Wills & Trusts Outline

Chapter 1. Probate and Gross Estates

Terminology:
A. Terminology Related to Wills and Intestacy (Fla. Stat. 731.201.)
Will- is a document that may dispose of the testators property, revoke a prior will, appoint a
personal representative, and serve other objectives.
* A will is not an irrevocable document. A testator may amend a will, execute a new
will, or revoke a will.hayn
Intestate decedent; Intestate- is a person who dies without a will.
Heir at law; Heir- is a person entitled to take the decedents property under the laws of intestate
succession. (One who receives through intestacy is also a beneficiary).
Testator- is an individual who makes a valid will. (Testate)
Devisees- are persons receiving property through will provisions.
Beneficiaries- devisees and heirs of an intestate. (when you receive through a will you are either
a devisee or a beneficiary).
Devise disposition of property by will.
Probate administration- is a process for administering a decedents testate and intestate
property. Taking it to court and having the probate administrator dispersing the property as the
will sets out. The beneficiaries get title to property devised in the will only once the probate
process is completed.
Probate estate- is the property that is subject to probate administration.
Probate of will- is the process of establishing the validity of a will and admitting it to probate.
Estate- refers to property that is subject to administration.
Gross estate- is a federal tax concept and is the starting point for determining if estate tax is due
after the decedents death.
Elective estate- is a state law concept used to determine the amount a decedents surviving
spouse is entitled to elect to take.
Personal Representative; Executor & Executrix- the person who administers an estate.
Curator- is a person appointed by the court to take charge of the estate until a personal
representative is given authority to act.
B. Terminology Related to Trusts

Express trust- is an intentional agreement that separates legal and equitable title to property and
provides for management of that property for the benefit of the trusts beneficiaries.
A property owner can establish a trust during her life (inter vivos trust) or in her will
(testamentary trust). If she establishes it during her life, it can be revocable or
irrevocable.
Settlor; Grantor- the person who transfers the property into trust.
Trustee- the person who is responsible for administering the trust property. (owns the legal title).
Beneficiary- a person for whose benefit the trust is administered. (Owns the equitable title).
C. Other Terminology
Power of appointment- allows a property owner to give another person the right to decide who
will ultimately receive the owners property.
Donor- is the person who creates the power of appointment and whose property will ultimately
be distributed to another.
Objects of power- the eligible recipients of the property.
Appointee- the person actually chosen by the power holder to receive the property.
Taker in default- a person chosen by the donor who receives the property if the power holder
fails to exercise the power.
Durable power of attorney- authorizes one person to act for another.
Designation of health care surrogate- authorizes one person to make medical decisions for
another.
Living will- is a document that indicates and individuals desires regarding life-prolonging
procedures in situations that involve terminal medical conditions, end-stage medical conditions,
or persistent vegetative states.
* The will itself does not transfer the property; the will must go through probate in order to
transfer the property to the beneficiaries. Some exceptions to probate are tenancy by the entirety,
spouses having both names on the bank account and joint tenancy with right of survivorship.
- Probate property is generally all property wherever located, real or personal, tangible or
intangible, owned by the decedent. Real property owned in another state is not considered
Florida probate property (ancillary administration from that state).
- i.e. Cash is a probate asset, in a tenancy in common, when one of the tenants die, there
part of the property is a probate asset, insurance on property that got destroyed or stolen
are probate assets. (Property decedent owned as trustee is not a probate asset).
- Generally the probate estate consists of:
(1) Property owned solely by the decedent
(2) the interest a decedent owns as a tenant in common; and
(3) a vested remainder owned by the decedent
Domicile is an important concept in determining what property is included in the probate
estate. Real property is subject to probate in the jurisdiction in which it is located.
Generally, tangible and intangible personal property is subject to probate in the
jurisdiction in which the decedent is domiciled at death.

- Three alternatives to devising property by will are making outright gifts before death, using the
ownership forms described in Section VII, and allowing property to pass by intestacy. (When
property passes by intestacy, it is distributed to those individuals designated as heirs).
1. Intestate Succession
The intestacy statutes rank potential takers of the decedents probate property. The
rankings give the decedents spouse and descendants priority over the decedents parents,
siblings, and collateral heirs, regardless of financial need. (Intestacy statute in Chapter 2).
2. Other functions of a Will
Other than devising property, a will may name a personal representative or revoke prior
wills or codicils. A will may also exercise a power of appointment granted by another
person, refer to other documents that have dispositive significance, or indicate if debts
should be paid from particular funds or allocated pro rata among a group of beneficiaries.
If a particular issue is not discussed in a will then the default provisions will be applied.
(Such as those discusses above for intestate succession).
Gross Estate- The gross estate is a federal tax concept. It includes the decedents probate estate,
but it is often much larger. The gross estate includes the value of nonprobate property if the
decedent is treated as having sufficient interest in, or rights to affect enjoyment of, that property.
Property That is Not Subject to Probate.
1. Tenancy by the Entirety- As a general rule, if a husband and wife take title to property in both
of their names, Florida law presumes they own that property as tenants by the entirety unless the
instrument states otherwise. If the decedent and his or her spouse owned property as tenants by
the entirety, the surviving spouse takes all of the property by operation of law.
2. Joint Tenancy with Right of Survivorship- If the decedent and another person owned property
as joint tenants with right of survivorship, the surviving tenant takes the property by operation of
law.
3. Special Rules Governing Survivorship Tenancies- If two or more persons own a bank account,
unless a document states to the contrary, a right of survivorship is presumed to exist. (Creditors
have the burden of proving that the bank account was not owned with a right of survivorship).
* A pay on death (POD) account is created when one person opens and funds an account at a
financial institution, such as a bank or a stock brokerage firm, and designates one or more
persons who are to receive the account assets on his death. Transfer on Death (TOD) accounts
refer to securities. The beneficiaries have no rights to the account while the depositing owner is
alive. Their rights vest on the death of the account owner. If a designated beneficiary survives
the account owner, the account is not probate property. If no beneficiary survives the owner, the
account is probate property.
- Pensions and Other Retirement Assets pass by virtue of the contract between the owner and
plan administrator. They are not part of the owners probate estate.
The plan assets might be part of the owners probate estate if (1) the designated
beneficiary does not survive the account owner; (2) the owner named her estate as the
plan beneficiary; or (3) the owner failed to designate a beneficiary.

- Annuities are contracts. The purchaser pays the company issuing the annuity in exchange for
the right to receive payments at one or more specified times. (There are fixed annuities and
variable annuities). If the annuity policy is payable only during the annuitants life, payments
terminate when the owner dies. The owner of an annuity contract has the right to name one or
more beneficiaries to receive any value remaining at the owners death. If the designated
beneficiary survives the owner, the annuity is not part of the deceased owners probate estate. If
the owner fails to designate a beneficiary, names her estate as a beneficiary, or all designated
beneficiaries fail to survive the owner, the annuity may be probate property.
- Property that the decedent irrevocably transfers before death is generally excluded from the
decedents probate estate because the decedent no longer owns that property.
Other Nonprobate property
- Wrongful death proceeds are excluded from both the probate and federal gross estates.
- A decedents surviving spouse and dependent children may qualify for survivors benefits
through the federal Social Security program. Those benefits are also excluded from both probate
and gross estates.
Chapter 2. Intestate Estates
An intestate estate arises in 3 situations, decedent dies:
(1) without having executed a will
(2) having revoked a will, or
(3) having executed a will that was later held to be invalid
* A person may die partially intestate, meaning that some of their property may be included in a
will while other property is not.
- You do not have to be a Florida resident to inherit; even aliens in another country can
inherit.
The 3 groups of people that inherit are:
(1) Surviving Spouse
(2) Lineal Heirs (decedent and ascendants); In Fl the highest level is your grandparents.
(3) Collateral Heirs (i.e. siblings, nephews, uncles, cousins).
Status as a Surviving Spouse
Status as a spouse is a legal question that does not depend on the quality or length of the
relationship or on whether the spouses live together or are separated. However, on rare occasions
a spouse can be estopped from claiming the status of surviving spouse when the surviving spouse
has completely repudiated the marriage by subsequent conduct that is inconsistent with being
married to the intestate.
Who is not a spouse: (1) person divorced before decedents death, (2) the marriage was
annulled, (3) Common law marriage not recognized in Florida.
Who is a spouse: (1) someone who is separated, or those who have only begun divorce
proceedings. Florida does recognize putative spouses (good faith and substantial
compliance, i.e. if you make a simple mistake on the marriage license the state will still
recognize your marriage).

