3rd DCA’s Broad “Clear and Convincing Evidence” Standard for Revoking a Trust: Where Even a Napkin Will Suffice

There are various ways one can dispose of their estate when estate planning. Most commonly people have wills drafted, which devise their property to people they love, their family members, friends, charities and so forth. Another popular method people make sure that their assets are dealt with once they pass away is through a trust, in which has a trustee that manages the trust for the beneficiaries in accordance with the trust details. When dealing with wills and trust estate planning it can be very complex and sometimes there are situations where you find wills and trust being intertwined. This June, in the case 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 the Third DCA dealt with a matter of first impression regarding the interpretation of section 736.0602(3), “Revocation or Amendment of Revocable Trust,” involving the revocability of a revocable trust through a subsequent will.

Here, Zintgraff executed a REVOCABLE Trust in which she was the trustee and her cousin Marin was her successor trustee. In the trust she bequeathed $5,000 to her cousin Lisa Cardozo and the remainder of her Trust to various organizations in which she felt passionate about. The trust was funded with her only owned residence and her Wells Fargo brokerage account. The trust being a revocable trust allowed Zintgraff to revoke the trust, however, this trust did not provide any particular method to revoke the Trust.

After time had passed, four years later in 2008, Zintgraff met with a young new attorney Ms. Saba who helped Zintgraff executed her Will that appointed Bernal, who was an individual who had become very close to Zintgraff who stepped in and fulfilled the role as caretaker to Zintgraff, as her personal representative. The will devised all of Ms. Zintgraff’s tangible personal property and residuary estate to Bernal. This will contained very generalized language that declared the Will “to be my Last Will and Testament, revoking all other wills, trust and codicils previously made by me.”

   Under 736.0602(3), “Revocation or Amendment of Revocable Trust,” it provides that:

(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 settler’s intent.

Here, the Trust did not provide a method to revoke the trust and the subsequent ill did NOT EXPRESSLY refer to the trust or specifically devise the property that would otherwise have passed according to the terms of the trust. What is left for further analysis is where the law stands in regards to any other method manifesting CLEAR AND CONVINCING EVIDENCE of the settler’s intent. Clear and Convincing Evidence is a high burden to meet. The trial court held that Ms. Zintgraff did not meet such a burden. The Third DCA however did not agree and their analysis accepted a broad interpretation of what would satisfy that clear and convincing standard. The court in their analysis looked at Section 330 of the Restatement of Trusts (Second), which was the main law for dealing with revocability of trusts prior to the enactment of S. 736.0403(2). There the court focused on “whether there was any definitive manifestation by the settlor of his intention that the trust should be forthwith revoked”, and held that there was and it was sufficient. The court in conjunction with the Will accepted testimony from Ms. Saba the young attorney who drafted the Will who in her testimony explained that she had never revoked a trust before, but she included the language revoking Zintgraff’s Trust in the Will because Zintgraff told her she had a Trust and she wanted to revoke the Trust. Since when can an attorney claim ignorance as an excuse? Additionally, the court accepted an affidavit from Mr. Gary Tacon who was a friend and close confidant of Zintgraff. Mr. Tacon explained that he had known Zintgraff for over forty-four years and that they had remained close until Zintgraff’s death. He claimed that Zintgraff told him that Zintgraff intended to devise the property and take care of Bernal. The court in their opinion held “this evidence, when considered with the Will, is highly compelling evidence of Zintgraff’s intent.” The court explained that there is no “magic art” meaning there is nothing specifically necessary to revoke a Trust, simply a manifestation of an intent of the testator to revoke is sufficient and that even if Ms. Zintgraff had expressed her desire in a method very informal such as through a napkin or piece of paper and left it on her dresser or somewhere in her house that would be evidence enough to satisfy the high burden of clear and convincing evidence to show her intent to revoke the Trust.

In conclusion, if the settlor of the Trust does what the Trust terms specifies is required to revoke the trust or if the settlor later executes a will or codicil that expressly refers to the trust or specifically devises the property that was to be passed through the Trust than the trust would be considered revoked. However, in convoluted and complex situations as there were in this case the settlor/testator simply had to establish by “any other method” their intent to revoke the will by clear and convincing evidence. This clear and convincing evidence has been interpreted rather broadly though because a subsequent will with testimony and an affidavit of a couple of people seems to have been sufficient. Writing intent on a napkin and keeping it in an underwear drawer would have been sufficient as the court acknowledged in their dicta. The court seems to have taken this broad perspective in order to favor revocability of the trust because the court argues that “sheer logic” provides for that. Thus, in this case of first impression the court reversed the trial courts narrow interpretation and held for a broader mechanism for settlors to revoke their will, which arguably opens the doors for angry disinherited individuals who were excluded from the trust to be able to argue much more easily that the Trust was revoked. Here, the evidence accepted seem to be broad, the language in the will very generalized, but yet was sufficient as clear and convincing evidence of the deceased’s intent. Only time will tell if this causes problems and opens the doors for more litigation to invalidate trusts and what would not be considered adequate to show the deceased’s intent by “clear and convincing evidence.”

If you or anyone you know is in need of representation in actions involving Guardianship, Probate and/or Trust Disputes, or questions pertaining to such proceedings, please contact The Law Offices of Glenn M. Mednick, P.L., at (954) 315-1154 or gmednick@mednicklawgroup.com.