A revocable trust is in many ways like a will, as both can direct the transfer of property on death. When someone wants to revoke a will, the law provides many ways to do so, including destroying the will and throwing away the will. Indeed, if the original of a will cannot be found, Florida law presumes that the will was destroyed with the intent to revoke it. A revocable trust is trickier, especially if the trust was funded by the settlor during death. How do you revoke a revocable Trust in Florida?
The case of Bernal v. Marin, 2016 Fla. App. Lexis 9229 (3rd DCA 2016), sets forth the three ways in which the settlor of a trust can revoke a trust, reversing the lower court which misapplied the governing statute.
The Facts of The Case
The Settlor of the trust, Zintgraff, prepared a trust and funded the trust with real estate and a brokerage account. Some years later, Zintgraff decided to make a new estate plan with different beneficiaries, this time using a will instead of a trust.
The new will stated that
[I] declare this to be my Last Will and Testament, revoking all other wills, trust and codicils previously made by me.
The original trust had no instructions in the trust for how to revoke it. At issue was whether the language in the trust as well as some additional evidence, was sufficient to revoke the trust. In a case of first impression, the appellate court clarified how the trust revocation statute is to operate.
How Do You Revoke a Revocable Trust?
Section 736.0602(3), entitled “Revocation of amendment of revocable trust,” states three ways to revoke a revocable trust:
(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.
The trust did not provide for a method of revocation, so Section 736.0602(3)(a) did not apply.
Express Reference By A Later Will or Codicil
The later will did not expressly refer to the prior revocable trust, so section (b)(1) of Section 736.0602(3) did not apply, there being merely a generic reference to the revocation of all prior trusts prepared.
Any Other Method Manifesting Clear and Convincing Evidence of the Settlor’s Intent
The interesting issue in the case, as set forth by the court, was:
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).
In other words, is the catch-all method to revoke a trust, where there is clear and convincing evidence of the intent to revoke, not available where the testator apparently attempted to revoke the old trust with a new will, but did not do so properly. The court concluded that the catch-all method was available, even though the testator had failed to comply with the literal requirement for revoking an early trust with a new will.
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 [*15] by clear and convincing evidence.
There was ample evidence presented at summary judgment that the testator had intended to revoke the trust, including statement from her attorney and friends about her intent to revoke the trust. The appellate court accordingly reversed and held the trust validly revoked.