Fla. Stat. 732.805 prevents a surviving spouse from claiming an intestate share if he or she
procured the marriage by fraud, duress, or undue influence. However, the surviving spouse may
still recover if the spouses voluntarily cohabitated as husband and wife with full knowledge of
the facts constituting the fraud, duress, or undue influence or both spouses otherwise
subsequently ratified the marriage.
Share of Surviving Spouse
-The percentage of the intestate estate allocated to the surviving spouse depends initially on
whether the decedent is survived by descendents.
- If the decedent is not survived by any descendents then the surviving spouse gets 100% of the
probate estate. (Even if the surviving spouse has descendents from another relationship).
There are 3 relevant scenarios when a decedent dies with descendents:
(1) all of the decedents surviving descendants are descendants of the surviving
spouse, and the surviving spouse has no other descendants;
-In this scenario the surviving spouse receives 100% of the probate estate
(2) all of the decedents surviving descendants are descendants of the surviving
spouse, but the surviving spouse also has descendants who are not the decedents
descendants; and
-In this scenario the surviving spouse receives 50% of the probate estate.
(3) at least one of the decedents surviving descendants is not the surviving spouses
descendant.
-In this scenario the surviving spouse receives 50% of the probate estate.
- Escheat- if the intestate has no survivors who fall into any of the categories in the intestacy
statute, the property passes by default to the state of Florida. Qualified heirs can claim the
proceeds from the sale of escheated property, but must do so within 10 years.
Hall v. Mall
32 So. 3d 682 (Fla. 1st DCA 2010)
Rule: Couples who desire to be married must apply for a license. The license is valid for 60
days (the couples must get married within those 60 days). The officiant at the ceremony must
certify that the marriage was solemnized. The certified marriage license must be returned to the
clerk or issuing judge within 10 days and the clerk or judge is required to keep a correct record
of certified marriage licenses. However, where the court found that couples who proceed with
good faith and substantial compliance when conducting a wedding ceremony prior to obtaining
a marriage license may be found to have a valid marriage.
In re Estate of Butler
444 So. 2d 477 (Fla. 2d DCA 1984)
Rule: If spouses misconduct is of such flagrant and inexcusable character as to constitute a
repudiation of marital obligations, that spouse may be estopped from enjoying the rights of
marriage.
Parents

Parents will only receive any of the estate if the decedent does not have a surviving spouse or
descendants. If both parents survive the decedents death, each receives one-half of the estate; if
only one survives, that parent takes the entire estate. The term parent does not include
stepparents or foster parents.
Siblings and Their Descendants
If the decedent has no surviving spouse, descendants, or parents, the decedents brothers and
sisters divide the estate. If a sibling who predeceased the decedent is survived by descendants,
those descendants take that siblings share. Siblings and their descendants are collateral heirs of
the decedent.

Paternal and Maternal Kindred

If the decedent has no surviving spouse, descendants, parents, siblings or siblings descendants,
then the estate will go to paternal and maternal kindred. The term kindred covers the decedents
grandparents and their descendants, which includes aunts and uncles, cousins, and descendants
of cousins who are related by blood (consanguinity). It does not cover aunts, uncles, cousins or
descendants of cousins who are related by marriage (affinity).
State v. Rudawski (In re Estate of Tim)
180 So. 2d 161 (Fla. 1965)
Issue(s): What is the burden on the State when it attempts to escheat an estate after a decedent
dies intestate with no heirs? Rule: The states burden is met when in addition to proof of the
actual death, nonmarriage, and intestacy of the propositus, it has been shown that after diligent
search and inquiry the state has been unable to find that he left ascertainable heirs. When the
state has shown these things it has established prima facie the escheat of the property. The
burden is then upon a particular claimant to prove by the ordinary rules and competent evidence
that he is in fact the next of kin.
Kindred of Deceased Spouse
If the decedent is survived by none of the individuals listed above, the last group of takers before
defaulting to the state is the kindred of the decedents predeceased spouse.
Intestate Distribution Systems
3 Commonly used intestate systems:
(1) Per stirpes system (used if Florida)
(2) Per capita with representation system; and

(3) The 1990 UPC system (per capita at each generation)

Rule #1: A descendant who has a living ancestor who is also the decedents descendant, is not an
eligible taker.
Rule #2: Disregard anyone who died without descendants
Floridas Distribution Scheme
- Under per stirpes- the descendants of a deceased heir take that persons share by representation.
Start at the next generation with living descendants, or at the level with dead descendants who
have descendants under them.
The intestate estate is divided into as many equal shares as there are: (1) surviving
members in the generation nearest to the decedent; and (2) deceased members in the same
generation who left surviving descendants. One share is allocated to each living member
in the nearest generation; one share is allocated to each deceased member who left
surviving descendants.
* In your will you can specify which intestate system you want used to distribute your
assets, however, if you die intestate then the default is per stirpes.
In re Estate of Davol
100 So. 2d 188 (Fla. 3d DCA 1958)
Rule: The default distribution intestate system in Florida is per stirpes, regardless of unequal
consanguinity.
Notes
1. The intestates death is the event that vests an heirs interest in the intestate estate. Until then,
a person has no right to inherit and has only an expectancy.
2. In Florida, a missing person may be declared dead after a 5-year continuous absence and an
unsuccessful diligent search. Fla. Stat 731.103(3). This statue allows earlier presumption of
death if a missing person had been exposed to a know peril of death.
3. Distribution under a will to devisees who are described as descendants, issue, and other
multigenerational classes is done per stirpes unless the will states otherwise. Fla. Stat. 732.611.
4. There is no statutory language in Florida suggesting that once claimants have established their
status as lawful heirs the State is entitled to escheat of a portion of the estate simply because
there is uncertainty concerning whether there may be other lawful heirs.
5. In order to avoid intestacy, a client must effectively dispose of all his assets by will or will
substitute. In Florida, a testator cannot disinherit an heir unless his will provides for a substitute
taker of his probate estate. (i.e. I dont want my son the inherit my estate is not enough, the will
must provide for someone who is to inherit the estate).
6. The rules of intestacy may apply even if a decedent dies with a valid will in order to determine
the rights of a spouse or a child who was inadvertently omitted from a will.
Effect of Adoption on Inheritance (Fla. Stat. 732.108)
Upon being adopted, a child is deemed to be the descendant of the adopting parents. Under Fla.
Stat. 732.108(1), the legal relationship of family is created between the adopted child and the
adopting family for inheritance purposes.

Generally, the adopted child can no longer inherit from or through the birth parents, and the
family of the birth parents can no longer inherit from or through the child. However, there are
certain exceptions:
(1) Fla. Stat. 732.108(1)(a)- a child may still inherit from a birth parent and that
parents family when that birth parents spouse has adopted the child. However, the
child may not inherit from the other birth parents because those rights are severed
once the adoption takes place.
(2) Fla. Stat. 732.108(1)(b)- a child may inherit from a deceased birth parents
family although the child has been adopted by the surviving parents new spouse as
long as the new marriage and the adoption occurred after the birth parents death.
(3) Fla. Stat. 732.108(1)(c)- if a sibling, grandparent, aunt, or uncle adopts an
orphaned child, the inheritance rights between the child and the birth parents families
are not terminated.
Kay v. Swartz (In re Estate of Kanevsky)
506 So. 2d 1101 (Fla. 3d DCA 1987).
Issue(s): Is a child entitled to inherit from a deceased parent even though he is subsequently
adopted by the spouse of his surviving parent? Rule: Under Florida Statute Fla. Stat.
732.108(1)(b), a child shall be entitled to inherit from or through a deceased parent even though
he is subsequently adopted by the spouse of his surviving parent.
Estate of Huskea v. Doody
391 So. 2d 779 (Fla. 4th DCA 1990).
Facts: Decedent died intestate, with natural born son who was adopted as a child by other family.
After the adoption Florida passed legislation that disinherited natural born children who were
subsequently adopted. Rule: Legislation in effect at the time of the decedents death is what
governs, not legislation in effect at the time of the adoption.
Williams v. Estate of Pender
738 So. 2d 453 (Fla. 1st DCA 1999).
Issue(s): What is the standard of proof required to prove an adoption by equity? Rule: the
following elements must be proved by clear and convincing evidence (more that a
preponderance of the evidence): (1) an agreement to adopt between the natural parents and
alleged adoptive parents; (2) performance by the natural parents of the child in giving up
custody; (3) performance by the child by living in the home of the alleged adoptive parents; (4)
partial performance by the alleged adoptive parents in taking the child into their home and
treating the child as their own child; and (5) intestacy of the alleged adoptive parents.
Note: You can only inherit from the virtual adoptive parent, not from the virtual adoptive
parents family.
Children Born Out of Wedlock
Issues arise as to the inheritance rights of a child born out of wedlock and their father. The
Florida statute provides several means for establishing paternity and family relationships for
purposes of inheritance between a nonmarital child and his father and the fathers family.

