Blogs from December, 2016


The Uniform Trust Code §602(c) provides that a settlor may revoke or amend a revocable trust by substantial compliance with a method provided in the terms of the trust or by any method manifesting clear and convincing evidence of the settlor’s intent.   Section 736.0602(3) of the Florida Trust Code is identical to the Uniform Code with respect to the revocation of trusts. 

What is Clear and Convincing Evidence? 

Florida trust lawyers know that ‘clear and convincing evidence’ is evidence that is precise, explicit, lacking in confusion, and of such weight that it produces a firm belief or conviction, without hesitation, about the matter in issue. BDO Seidman, LLP v. Banco Espirito Santo International, 38 So.3d 874 (Fla. 3d DCA 2011).  The standard of proof has also been described as an intermediate standard of proof, more than the ‘preponderance of the evidence’ standard used in most civil cases, and less than the ‘beyond a reasonable doubt’ standard used in criminal cases.

The standard was tested in a recent trust revocation case Bernal v. Marin, 196 So.3d 432 (Fla. 3d DCA 2016).  In Bernal, it was undisputed that the Trust’s terms provided no method for revocation. The settlor placed her residence and a brokerage account into the name of the trust.  Years later, the settlor requested that her Florida probate lawyer draft a new will be stating that she “revoked all other wills, trusts, and codicils.”  After the will containing the revocation language was executed, that property titled in the name of the Trust was never retitled in the settlor’s individual name.  The will provided for all of her property to pass to Mr. Bernal. 

A Miami Probate Judge held that because the will did not specifically mention the name of the trust being revoked, the language of the will was ineffective to revoke the trusts.  The court of appeals decided to answer the question of whether Florida Statute s. 736.0602(3) allows for the revocation or amendment of trust by “any other method manifesting clear and convincing evidence of the settlor’s intent.” 

The court of appeals determined that the Miami probate court judge misinterpreted the plain language of the statute.  Specifically, the appeals court looked to an affidavit filed by a friend of the decedent, who stated that “I feel it is a shame that there is litigation surrounding [the settlor’s] estate, as I have always known it to be very clear that [the settlor] intended on leaving all of her possessions, including her home, to Mr. Bernal.” 

The Florida appeals court said “no magic art is necessary to revoke a trust….Any mode sufficiently manifesting an intention of the trust to revoke is effective.  The appeals court sent the case back to the Miami probate judge to hold an evidentiary hearing to determine if the evidence is sufficient to find that the settlor intended to revoke the trust. 

This case of the first impression is important because it reaffirms the importance of the settlor’s intent—the polestar by which Florida courts must be guided in determining questions in probate, estate, and trust litigation. 


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