New Case Discusses Difficulties in Revoking a Trust
It seems that wills and trusts go hand in hand. People will often set up both simultaneously, and assuming they are drafted property, both will work in tandem with the other and remain consistent with their intentions.
But what if they don’t? What if a will contradicts, or even revokes, a trust? That’s a situation a Florida court recently dealt with.
Woman Changes Will to Eliminate Trust
The case involved a woman who set up a will and a trust, which dictated how funds would be distributed upon her death. The trust had no instructions for dissolution, revocation or termination.
A few years later, she went to an attorney to redo her will. The new will left her property in a completely different manner than the trust had established, and in fact, said that all prior trusts were revoked.
The issue before the court is whether that will was sufficient to actually revoke the trust, and whether the contradictory terms of the pre-existing trust or the new will would dictate how assets are disbursed.
The trial court said that because the new will didn’t specifically name the deceased’s assets, or specifically name the trust, it didn’t revoke the trust. Thus, the trust’s terms would dictate.
How Trusts are Revoked
Family members appealed that decision. A trust can be revoked by complying with any terms in the trust that deal with revocation. Absent that, Florida law does allow a trust to be revoked by a subsequent will, but only if that will specifically names the trust being revoked, which wasn’t the case here. But Florida law also has a “catch-all” provision that allows a trust to be revoked by any method that evidences a person’s intent to revoke the trust.
Friends of the deceased testified that she had become very close with the person who was to receive assets under the will (and thus not the trust). Many testified that she had expressed her wishes to leave assets to the people named in the will, and not the trust.
The appellate court found this to be convincing evidence of the intent to revoke the trust. In fact, the court noted that any type of manifestation of intent, such as scribbling something on a napkin, could provide the needed evidence to fill the statutory required showing of an intent to revoke a trust.
If that is sufficient evidence, the court stated, then certainly the fact a new will was executed along with the testimony of others was sufficient to demonstrate that the trust had been revoked.
Avoiding this problem is easy—make sure if you set up a trust that there is a way to revoke the trust in the documents. This will avoid having to resort to family members trying to determine intent from conversations and other writings after the fact.
Don’t leave your assets to chance. Make sure your estate documents make sense. Contact Tampa business attorney David Toback to discuss a comprehensive estate plan.