Fla. Stat. 732.108(2)(a)- a child born out of wedlock is the descendant of his father if
his birth parents entered into a marriage ceremony, even if the marriage is void. (The
statute applies whether the ceremony occurred before or after the childs birth).
Fla. Stat. 732.108(2)(b)-(c)- a child may inherit from his father and the fathers family
if paternity is established either in court or by the fathers written acknowledgment.
(Adjudication of paternity can be accomplished before or after the fathers death).
Brown v. Johnson (In re Estate of Broxton)
425 So. 2d 23 (Fla. 4th DCA 1982).
Issue(s): Whether there is a presumption of legitimacy in determining whether someone was born
out of wedlock? Rule: There is no Florida case that allows a child or more remote lineal
descendant to bastardize an ancestor through judicial proceedings. In order to establish paternity
after the death of the putative father the evidence must be clear, strong and unequivocal. Also,
because appellants mother was married at the time she conceived the appellants, there is a strong
presumption that they are the legitimate children of Columbus, thus, their burden of proof is
much greater.
Afterborn Children
Afterborn children are those children conceived prior to, but born after, a decedents death. Fla.
Stat. 732.106 treats those children as if they had already been born at the time of the decedents
death, thus, they are eligible to inherit. (The rule applies to all of a decedents heirs, not merely
to the decedents own afterborn children). Florida imposes no minimal amount of time by which
afterborn heirs must survive their birth.
Half Blood Heirs
Half blood relatives are heirs related to the decedent through one common parent or grandparent.
Half blood relationships occur only with collateral heirs, not with descendants or ancestors (i.e.
you could have a half brother but not a half father). Florida law treats half blood relatives
differently than it treats whole blood relatives. Under Fla. Stat. 732.105, each half blood heir
receives only half as much as a whole blood heir. If only half blood family members survive,
shares are equal
Estes v. Nicholson
23 So. 490 (Fla. 1898).
Rule: When a decedent dies intestate and their assets are distributed to their paternal and
maternal kindred, each side receives equal shares, regardless of whether they are half-blood
kindred or not.
Children Born though Assisted Reproductive Methods
The laws on inheritance by children born though assisted reproductive methods are still evolving.
Fla. Stat. 742.17 provides that the child shall not be eligible for a claim against the decedents
estate unless the child is provided for by the decedents will. (i.e., surrogate mothers).
Chapter 3. Appointment of Personal Representative and Formalities of Execution

A personal representative is necessary for both testate and intestate estates. The personal
representative is in charge of administering the probate estate. If there is a dispute about who is
to be appointed personal representative, the court may appoint a curator to administer the estate
until the dispute is resolved. (Fla. Stat. 733.501)
The person appointed to serve as a personal representative need not be a beneficiary of the estate
or have any other connection with the estate. Fla. Stat. 733.302, 733.305; Individuals, trust
companies, and certain other entities designated in the statutes may be qualified to serve as
personal representative. (they must be legally competent and a Florida resident).
Fla. Stat. 733.303(1) disqualifies anyone who has been convicted of a felony, is mentally or
physically unable to serve, or is under the age of 18; Fla. Stat. 733.304 disqualifies a
nonresident of Florida unless the individual has a close family relationship to the decedent.
(lineal consanguinity/related by blood).
Fla. Stat. 733.301(1)(a); In a testate estate, the person nominated in the decedents will should
be appointed if she is willing to serve. The testator may nominate one or more alternate persons
in his will. In that case, if the testators first choice is unwilling, unable, or not qualified to serve,
the court should appoint the alternate person as personal representative. The testator may name
one person to serve alone, or he may name several persons to serve together. While a person can
decline to serve as a personal representative, once a person is appointed by the court, he may not
resign without court approval.
Fla. Stat. 733.301(1)(a): If no qualified person nominated in the will is able to serve, the
beneficiary, or group of beneficiaries, who will receive the majority of the probate estate may
agree on a person to be appointed personal representative. If no personal representative is
appointed based on a nomination in the testators will or based on selection by those entitled to a
majority of the probate estate, the court may appoint any qualified beneficiary named in the will
who is willing to serve. If more than one beneficiary seeks to be appointed, the court is to select
one who is best qualified.
Fla. Stat. 733.301(1)(b): In intestate estates, the intestates surviving spouse has priority to
serve as the personal representative. If there is no surviving spouse or if the surviving spouse
declines to serve, a person selected by a majority in interest of the heirs will be appointed.
Absent an agreement, the heir who is the nearest in degree to the intestate (closest relative) has
the next priority. If several heirs who are of the same degree of relationship to the intestate seek
appointment, the court is to select the one most qualified.
Fla. Stat. 733.301(3): If none of the priority rules discussed above apply, the court generally
may appoint any capable person. However the court may not appoint employees of the court or
the judge to whom the probate is assigned. An event occurring after the court appoints a personal
representative may result in the appointment of a different personal representative. Similarly, if a
personal representative later become ineligible to serve, the court may replace him.
Werner v. Estate of McCloskey
943 So. 2d 1007 (Fla. 1st DCA 2006)

Issue(s): Whether the court has discretion in appointing a personal representative when it feels
that the nominated individual may have a conflict of interest with the estate? Rule: The general
rule is that trial courts are without discretion to refuse to appoint the personal representative
specified by the testator in the will unless the person is expressly disqualified under the statute or
discretion is granted within the statute. There is nothing in the relevant provisions of the Florida
Probate Code (Fla. Stat. 733.301(1)(a), 733.302, 733.303(1)) that suggests that a person
named in a decedents will as personal representative need not be appointed if he or she has a
conflict of interest with the estate.
Execution of Wills
A. Statutory Requirements (Fla. Stat. 732.502)
(1) First, the will must be in writinghandwritten, typed, or printed. Florida does not recognize
oral will (nuncupative wills) or non-attested wills (holographic wills).
(2) Second, the testator must sign the will. The testators signature must appear at the end of the
will. The testator can also direct a proxy to sign on his behalf in the testators presence, however,
the proxy does not have to include his or her own name in the document but it is advisable to
include that information.
(3) Third, the testator must sign in the presence of at least two witnesses. However, if the testator
or proxy had signed the will earlier, the testator can later acknowledge to at least two witnesses
that the will had already been signed by him or the proxy.
(4) Fourth, the witnesses must sign in the presence of the testator and in the presence of each
other. Thus, the witnesses have two duties. First, they must actually witness the signing of the
will. Second, they must sign the will attesting to the fact. (The witnesses are not required to sign
at the end of the will, however, it is best that they do).
Qualifying as a Witness
Fla. Stat. 732.504: Anyone competent to be a witness, including beneficiaries of a will, may
serve as a witness. (Competent means someone who understands what they are witnessing/ a
signing).
Signing at End
The will has to be signed at the end. Common law decisions have stated that the end refers to the
logical endafter the dispositive provisions and administrative provisions of the will.
The Presence Requirement
The testator or proxy must sign (or acknowledge a prior signature) in the presence of the
witnesses. If a proxy signs, he must do so in the testators presence. The witnesses must sign in
the presence of the testator and in the presence of each other.
There are two presence tests used throughout the United States:
(1) The line-of-vision test
The testator does not actually have to see the witnesses sign, but must be able to see if the
testator were to look at the witnesses in the act of signing.
(2) The conscious presence test

Requires only that a party mentally perceive that another is signing, without the need to
actually be capable of seeing the other person. This test is met if the person can sense the
presence of another, without seeing him or her, such that he or she knows that the other is
signing.
- To be on the safe side attorneys should adhere to the more conservative line-of-vision test.
Testimonium and Attestation Clause
A testator may add a testimonium and an attestation clause to the will. The testimonium clause
states the name of the testator and testifies to their signing of the will. An attestation clause states
the basic facts that occurred during the execution of the will. It may also include other matters,
such as the number of pages to the will.
Self-Proof Affidavit and Admitting Will to Probate
- A self-proof affidavit is sworn testimony that the execution of the will complied with Florida
law. Both the testator and witnesses sign the self-proof affidavit, either at the time of execution
of the will or at a later date. This affidavit is not required but strongly recommended.
- In order to admit a will to probate, a court must ensure that the will was executed with the
formalities required by Florida law. Thus, when a will is filed with the court to open a probate
administration, the court requires sworn testimony of the witnesses as to the wills execution. If
the witnesses are not available to give such testimony, then the personal representative or a
disinterested party may swear that he believes that the will was the decedents.
- If the validity of the will is contested, the proponent of the will has the burden to establish
prima facie that the will was properly executed and attested. However, a validly executed selfproof affidavit establishes prima facie the formal execution and attestation of a will.
Baron v. Williams (In re Estate of Williams)
182 So. 2d 10 (Fla. 1965)
Facts: Trial court and appellate court both found that the mark of an X was not a sufficient
marking to execute the will. Issue(s): Whether under the wording of Fla. Stat. 731.07, a testator
may execute his will by making his mark, as distinguished from writing his alphabetical name?
Rule: A mark made by the testator at the proper place on his will with the intent that it constitute
his signature and evidence his assent to the will is sufficient to satisfy the statutory requirement
that he sign his will. The greatest protection against fraud, and the greatest aid in proof that a
testator did in any manner sign his will as his, is furnished by the statutory requirement that it be
done in the presence of, or acknowledged in the presence of, at least two attesting witnesses.
In re Schieles Estate
51 So. 2d 287 (Fla. 1951)
Rule: The location of the testators signature on the will at a place other than the signature line,
will not alone bar probate of the will, if he signed with the intent to formally execute his will.
High authority holds that the attestation clause is not a part of the will, but, in general terms, may
be referred to as a certificate of the will. It is commonly recognized that the attestation clause
comes at the end of a will. However, the signature of an attestation clause at the end of a will will
not make that will invalid.
Bradley v. Bradley

