Month: January 2014

PROPERLY DRAFTING A WILL TO DEVISE TRUST ASSETS

Before drafting a will, the testator, i.e., the person who owns the assets that will be distributed after his or her death, must fully understand any restriction placed on the alienation of his or her assets.  A testator might erroneously believe he or she has the power to devise an asset as he or she wishes and be left with an unenforceable bequest.  Such was the case of Sally Christiansen.

In Cessac v. Stevens, No. 1D12-5834, 2013 Fla. App. LEXIS 18525 (Fla. 1st DCA November 20, 2013), the decedent, Ms. Christiansen, devised the remainder of her estate to Joanne Cessac.  Through her will, Ms. Christiansen essentially disinherited her two children.  When she died, Ms. Christiansen was the beneficiary of three trusts all of which were created by her father.  Normally, the assets in those trusts would be devised to whomever Ms. Christiansen wished in compliance with her will.  In this case, Ms. Christiansen intended that the assets in those trusts be devised to Ms. Cessac.  The district court, however, found that the assets in those trusts must be distributed to Ms. Christiansen’s children, not to Ms. Cessac.

A person creating a trust may place restrictions on the disposition of the trust’s property.  Ms. Christiansen’s father included the following restriction on the trusts:

“Upon the death of my daughter, [Ms. Christiansen], the Trustees shall transfer and deliver the remaining principal of this share of the trust, … as my daughter may, by her will, appoint, making specific reference to the power herein granted.

If [Ms. Christiansen] … dies without exercising the power of appointment granted herein, [her] share of this trust shall be divided into equal shares so that there shall be one share for each child of [Ms. Christiansen]….”  Cessac, 2013 Fla. App. LEXIS 18525, at *2.

All three trusts included identical wording.  Ms. Christiansen’s will included only the following provision regarding those trusts:  “Included in my estate assets are the STANTON P. KELLER TRUST . . . and two (2) currently being held at Northern Trust of Florida in Miami, Florida.”  Her will therefore did not make “specific reference to the power” granted by the trusts to devise her share of the trusts through her will.  Because Ms. Christiansen made no reference to the power granted by the trusts to devise the trust assets, the trust assets must be devised as the trusts’ creator originally intended: “divided into equal shares” and distributed to Ms. Christiansen’s children.

The district court recognized that this was a harsh result.  However, the court also noted that such a result was a function of the intent of the original donor, i.e., Ms. Christiansen’s father.  Even though Ms. Christiansen intended that those assets be devised to Ms. Cessac, the intent that matters in this case is that of Ms. Christiansen’s father, who intended that Ms. Christiansen make “specific reference to the [appointment] power” if she were to devise her interest in the trusts by will.  Ms. Christiansen failed to make such reference.  The court further found that compliance with the trusts’ requirements would not have been difficult because “all that was necessary was some reference to powers of appointment in the [Ms. Christiansen]’s will.” Cessac, 2013 Fla. App. LEXIS 18525, at *14.

This case serves as a cautionary tale to both attorneys and those in the process of estate planning.  It is important that the person drafting a will understand the nature and intricacies of the testator’s assets and restrictions thereon.  In the case of Ms. Christiansen, because her attorney failed to ensure that her will complied with the trusts’ requirements, Ms. Christiansen’s shares in the trusts were not hers to devise upon her death.  It is therefore important that a testator consult with a thorough probate and trust attorney when drafting his or her will.

Florida Probate Attorney Peter T. Mavrick represents clients in probate, trust, and guardianship litigation.  This article is not a substitute for legal advice tailored to a particular situation.  Peter T. Mavrick can be reached at: Website: www.mavricklaw.com; Telephone: 954-564-2246; Address: 1620 West Oakland Park Boulevard, Suite 300, Fort Lauderdale, Florida 33311; Email: peter@mavricklaw.com.

RECENT DEVELOPMENTS REGARDING HOLOGRAPHIC WILLS UNDER FLORIDA LAW

The right to testamentary disposition of property is a right protected by the Florida Constitution.  To be valid under Florida law, a will must satisfy certain formalities: the will must be (1) in writing, (2) signed by the testator at the end of the will (or at the direction and presence of the testator), and (3) signed by two attesting witnesses in the presence of the testator and in the presence of each other.  However, Florida law will generally recognize a foreign will as valid if the will is valid under the laws of the state or country where the will was executed even if it does not strictly conform to the Florida formalities.  One major exception of this general rule is in the case of holographic wills.

A holographic will is a will that is hand-written by the testator and is not signed by witnesses.  Some states recognize holographic wills as valid under certain conditions particular to each state.  For example, Colorado will recognize a holographic will as valid if the signature and material portions of the document are in the testator’s handwriting.  Whereas, North Carolina will only recognize a holographic will as valid if the entire will is hand-written by the testator.

However, Florida law will not admit a holographic will into probate if it does not satisfy the required formalities under Florida law even if such will is valid in the state in which it was executed.  Florida law requires two witnesses to a will to assure the will’s authenticity and avoid fraud.  Under Florida law, holographic wills are not as reliable as wills that are executed in the presence of two witnesses.

In a recent case, a Florida district court refused to recognize a holographic will from Colorado that was valid under Colorado law.  Lee v. Estate of Payne, 38 Fla. L. Weekly D 1969 (Fla. 2d DCA Sept. 18, 2013).  In Lee, a testator, Mr. Payne, hand-wrote a will leaving real property located in Florida to his fiancée, Ms. Lee.  The will was executed in Colorado, a state that recognizes holographic wills as valid.  Because Mr. Payne’s will was not signed by two witnesses in the presence of each other, the Florida trial court refused to admit the will into probate.  Thus, Mr. Payne’s property located in Florida had to pass, through intestacy, to his estate’s only beneficiary: his minor daughter.  Ms. Lee challenged the Florida law as unconstitutional.  The district court held that it was bound by legal precedent to uphold the validity of the statute and affirm the trial court’s refusal to admit the will into probate.

The Lee case highlights the pitfalls that one may encounter due to differing state laws.  If a will includes real property located in Florida, or if the testator moves to Florida from another state, the best course of action is to have a Florida probate attorney verify that the will is valid and enforceable under Florida law.

Florida probate attorney Peter T. Mavrick represents clients in probate, trust, and guardianship litigation.  This article is not a substitute for legal advice tailored to a particular situation.  Peter T. Mavrick can be reached at: Website: www.mavricklaw.com; Telephone: 954-564-2246; Address: 1620 West Oakland Park Boulevard, Suite 300, Fort Lauderdale, Florida 33311; Email: peter@mavricklaw.com.