the Trust remained valid. The parties conducted discovery; Marin filed a motion for summary judgment; and after conducting a hearing, the trial court granted Marin's motion and entered a Final Declaratory Judgment in favor of Marin. The trial court concluded that because Zintgraff's Will did not specifically name or expressly refer to the Trust or specifically devise her real property and the Wells Fargo account, the Will did not revoke the 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. 736.0403(2), the settlor may revoke or amend a revocable 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 the 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.

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). Instead, her Will simply devised all of her tangible personal property and residuary estate to Bernal and declared the Will “to be my Last Will and Testament, revoking all other wills, trust and codicils previously made by me.”

The question that must be answered in this appeal is whether Bernal may rely on subsection (b)(2) which allows for the revocation or amendment of a trust by “[a]ny other method manifesting clear and convincing evidence of the settlor's intent.” The trial court found that the “[a]ny other method” of revocation permitted under subsection (b)(2) does not include a will that fails to satisfy the requirements of subsection (b)(1). We conclude that such a narrow interpretation of the statute is in conflict with the purpose of revocable trusts and the plain language of the statute.

The Florida Supreme Court has specifically recognized that “[a] revocable trust is a unique type of transfer ... [and][s]ince [the settlor] is the sole beneficiary of the trust during [the settlor's] lifetime, [the settlor] has the absolute right to call the trust to an end and distribute the trust property in any way [the settlor] wishes.” Fla. Nat'l Bank of Palm Beach Cnty. v. Genova, 460 So.2d 895, 897 (Fla.1985) ; Siegel v. Novak, 920 So.2d 89, 95 (Fla. 4th DCA 2006) (holding that “[t]he central characteristic of a revocable trust is that the settlor ‘has the right to recall or end the trust at any time, and thereby regain absolute ownership of the trust property’ ”). It is this retention of control over the property which distinguishes a revocable trust from other types of conveyances. Genova, 460 So.2d at 897. Based on the uniqueness of revocable trusts, which includes the settlor's retention of control over the property and the settlor's absolute right to revoke his or her trust, the Florida Supreme Court concluded in Genova that even the principle of undue influence cannot defeat the settlor's revocation of a revocable trust. Id. at 897–98. The Court therefore concluded that when Mrs. 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 trust had occurred, and this intent was a question of fact to be resolved by the trier of fact.

Section 330(1) of the Restatement of Trusts (Second) provides:

(1) The settlor has the power to revoke the trust if and to the extent that by the terms of the trust he reserved such a power.

Comment (i) of section 330 of the Restatement of Trusts (Second) further states:

(i) Where no method of revocation specified. If the settlor reserves a power to revoke the trust but does not specify any mode of revocation, the power can be exercised in any manner which sufficiently manifests the intention of the settlor to revoke the trust.

Any definitive manifestation by the settlor of his intention that the trust should be forthwith revoked is sufficient....

See also Euart v. Yoakley, 456 So.2d 1327, 1329 (Fla. 4th DCA 1984) (holding 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 under the terms of the trust, then no determination of 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 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...