371 So. 2d 168 (Fla. 3d DCA 1979)

Rule: Most cases have recognized that the end of a will, as contemplated by the statute
requiring that a testator sign at that point, is the logical end of the language used by the testator to
state his testamentary intention, or, in other words, the sequential end of the paragraphs and
pages, as made manifest on the face of the instrument. It must appear on the face of the
instrument not only that he intended to place [the signature] at the end of his testamentary
provisions, but that he has in fact placed it in such proximity thereto as to constitute a substantial
compliance with this requirement of the statute.
In re Estate of Charry
359 So. 2d 544 (Fla. 4th DCA 1978)
Issue(s): Whether a witness must sign at the same place as a testator? Rule: There is no
requirement that the witnesses sign at any particular place or with any particular mental intent.
Simpson v. Williamson
611 So. 2d 544 (Fla. 5th DCA 1992)
Facts: Walden is decedents attorney and was present when the will was executed. Rule: It is
well established that the execution of a will may be valid, even though a required witness signs
in a capacity other than that of a witness. In a number of cases, a notary has been held to be a
valid witness to the execution of a will, where such person could have served as a witness, under
the circumstances, had he signed in that capacity. Location of the testator/witnesses signature on
the will at a place other than the signature line, will not alone bar probate of the will, if he signed
with the intent to formally execute the will. Weldens signature on the last line of the self-proving
page can be considered as part of the will because as the court in In re Scheles Estate found, the
attestation clause or self-proving affidavit is not a necessary or essential part of a will, but when
originally incorporated into one, it can be part of it., therefore Weldens signature at the end of
the self proving page can be considered part of the will.
Notes and Discussion Questions
(1) Pursuant to Fla. Stat. 732.502(3), a validly executed military testamentary instrument will
be admitted as a valid will in Florida.
(2) The fact that a will is handwritten does not mean that it cannot be valid. A handwritten will
executed with the formalities required under Florida law may be valid.
(3) A person cannot sign a self-proof affidavit as a witness and as a notary, because a notary
cannot administer an oath to himself.
(4) A will executed by a nonresident of Florida that is valid in accordance with the law of the
jurisdiction where executed will be valid in Florida.
(6) Even when the line-of-vision test is applied, exceptions generally are made for blind persons.
For a blind person, courts in line-of-vision jurisdictions will usually hold that if the blind person
is conscious of what is going on around him or her, attestation made within his or her range of
touch and hearing is valid.
Chapter 4. Testamentary Capacity and Undue Influence
- A will that was executed when the testator lacked testamentary capacity is invalid.

- Undue Influence- relates to whether a third party exercised so much influence over the testator
that part or all of the will is invalid because it reflects the third partys wishes rather than the
testators.
- Fla. Stat. 732.517- Florida does not enforce in terrorem or no contest clauses (if anybody
contests the validity of this will then they will not receive their interests).
Requirements for Testamentary Capacity
Age or Emancipation
Fla. Stat. 732.501- To execute a valid will, the testator must be at least 18 years old or an
emancipated minor. (A minor becomes emancipated by marriage, even if the marriage ends in
divorce or the spouse dies. A 16 year old can also request that the court emancipate him). A will
executed by an unemancipated minor does not become valid merely because the minor becomes
emancipated or reaches 18 before dying.
Sound Mind
- Fla. Stat. 732.501- To execute a valid will, the testator must be of sound mind. Every person
is presumed to be of sound mind. If the testator was of sound mind when the will was executed,
subsequent incapacity is irrelevant.
- 3 Elements to Testamentary Capacity:
Does the testator generally understand:
(1) the people who would normally inherit (natural object of her bounty)
(2) the property she owns; and
(3) the general effects of the overall dispositive plan.
A testators testamentary capacity is determined at the time he or she executes the will. In
Florida, testamentary capacity is defined as the: ability of the testator to mentally understand in a
general way the nature and extent of the property to be disposed of, and the testators relation to
those who would naturally claim a substantial benefit from the will, as well as a general
understanding of the practical effect of the will as executed.
Courts may recognize that a testator has the capacity to execute a will even though she is
frequently intoxicated, uses narcotics, has an enfeebled mind, failing memory, or vacillating
judgment.
Lucid interval- a period of time during which the testator returned to a state of comprehension
and possessed actual testamentary capacity.
Insane delusion- a spontaneous conception and acceptance as a fact, of that which has no real
existence except in imagination. Also has been defined as a conception originating spontaneously
in the mind without evidence of any kind to support it, which can be accounted for on no
reasonable hypothesis, having no foundation in reality, and springing from a diseased or morbid
condition of the mind. In order to affect the testamentary capacity of the testator it must appear
that the persons having a special claim to the testators bounty are the object of the alleged
delusions of the testator.
American Red Cross v. Estate of Haynsworth

Fla 3d DCA 1998

Issue(s): (1) What is required to establish testamentary capacity in the presence of a prior
adjudication of incompetency? (2) What party bears the burden of demonstrating testamentary
capacity, and whether that burden was met? (3) If one part of a will in invalid as the product of
undue influence is the entire will rendered void?
Rule: (1) Where the subject will is executed after the testator has been declared legally
incompetent, it must be proved that the testator returned to a state of testamentary capacity by
demonstrating that the will was executed during a lucid moment; otherwise, there is a
presumption of lack of testamentary capacity as to any will executed after an incompetency
adjudication. (2) An adjudication of incompetency shifts the burden of going forward with the
evidence on testamentary capacity to the proponent of the will bc adjudication of incompetency
of a testator creates a prima facie case against the proponent of such a will. (3) No, under
732.5165: Any part of the will is void if so procured, but the remainder of the will not so
procured shall be valid if it is not invalid for other reasons.
Pangborn v. Union Trust National Bank (In re Estate of Burkhart)
204 So. 2d 737 (Fla. 2d DCA 1967)
Rule: Courts can bring in evidence of what happened after a will was executed to determine
whether decedent had testamentary capacity to execute the will when he did so. The contestant of
the will has the burden of proving that on the date of execution the testator lacked testamentary
capacity.
Notes:
(1) Only interested persons may challenge a will. An interested person is any person who
may reasonably be expected to be affected by the outcome of the particular proceeding involved.
(2) An unnatural disposition does not in and of itself signify a lack of testamentary capacity.
(disinheriting your relatives).
(3) Adults and emancipated minors are generally presumed to have testamentary capacity. If,
however, a court has adjudicated that an individual is mentally incapacitated, the burden of going
forward with evidence regarding testamentary capacity rests with a wills proponent. The
proponent may be able to provide evidence that the testator executed the will in a lucid interval
or otherwise had sufficient testamentary capacity.
(4) An attorney who is asked to draft a will for a client for whom a guardian has been appointed
should determine whether such individual has testamentary capacity and consider the type and
scope of the guardianship.
Undue Influence
Fla. Stat. 732.5165- Influence is undue if it destroyed the testators free agency and substituted
anothers volition for that of the testator. A testator may have testamentary capacity and still be
susceptible to undue influence. If the court determines that a will was the product of undue
influence then the entire will is void. However, if only a portion was the product of undue
influence, only that portion is void.
Requires a finding of 3 elements to prove undue influence:
(1) there was influence exerted on the testator
(2) the effect of the influence was to overpower the testators free agency, and

