Court Refuses to Use Merger to Disinherit Former Spouse.What is the doctrine of merger?

The doctrine of merger is set forth in the Restatement of (Third) Trusts §69, which provides that if the legal title to the trust property and the entire beneficial interest become united in one person, the trust terminates. The comments to this section of the Restatement also states that if by inter vivos transfer, will, or operation of law the entire beneficial interest in trust property passes to the trustee, the trust terminates and the trustee holds the property free of trust.

Thus, if the sole beneficiary of a trust dies intestate and his interest passes to the trustee as his heir, merger occurs and the trust terminates. Similarly, if the trustee is also the life beneficiary of the trust, and if the sole remainder beneficiary, holding an indefeasibly vested remainder interest in the trust, assigns her interest to the trustee or dies and leaves her interest to the trustee, the trust terminates. (more…)

Mistakes happen all the time when people are making their estate planning documents. The law is designed to provide fair remedies and solutions for families and loved ones who are victimized by an honest mistake by the deceased relative.

A uniform code for dealing with mistakes in wills is set froth in the Restatement of Property (Third)-
Wills and Donative Transfers, which provides:

§ 12.1 Reforming Donative Documents To Correct Mistakes

“A donative document, though unambiguous, may be reformed to conform the text to the donor’s intention if it is established by clear and convincing evidence (1) that a mistake of fact or law, whether in expression or inducement, affected specific terms of the document; and (2) what the donor’s intention was. In determining whether these elements have been established by clear and convincing evidence, direct evidence of intention contradicting the plain meaning of the text as well as other evidence of intention may be considered.” (more…)

The Restatement (Third) Property (Wills and Donative Transfers) §4.1 provides that “if a will cannot be located after death, but the trier of fact finds that it was not revoked, the will is entitled to probate if its due execution and contents can be proved. Commonly in such cases, the will is proved by evidence from a law-office or other copy, or from the drafter’s notes and recollection. If its full contents cannot be proved, the will is entitled to probate to the extent that its contents can be proved.”

Similarly, Florida has adopted its own code provisions regarding the practice and procedure for admitting lost or destroyed will to probate. See Florida Probate Rule 5.510. However, there are some jurisdictions that have not adopted a code provision regarding the procedure for use when a will cannot be located after the decedent’s death. (more…)

Court holds trust instrument was effective in transferring both real and personal property to the trust.Prior to Florida’s adoption of the new Trust Code, which became effective on July 1, 2007, the common law held that in order for a trust to be created, the settlor was required to make a present and unequivocal disposition of property so that he or she is no longer vested with its full legal and equitable ownership. For example, it has been held in Florida that the failure of a settlor to execute a deed which conveyed real estate to the trustees of a trust precluded the creation of a “living trust” for the realty. Flinn v. Van Devere, 502 so.2d 454 (Fla. 3d DCA 1986). Although the new Trust Code is now effective, it provides that the common law of trusts and principles of equity supplement the Code, except to the extent modified by the Code or another law of Florida. Fla. Stat. §736.0106. This leaves a lot of “gray” area in the law of trusts, and whether certain attempts to transfer property into a trust are valid.

I’m always interested in how our sister jurisdictions handle problems in connection with attempts to transfer real and personal property into a trust that might fall short of the formalities required by the Uniform Trust Code. One such case recently surfaced in our Midwestern sister state of Nebraska in Chebatoris v. Moyer 757 N.W. 2d 212 (Neb. 2008). (more…)

In Florida, and many other states, there are protections written into the probate code which purport to protect children from unintentional disinheritance by one or both of their parents. Florida’s pretermitted child statute is codified at Fla. Stat. §732.302 and is intended avoid an unintentional or inadvertent disinheritance of a child. Florida’s statute is modeled in part after the position adopted by the Restatement of Property and the Uniform Probate Code.

The Restatement of Property provides:

§ 9.6 Protection Of Child Or Descendant Against Unintentional Disinheritance

(a) A child of the testator, or under some statutes a descendant of the testator, who was not provided for in the testator’s will may be entitled to a specified share of the testator’s estate as provided by statute. Most of the statutes, including the Original and Revised Uniform Probate Code, only protect a child who was born or adopted after the will was executed.

(b) A child of the testator who was not provided for in the testator’s will because the testator thought that the child was dead may be entitled to a specified share of the testator’s estate as provided by statute.

(c) The omitted child or descendant is entitled to the specified share unless a contrary intent or other statutory exception is established. (more…)

Can disinherited heirs still take inheritance by intestacy?Sometimes a testator leaves a last will that expresses his or her intent to disinherit an heir. These wills are described under the common law, and some states’ statutes, as “negative wills.” Sometimes, the law allows a relative or heir disinherited under the negative will to nevertheless share in property that the testator failed to devised to another and as to which he or she died intestate. See In re Levy’s Estate, 196 So.2d 225 (Fla 3d DCA 1967).

The Uniform Probate Code addresses the issue and provides that a decedent through a last will and testament may expressly exclude or limit the right of an individual or class to succeed to property of the decedent passing by intestate succession, and if that individual or a member of that class survives the decedent, the share of the decedent’s intestate estate to which that individual or class would have succeeded passes as if that individual or each member of that class had disclaimed his or her intestate share. Uniform Probate Code §2-101(b). Stated more plainly, if you really want to exclude a person and every descendent, relative and heir of that excluded person, you need to make it crystal clear in the last will and testament. (more…)

Lawyers and probate courts are frequently asked by relatives of a deceased to consider evidence well beyond the four corners of a last will in determining the “true” donative intent of the testator. However, courts, at least in Florida, are generally bound by the language of a person’s last will and testament unless there is some ambiguity warranting the court’s examination of extrinsic evidence.

There are two types of ambiguities in the typical last will and testament construction cases:

A last will is “patently ambiguous” if it is ambiguous on its face. Patent ambiguities usually result in the probate courts finding that there is no valid will in effect and no extrinsic evidence is permitted. Some courts have held that where there is a patent ambiguity as to the testator’s intent, the probate court may consider extrinsic evidence. Remember extrinsic is evidence that is not within the document (in this case the Last Will) but instead comes from outside or external sources.

A “latent ambiguity” arises when it is not clear how to apply certain words of a last will to a specific gift. One court has described a latent ambiguity as arising when the words of the will are applied to the subject of devise or bequest, and those words apply to and fit without ambiguity indifferently to each of several things or persons. Kernkamp v. Bolthouse, 714 So.2d 655 (Fla. 5th DCA 1998). (more…)

Court rules that a Will’s direction for payment of “all just debts” did not require exoneration of jointly held property.

Under the common law doctrine of exoneration, an heir or devisee is generally entitled to have encumbrances upon real estate paid by the estate unless the will directs otherwise.

The Florida Probate Code abrogates this common law doctrine and directs that the specific devisee of any encumbered property is entitled to have the encumbrance paid at the expense of the residue of the estate only when the will shows that intent. Fla. Stat. §733.803. (more…)