Posted by Adrian P. Thomas on October 23rd, 2008 | No Comments »
Learn the Language: Fifth District Court of Appeals Reverses Probate Judge and Predicates Opinion On its Own Perception of Trust Language and “Settlor’s Intent”In Brown v. Miller, — So.2d —-, 2008 WL 4600940, 33 Fla.L.Weekly D2433c, Fla.App. 5 Dist., October 17, 2008 (NO. 5D07-1356, 5D07-1288) the Fifth District Court of Appeals reversed Orange County Judge Lawrence Kirkwood’s order which had invalidated a seven million dollar transfer from a testamentary trust to its lifetime beneficiary.
Elinor Miller set up a trust naming her husband Bill as the trustee and lifetime beneficiary (the “Elinor Miller Trust”). After her death the assets remaining in the trust (after her charitable bequests and distributions to family members) were divided into three separate sub-trusts, designated as Trust A-1, Trust A-2 and Trust B with each serving a distinct purpose.
The Elinor Miller Trust provided that the Trustee should pay Bill the income from A-1 and A-2, in addition to “such amounts from the principal of Trust A-2 first and then liberally for his maintenance, health, and support in his accustomed manner of living, taking into account all of his other income and means of support known to the Trustee. The Trustee shall also pay [Bill] such additional amounts of principal from Trust A-2 as he may from time to time request.” Further, the Trust provided that upon Bill’s death, the “Trustee shall pay over and distribute the then remaining balance of Trust A-2, if any to such person or persons, and in such manner, as he shall appoint by his Last Will and Testament, which makes reference to said power of appointment, including in him the power to appoint to his estate. Any portion of Trust A-2 not effectively appointed by [Bill] shall continue to be held in trust for the lifetime of my son, [Tom].” Id. Read the rest of this entry