(3) the product of the influence was a will or portion thereof that would not have been
executed but for the influence.
In order to raise the presumption of Undue Influence the contestant must establish that the
beneficiary:
(1) was a substantial beneficiary
(2) occupied a confidential relationship with the testator; and
(3) was actively involved in procuring the will
Substantial Beneficiary
Determined on a case-by-case basis. (Someone who would not have benefited from the will
unless there was undue influence). Someone who obtains significantly more from the disputed
will than he would have received under intestacy or a prior will. Someone who obtains more
than others in the same degree of relationship to the testator i.e. 3 brothers and one receives
substantially more.
Confidential Relationship
Basically, a person has a confidential relationship with the testator if the testator has some kind
of trust in that person. (Generally, a spouse is immune from the presumption of undue influence,
unless the marriage was procured by fraud).
Actively involved in Procuring the Will.
- 7 Factors:
Was the beneficiary present at the execution of the will
Was the beneficiary present when the testator discussed the will
Did the beneficiary recommend of an attorney for will
Did the beneficiary know the contents of the will before it was signed.
Did the beneficiary instruct the attorney on how to draft the will
Did the beneficiary get the witnesses to observe the signature of the will
Did the beneficiary keep the will after its was executed.
* You do not need all of the factors, these are just guidelines of what to look for, moreover, this
list is not exclusive.
Carpenter v. Carpenter (In re Estate of Carpenter)
253 So. 2d 697 (Fla. 1971)

Rule: Fla. Stat. 732. 31 provides that the proponent of a contested will has the burden of
proving, prima facie, the formal execution and attestation of a will. When this has been done, the
statute shifts the burden of proof to the contestant, to establish the facts constituting the grounds
upon which the probate of such purported will is opposed or revocation thereof is sought. Thus,
once the proponent of a will has established the formal execution of a will, the burden shifts to
the contestants of a will to raise a presumption of undue influence. If they succeed in raising the
presumption, by establishing that the substantial beneficiary occupied a confidential relationship
with the testator and was active in the procurement of the will, the burden then shifts to the
proponent of the will who must then come forward with a reasonable explanation for his or her
active role in the decedents affairs, and specifically, in the preparation of the will. When the
proponent satisfies its burden the presumption will vanish from the case and the county judge
will be empowered to decide the case in accord with the greater weight of the evidence.
The rebuttable presumption of undue influence implements public policy against abuse of
fiduciary or confidential relationships and is therefore a presumption shifting the burden of
proof. Accordingly, once a will contestant establishes the existence of the basis for the rebuttable
presumption of undue influence, the burden of proof shifts to the proponent of the will to
establish by a preponderance of the evidence the nonexistence of undue influence.
Carter v. Carter
526 So. 2d 141 (Fla. 3d DCA 1988)
Rule: A person who procures a will in order to favor the interest of a third party may still be
guilty of undue influence even though he himself was not made a substantial beneficiary.
Attorney-Client Relationship
- An attorney generally is prohibited from drafting a will for his personal benefit because of the
conflict of interest it presents.
- The Florida Bar states:
Gifts to Lawyer or Lawyers Family. A lawyer shall not solicit any substantial gift from a client,
including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or
a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift
is related to the client. For the purposes of this subdivision, related persons include a spouse,
child, grandchild, parent, grandparent, or other relative with whom the lawyer or the client
maintains a close, familial relationship.

Chapter 5. Fraud, Duress, Mistake, Spoliation, and Tortious Interference

A. Fraud
Fraud in the execution- occurs when the document has been switched or deliberately altered. It
could also occur when the testator is misled as to the type of document he is signing. If a person
intentionally misled the testator as to the contents of the will, or switched the pages before the
will was executed, that person may have committed fraud in the execution. i.e. Someone tells
you that you are signing a document other than a will to get you to sign the will.

Fraud in the inducement- occurs when a testator who is lied to may fail to devise property to a
potential beneficiary solely because of the lie. i.e. someone might knowingly claim that an
intended beneficiary is dead when in fact that person is alive. In this case, the testator knows
what is in the will but does not know the real facts. If the testator was intentionally misled into
forming a testamentary intent that he would otherwise not have formed, the lie may constitute
fraud in the inducement.
Fla. Stat. 732.5165- A will or portion thereof, is void if its execution is procured by fraud. If
the entire will has been obtained by fraud, the entire will is void. If the offending conduct affects
only part of the will, the statute voids only that part. (the challenger/contestant of the will has the
burden of proof when claiming that the will was executed fraudulently).
B. Duress
Fla. Stat. 732.5165- provides the same rule for duress as fraud. Duress, sufficient to invalidate
a will or devise, requires a showing that some threat of physical harm or coercion was made
against the testator. Any will or portion thereof executed under duress is void.
C. Mistake
-Fla. Stat. 732.615- allows a court to reform a will to correct mistakes even without ambiguity,
as long as there is clear and convincing evidence of the testators intent. However, if the will is
beyond reformation, Fla. Stat. 732.5165 voids a will, or a provision of a will, that was procured
by mistake. If the entire will is procured by mistake then the entire will is void, however, if only
a portion of the will is void then only that portion of the will is void. (This is what the testators
intent would have been but for the mistake; then the court may fix the will).
Mistake in the inducement- The will was based on a mistaken belief. (good faith). i.e. when you
believe that one of your sons was wealthy, when in fact they were on the in the same position as
the other son. It cannot be that someone lied to you about your sons wealth because that would
be fraud in the inducement, it must be an honest mistake.
Mistake in drafting- There was a mistake the way the will was drafted or executed. (i.e. If a wife
and husband signed on each others signature line)
D. Effect of Voiding Will Provisions
If the decedents entire will is invalidated, and no prior will is operative, the decedent will die
intestate. If only a portion of the will is voided, the affected property may go to other devisees or
may pass by intestate succession.
- If a later will is void any language revoking a prior will is ineffective.
IV. Spoliation
Spoliation- is a post-execution change in the will by an unauthorized third person. A challenge
based on spoliation requires establishing that an unauthorized change occurred. If that challenge
is successful, the focus shifts to establishing the terms of the original will. If the original wills
terms can be established, the will, as originally written, may be admitted to probate. (i.e.
changing the pages of a will).

Lowy v. Roberts
453 So. 2d 886 (Fla. 3d DCA 1984)
Rule: In a case of alteration or spoliation, the court must, to the extent possible through the
reception of relevant and competent evidence, determine and enforce the contents of the true,
unaltered will.
V. Tortious Interference
Tortious interference- arises when one party convinces a testator to devise property in a manner
that deviates from the expectations of family members or other potential devisees. You can only
sue under tortious interference if you have exhausted all of your remedies in probate. When you
sue you are filing the suit against the person who interfered. In probate, however, you are just
contending the will, not anyone specifically. (This is a different claim from undue influence,
undue influence would be brought in probate court while tortious interference would be brought
in civil court).
3 things needed to prove tortious interference:
(1) That the wills contestant would have received a portion or greater portion of the
estate.
(2) Defendant intentionally engaged in wrongful conduct.
(3) Defendants actions influenced the testator and were the proximate cause of your
decreased portion or lack of any portion in the estate.
Neumann v. Wordock
873 So. 2d 502 (Fla. 2d DCA 2004)
Rule: If adequate relief is available in a probate proceeding, then that remedy must be exhausted
before a tortious interference claim may be pursued. A probate proceeding will not provide an
adequate remedy when the distribution of assets sought by an aggrieved party cannot be provided
in the probate proceeding.
Schilling v. Herrera
952 So. 2d 1231 (Fla. 3d DCA 2007)
Facts: When decedent died Ms. Herrera did not notify decedents brother and started probate
proceedings without his knowledge. It was only after probate was completed that Herrera
notified Schilling of his sisters death. Issue(s): Whether plaintiff was precluded from proving
the essential elements of his claim for tortious interference with an inheritance where the alleged
wrongfully procured will had been probated in a Florida court and plaintiff had no notice of the
probate proceeding? Rule: To state a cause of action for intentional interference with an
expectancy of inheritance, the complaint must allege the following elements: (1) the existence of
an expectancy; (2) intentional interference with the expectancy through tortious conduct; (3)
causation; and (4) damages. The court found that because Herrera intentionally deprived
plaintiffs brother of knowledge of his sisters death and of the subsequent probate proceedings,
Schilling was entitled to pursue his tortious interference claims without exhausting his options in
probate.

DeWitt Rule: The rule is that if adequate relief is available in a probate proceeding, then that
remedy must be exhausted before a tortious interference claim may be pursued. If the
defendants fraud is not discovered until after probate, plaintiff is allowed to bring a later action
for damages since relief in probate was impossible.
-The Dewitt rule will not apply when plaintiffs had an adequate remedy in probate; the
plaintiffs had a fair opportunity to pursue their remedy; and the plaintiffs failure to
pursue their remedy was due to their lack of diligence.
Claveloux v. Bacotti
778 So. 2d 399 (Fla. 2d DCA 2001)
Issue: Whether a plaintiff may assert a tortious interference claim before the testators death?
Rule: You must wait for the testators death to challenge the will as a product of undue influence
or fraud in the probate court first, and only once you have exhausted that remedy may you
proceed with a tortious interference claim.
Chapter 6. Amendment and Revocation; and Dispositions by Other Means
When the testator wants to make a minor change to a will but does not want to revoke the entire
will he can simply execute a codicil.
Codicil- is a testamentary instrument ancillary to a will that adds to, varies, or revokes provisions
in the will. A codicil must be executed with the same formalities as a will.
III. Revoking or Amending a Will or Codicil.
-Florida probate code provides two means by which a testator can revoke a will or codicil:
(1) by subsequent writing or
(2) by physical act.
- The testator must have testamentary capacity at the time of the revocation or amendment.
- The revocation of a will, or part thereof, may be challenged on the grounds that the revocation
was procured by fraud, duress, mistake or undue influence
A. Express Revocation by Subsequent Writing.
- Revocation by subsequent writing may be accomplished by any writing, not necessarily a will
or codicil. (can be used to revoke the entire will or just a part of it).
The subsequent writing must be executed with the same formalities required when
executing a will: testator must sign the document at the end, in the presence of two
witnesses, and the witnesses must sign the document in the presence of the testator and in
the presence of each other.
B. Revocation by Inconsistent Subsequent Writing.
- If the new will does not mention a revocation of the prior will and both wills are valid and have
inconsistent terms, then the later will revokes the prior inconsistent terms. Does not revoke the
entire will, just the inconsistent terms.
C. Revocation by Act.

A testator may physically affect the validity of a will or codicil by burning, tearing, canceling,
defacing, obliterating, or destroying a will and the testator intended a revocation by that act. A
will that is revoked by subsequent act is completely revoked. A testator may not use subsequent
acts to amend or revoke part of a will. The testator may direct that another person act on the
testators behalf when physically revoking the will. The proxy must perform the act in the
testators presence and at the testators direction pursuant to Fla. Stat. 732.506.
In re Estate of Bancker
232 So. 2d 431 (Fla. 4th DCA 1970)
Issue: Whether the decedent needs to see the will being destroyed for it to be a valid revocation?
Rule: The requirements for a valid revocation of a will must be strictly observed. Fla. Stat.
731.14 provides: A will may be revoked by the testator himself or by some other person in his
presence and by his direction, by burning, tearing, canceling, defacing, obliterating or destroying
the same, with the intent and for the purpose of revocation. The statute specifically provides the
revocation must be made in the presence of the testator, thus, the revocation in the instant case is
not valid because the decedent was not in the room when the will was physically destroyed. The
revocation must take place in the physical and mental presence of the testator.
Moneyham v. Hamilton
168 So. 522 (Fla. 1936).
Issue: Whether an intention to revoke a will was sufficient to constitute a revocation when the
will was not physically destroyed and there was no new will? Rule: The statute must be followed
explicitly and mere intent without following the statute will not suffice. The mere intention to
revoke a will, unaccompanied by any act of testator to execute that intention, will not be
sufficient to revoke the will, even though the execution of the intention was frustrated by the
fraud and improper conduct of other persons.
IV. Revival or Republication of Revoked Will or Codicil.
- If the testators valid second will revoked his first will, the first will remains revoked even if the
testator later revokes the second will. It does not matter whether the first will was destroyed or
still exists. Fla. Stat. 732.508(1). Likewise, if a testator revokes a will, he revokes all codicils
to that will. Fla. Stat. 732.508(2). The outcome is different if the testator used a codicil to
revoke part of a will or codicil. If he revokes that later codicil, the statute presumes he intended
to reinstate the earlier revoked will or codicil. The earlier provisions remain revoked only if
there is evidence that the testator did not intend to revive them. Fla. Stat. 732.508(2).
- Fla. Stat. 732.5105 allows the testator to execute a codicil that refers to a previous will. So
long as the codicil complies with the formalities, the codicil republishes the earlier will with any
modifications made by the codicil. The testator can execute a codicil that republishes a will. In
both cases, the testator must observe the formalities. Testators can use the methods provided by
Fla. Stat. 732.511 to reinstate wills that have been revoked and wills that are invalid for any
other reason.
- Other ways to reinstate a will are to re-execute it, i.e. re-sign it, and sign off on any changes
according to the formalities of making a will.
In re Estate of Tolin
622 So. 2d 988 (Fla. 1993)

Issue: Whether a codicil to a will may be revoked by destroying a photographic copy if the
testator believed that by such act he was destroying the original and the testator intended to
revoke the codicil? Rule: In order for a testator to effectively revoke a codicil, there must be a
joint operation of act and intention to revoke. Section 732.506 requires the intentional
destruction of the original will or codicil in order to effectuate a revocation. The use of terms
will or codicil, which have specific statutory definitions, shows a legislative intent that in order
to effectively revoke a will or codicil by a physical act, the document destroyed must be the
original document. The revocation would even be ineffective if the testator destroyed a correct
copy.
In re Estate of Kuhn
286 So. 2d 276 (Fla. 3d DCA 1973).
Issue: Whether there was sufficient evidence before the trial judge to rebut the presumption of
revocation created by the fact that the will was apparently revoked pursuant to Fla. Stat.
731.14(1)? Rule: The criteria for determining the validity of a torn or mutilated testamentary
document is the determination of the intent of the testator evidencing that the purpose of the
tearing or mutilation was to revoke the will. If a will is found in a mutilated state, then there is
presumption that the decedent intended for the will to be revoked. The contestant must then
produce enough evidence to rebut the presumption that the decedent intended for the will to be
revoked. The presumption can be rebutted by showing incapacity of the testator, the revocation
was induced by fraud (i.e. someone else did it without decedents direction), or you can show that
the document was mutilated for another reason (i.e. mistakenly torn).
Jones v. Shifflet (In re Estate of Shifflet)
170 So. 2d 96 (Fla. 3d DCA 1964)
Facts: Testatrix altered her will by changing the names of the beneficiaries. However, rather than
signing the end of the document she merely initialed in the margins of the altered paragraphs in
the presence of two witnesses, who also signed. Issue: Whether the attempted partial revocation
of the will was accomplished with the same formality as the execution of the will? Rule: Fla.
Stat. 731.13 provides: A will or any part thereof may be revoked or altered by a subsequent
written will, codicil or other writing, declaring such revocation or alteration; provided, that the
same formalities required for the execution of wills under this law are observed in the execution
of such will, codicil or writing. The testatrix did not strictly adhere to the statutory requirements
necessary to execute a valid will because she did not sign the revocation at the end of the
document. Accordingly, the attempted partial revocation was ineffective and the will as
originally written was entitled to probate. When a decedent fails to observe the formalities for
execution of a will his attempt at a partial revocation must be declared invalid. When an
attempted partial revocation of a will or codicil is found invalid, the will or codicil as originally
written must be admitted to probate.
V. Testamentary Dispositions Involving Other Documents
A. Incorporation by Reference and Acts of Independent Significance.
- Fla. Stat. 732.512(1) lets a testator refer to a pre-existing writing and incorporate it by
reference into his will. The will must clearly indicate the testators intent to incorporate the
document. Merely mentioning the other document is not sufficient. The will must also describe
the writing well enough to allow its identification. (i.e. a trust document).

- Fla. Stat. 732.512(2) lets a testator dispose of property based on acts and events rather than
based on a devise in the testators will. The acts and events must have independent
significance. They must have significance other than their effect on the dispositions made by the
testators will. The statute indicates that the execution of a will or a trust by another person can
be an act of independent significance. It does not matter when the acts or events occur in
relation to the making of the will. i.e. My car to Fred, no matter how many cars you own and
sell between the time you execute that clause and your death, Fred will still receive the car you
own at the time of your death because the buying and selling of your cars are acts of independent
significance.
B. Devise to an Existing Trust.
-Fla. Stat. 732.513 lets a testator devise property to the trustee of a trust. The trust must exist
when the will is executed, or the two documents must be executed concurrently. This type of
devise is valid even if the trust is revocable or is amended after the wills execution. If the trust is
deemed to be invalid then the estate assets devised to that trust will go into the residuary.
- When you make an inter vivos trust and then you make a will which names the trust as a
particular devisee the will. i.e. The will says My house to Trust.
C. Separate Written List of Tangible Personal Property.
- Fla. Stat. 732.512(1) allows the testator to make a list of such property and the intended
recipients. The testator can change the list and can make multiple lists. If there are multiple lists,
they are all effective to the extent they do not conflict. If they conflict, the last list governs.
These lists may be written before or after the will is executed and do not require any witnesses.
Requirements: First, the testator must sign each list. Second, the property and recipients
must be described with reasonable certainty. Third, the testators will must refer to the
possible existence of such a list.
- An item on a separate list is not valid if it is specifically devised in the will.
In re Estate of Baer
446 So. 2d 1128 (Fla. 4th DCA 1984)
Issue: Whether revoking the trust revoked the will? Rule: When you incorporate a document
into your will by reference, the terms of that document will be employed as testamentary clauses.
Revoking a document incorporated by reference does not revoke the entire will.
Chapter 7. Dependent Relative Revocation; Lost or Destroyed Wills; and Later Discovery
of a Will.
Dependent Relative Revocation (DRR)- is a doctrine invoked to prevent intestacy in situations
involving a revoked will. It requires a finding that the decedent preferred a revoked will to
intestacy and that the attempted revocation was conditional. (It is the last validly executed will,
that was revoked that will be used).
DRR is not invoked merely because the testator had a revoked will, the court will not
make this finding unless there is evidence to the effect that the decedent did not want to
die intestate based on the decedents testamentary scheme.
Stewart v. Johnson
194 So. 869 (Fla. 1940)

Facts: Decedent validly executed a will in 1937. In 1938 decedent decided that he would make
another will revoking the first one, however, this will was not validly executed because only one
witness was present at the signing. Issue: Whether or not the doctrine of dependent relative
revocation is applicable so as to allow the 1937 will to be re-established and admitted to probate?
Rule: Where testator makes a new will revoking a former valid one, and it later appears that the
new one is invalid, the old will may be re-established on the ground that the revocation was
dependent upon the validity of the new one, testator preferring the old will to intestacy. The fact
that a new will contains a clause revoking all former wills does not prevent DRR.
Note: The doctrine of DRR requires a finding that not only did the testator prefer to die testate
but also that the provisions of the invalid will are not materially different from the prior will.
Note: DRR applies to entire will, not to portions of a will.
IV. Lost or Destroyed Wills
- Lost or destroyed wills present two challenges. One relates to establishing the terms of the
will. If the wills terms cannot be established, the estate is likely to pass by intestacy. The second
challenge relates to the presumption that the will is missing because the testator destroyed the
will with the purpose and intent of revoking it.
- When a will was in the possession of the testator and it cannot be found upon the testators
death, a rebuttable presumption arises that the testator destroyed the will with the intent to revoke
it. If the presumption is rebutted, and it is found that the testator did not intend to revoke the
will, then the terms of the will need to be established for probate administration.
A court is unlikely to treat the presumption as rebutted unless (1) persons who
would benefit by the wills destruction had access to the will and the opportunity
to take it or (2) there are other factors that explain why the will is missing.
- Under Fla. Stat. 733. 207 the contents of a lost will may be proven by the testimony of two
disinterested witnesses who knew the terms of the will or by presentation of a correct copy of the
will and the testimony of one disinterested witness. If this testimony is not available, then the
estate will pass through intestacy.
In re Estate of Parker
382 So. 2d 652 (Fla. 1980)
Issue: Under Chapter 733.207(3) of the Florida Statutes (1977) does the language correct copy
mandate an identical copy such as a carbon or Xerox copy or will a substantial copy suffice?
Rule: The words correct copy mean a copy conforming to an approved or conventional
standard and that this requires an identical copy such as a carbon or photostatic copy.
Brennan v. Estate of Brennan
40 So. 3d 894 (Fla. 5th DCA 2010)
Rule: Basically, the witnesses that are needed to establish the validity of a copy of a lost will
have to be disinterested witnesses and the testimony of party who is a beneficiary of the will or
has another interest is not valid.
Tartaglia v. Hatten (In re Estate of Hatten)
880 So. 2d 1271 (Fla. 3d DCA 2004)

Issue: What are the remedies offered when someone has maliciously destroyed a will? Rule:
When a will has been maliciously destroyed, there are two procedures which are potentially
available to rectify the situation. The first option is a petition under the Florida Probate Code to
establish the contents of the destroyed will. The alternative remedy is an action for tortious
interference.
- Interested person- Any person who may reasonably be expected to be affected by the outcome
of the particular proceeding involved.
V. Later Discovery of a Will
- If a will or codicil is found after administration of the estate has commenced, that document
may be admitted to probate upon petition by any interested person. If an estate has been fully
administered and closed, this statutory provision will not allow reopening it despite the later
discovery of a will or codicil.
- Although a will that is found too late cannot be probated, an interested party might be able to
bring a civil action, such as for tortious interference with inheritance, if the will was intentionally
withheld from probate.
Chapter 8: Ambiguities and Rules of Construction
Latent ambiguity: ambiguity that is not ascertainable from a reading of the will. Instead it
comes to light when the personal representative seeks to carry out its terms. For latent
ambiguities, you can bring in extrinsic evidence to determine the intent of the testator
Patent ambiguity: ambiguity that is obvious from the face of the document
- Generally you can only use the four corners of the document to determine intent of the
testator
- If a will contains an ambiguity or mistaken description, a court can consider evidence of
the testators intent to resolve the ambiguity or correct the description.
- If a particular ambiguity involves multiple beneficiaries, only one of whom is arguably
the correct beneficiary, the potential beneficiaries may agree to share the devise rather
than risk losing it entirely.
- 733.815 permits interested persons to enter into written contracts to alter the interests,
shares, or amounts to which they are entitled but a private agreement cannot override the
rights of creditors or taxing authorities. It is also subject to the personal representatives
duty to administer the estate for the benefit of interested persons who are not subject to
the agreement.
Harbie v. faulk
Facts: Will only said there was one child but in fact there were two children this created a
latent ambiguity. Because latent ambiguity, parol evidence was allowed to determine testators
intent. Parol evidence included the affidavit of the drafter of the will and the affidavit indicated
testator intended only the one child to inherit.
Dutcher v. Estate of Ditcher do it yourself will

Rule: If there is an irreconcilable conflict between two provisions in the will, the latter usually
wins because it is the last expression of the intention of the testator where the provisions refer to
the same subject matter (however first attempt should be to harmonize the provisions and if not
possible the first is rejected only to extent necessary to give effect to later)
Latent ambiguity can use extrinsic evidence
Patent ambiguity need to resolve based on four corners of the document.
-Attorney who drafts will and client who reviews it share responsibility from resolving patent
ambiguities
Rules of Construction
Rules of construction apply to interpreting wills unless a contrary intention is indicated by the
will
1) Simultaneous death law beneficiary is treated as having died first
2) Lapse and antilapse- if at testators death there are no surviving descendants of devisee or
if deceased devisee was someone other than testators grandparent (or a descendant
thereof) the devise lapses
3) Failure of testamentary provision: a failed non-residuary devise becomes part of the
residue and goes to the residuary devisees. If there is more than one residuary taker, and a
devise to one of them fails, the other residuary takers share the failed devise in proportion
to their interests in the residue.
4) Changes in securities get all of the securities based on the original one you were
supposed to get (if not based on value of those securities)
5) Nonademption of specific devises: see chapter 9
6) Exercise of power of appointment
7) Generic terms: class gifts and gifts based on relationship are deemed to include
individuals who are adopted or who are born out of wedlock
8) Ademption by satisfaction
9) Devises to multigeneration classes: these are per stirpes
Contents of a home- means the items of personal property which convert an empty building into
a habitable dwelling.
Chapter 9. Types of Devises; Abatement; Ademption; Accessions; Exoneration; and
Apportionment of Taxes.
Four types of devises: specific, demonstrative, general, and residuary.
III. Types of Devises
- Fla. Stat. 733.805 lists the order in which devises abate to pay debts, family allowance,
exempt property, elective share charges, and expenses of administration.
- 733.805 applies to four types of devises: specific, demonstrative, general, and residuary.
Specific- a specific devise is a devise of property which is particularly designated and which is to
be satisfied only by the receipt of the particular property described. The devise can be of a
specific item of property or a specific type of property. (i.e. giving you my piano).

Demonstrative- A demonstrative devise is a devise of a fixed amount payable first from a

particular fund or from the proceeds of the sale of a particular item, and second, from general
assets to the extent the particular fund or item is insufficient or is not part of the estate. (i.e.
giving you $1000 from the sale of my piano).
General devise- general devises are devises that are neither specific nor demonstrative, but which
indicate a particular amount or quantity to be received. General devises can be of property other
than money. The testator does not even have to own the property or have the cash at death. The
personal representative may need to sell assets to have the cash necessary to pay the general
devise or to purchase the property needed for the general devise. (i.e. I give you $500/ not from
any particular asset).
Residuary devises- are gifts of whatever probate assets have not been devised by specific,
demonstrative, or general devises. This may be the only devise in the will. In such a case the
devise is of all assets remaining after satisfaction of the estates obligations.
Babcock v. Estate of Babcock
995 So. 2d 1044 (Fla. 4th DCA 2008).
Issue: Whether the bequest contained in the decedents will constituted a specific bequest of
property so that the property would not be included in statutorily exempt property which the
surviving spouse may claim? Rule: Fla. Stat. 732.402(6) provides that the surviving spouse
has the right to a share of the exempt property of the estate, which includes certain household
furniture, furnishings, appliances, and automobiles. Fla. Stat. 732.402(1) states that property
specifically or demonstratively devised by the decedents will to any devisee shall not be
included in exempt property.
1. A will may contain a specific devise with an alternative general devise.
2. A demonstrative devise has been defined as a devise of a certain sum of money, stock, or
other property payable out of a particular fund, property, or security; but it cannot constitute a
gift of the corpus, nor can it show a purpose of releasing the general estate from liability in the
event the particular fund, property, or security should fail.
IV. Abatement
- Abatement is when you have to take from one devise to pay for another devise, or when you
have to take away from some devises because the estate has to be used to pay off something else
like fees or creditors.
A. Abatement of Devises
- A testator can include abatement rules in the will. In that case those rules govern which
devisees share are to be used to abate.
- If the will is silent, the abatement rules of Fla. Stat. 733.805 apply. Those rules reduce the
amounts that would otherwise pass to heirs in the order below (last to first)
1. Specific devise/Demonstrative (my interest in a (specific item)).
2. General devise
3. Residuary devise
4. Property that passes intestate (first one that the abatement is taken from)
- Assets that are exempt, such as homestead, when devised to a qualified heir, retain their exempt
status. Such devises of exempt property are not subject to the rules of abatement.

In re Estate of Potter
469 So. 2d 957 (Fla. 4th DCA 1985)
Facts: The mother left her daughter the house and then her son what the house was worth to be
administered in cash to be taken from the trust account. Issue: What interest abates first? Rule:
The sons interest is first to abate because it is a general devise and the daughters interest is a
specific devise. General devises abate before Specific devises. Now with the Fla. Stat. that
allows the court to reform the will in order for the testators intent to be reached, the court may
have reformed the will to give son and daughter equal shares.
B. Priority of Claims
- Fla. Stat. 733.707(1)(a)-(h) assigns claims against the estate to a series of eight classes.
Estate assets are used to pay Class 1 claims before Class 2 claims and so on. If assets are
insufficient to cover all claims within a single class, creditors in that class receive only partial
payment and those in lower classes receive no payment at all. Partial payment is proportional to
the amount of the total claims in the particular class.
Claims:
Class 1- those related to the expenses of estate administration
Class 2- expenses of the decedents funeral, including grave marker. (max. $6000)
Class 3- those debts and taxes that have preference under federal law and certain other
claims, such as those for recoupment of Medicaid benefits.
Class 4- relate to the last 60 days of the decedents final illness.
Class 5- covers the family allowance to maintain certain family members during the
estates administration. (max. $18000)
Class 6- are any court-ordered child support arrearages
Class 7- business debts incurred during the administration of the decedents estate.
Class 8- All other claims
- Claimants may want money rather than payment in other assets, so Fla. Stat. 733.612(5) gives
the personal representative power to dispose of estate assets, subject to limitations that may be
imposed in the decedents will. The type of devise and the order of abatement will affect which
assets the personal representative can sell.
V. Ademption by Extinction
- Ademption is a concept that applies because a particular asset that the decedent bequeathed is
not part of the decedents probate estate.
- Ademption by satisfaction- applies if the devisee received a gift during the testators lifetime
and the testator intended the gift to satisfy devises to that individual in whole or in part.
- Ademption by extinction- applies when specifically devised property is not part of the testators
probate estate.
- If the testator did not own property devised in the will there are three possibilities:

1. One possibility is that the devisee is entitled to the property devised, and the
personal representative must acquire the property for this purpose.
2. A second possibility is that the devisee is entitled to receive some other property.
3. A third possibility is that the devisee is not entitled to receive anything.
- The choice among these possibilities is affected by two factors: (1) the type of devise; and (2)
the reason the property is not part of the estate.
- Ademption by the extinction affects only specific devises.
- A testator may void the result of ademption by extinction by providing an alternative devise in
the event the specifically devised asset is not part of the probate estate.
B. Effect of Testators Intent When Property Is Not in Estate
- If a testator does not own all of the specifically devised property at death, Fla. Stat.
732.606(2) covers the devisees rights. It gives the devisee the right to any remaining
specifically devised property. It also gives the devisee the right to (a) any unpaid purchase price
and security interest if the testator sold the property before death; (b) any unpaid part of a
condemnation award; (c) any unpaid insurance proceeds; and (d) any property owned because
the testator foreclosed on property covered by a specifically devised obligation or received
property in lieu of foreclosure.
Ott v. Ott
418 So. 2d 460 (Fla. 4th DCA 1982)
Facts: Decedent bequeathed his company to his two children, however, before he died he sold
his stock and the corporation and was issued a mortgage and promissory note for the worth of the
stock. Issue: Whether the decedents children are entitled to the mortgage and promissory note
even though they were bequeathed the company? Rule: Fla. Stat. 732.606(1) applies only to
specifically devised property sold by a guardian of the property. Fla. Stat. 732.606(2) refers to
all testators and thus does not apply only specifically to testators for whom guardians have been
appointed.
Hall v. Jones (In re Estate of Jones)
472 So. 2d 1299 (Fla. 2d DCA 1985)
Facts: Decedent bequeathed a house to his niece, however prior to his death he sold the house
but kept the proceeds. Issue: Whether a testators intent has any bearing on a question of
ademption? Rule: In discerning the intent of the testatrix, we first look at the will. In absence of
proof of an intent that the gift fail, there should be no ademption. Trace/Intent theory- you have
to be able to trace the money received for the specific devise and then show that the testator
intended for the beneficiary to receive the new form of the specific devise. Allows for extrinsic
evidence. Identity theory- is completely objective, i.e. no intent, if the specific devise is there
then you get it, if not, then you receive nothing.
1. The devisee of a specific devise benefits vis--vis other devisees if the particular asset is in the
estate and total estate assets are inadequate to fund all devises. Absent language in the will to the
contrary, specific devises abate after residuary and general devises. The devisee of a specific
devise is disadvantaged vis--vis other devisees if the particular asset is not in the estate and the
probate court finds that there is ademption by extinction.

VI. Devises of Securities: Accessions and Ademption

A. Events Related to Securities
- The price of stock and stock dividends fluctuates.
B. Default Rules for Devise of Securities
- Rather than require a testator to amend a will each time a corporation pays a stock dividend or
enters into a reorganization, Fla. Stat. 732.605 (only applies to specific devises) provides rules
of construction that cover these events.
- Fla. Stat. 732.605(1) distinguishes between a specific devise of certain securities and a
devise of their equivalent value. If the devise is of the securities themselves, and the testator has
disposed of a portion before dying, the devisee is entitled to receive only the securities remaining
in the estate.
- Fla. Stat. 732.605(1)(b) provides that if the corporation issued a stock or dividend then the
devisee is entitled to the additional shares. This rule applies only if the dividend or split is
initiated by the entity rather than by owner action, such as through the exercise of an option to
purchase additional shares. If instead, the corporation lets its shareholders choose whether to
receive dividends in cash or in stock, dividends reinvested directly into more shares are not
treated as stock dividends. Because the shareholder could choose between cash or additional
shares, the action is not initiated by the corporation.
- If the corporation merges into another or undergoes some other corporate reorganization, Fla.
Stat. 732.605(1)(c) entitles the specific devisee to shares of the second entity. Again, the
action must have been initiated by the entity, not by the owner.
VII. Exoneration
- A gift of property is worth more to the beneficiary if it is unencumbered than if it is burdened
by a mortgage or other debt. Fla. Stat. 733.803 provides that the debt is to be paid from the
residue only if the will shows that was the testators intent. A will provision to pay debts,
without more, does not establish the requisite intent.
Woodward v. Smith (In re Estate of Woodward)
978 So. 2d 865 (Fla. 2d DCA 2008)
Facts: Brian, who is a son of the decedent, challenges payments made by the personal
representative to satisfy an encumbrance on the decedents interest in certain properties which
were specifically devised to Brians brother. Issue: Whether the residual devise left to Brian
should be used to satisfy the encumbrances on the specific devise of property left to his brother?
Rule: Fla. Stat. 733.803 provides that the specific devisee of any encumbered property shall
be entitled to have the encumbrance on devised property paid at the expense of the residue of the
estate only when the will shows that intent and that a general direction in the will to pay debts
does not show that intent.
Chapter 10. Presumed IntentPretermission and Divorce
III. Pretermitted Spouses
- Dissolution or annulment of marriage voids only provisions affecting the former spouse.

- When a testator marries after making a will, Fla. Stat. 732.301 allows the surviving spouse to
claim the equivalent of an intestate share of the testators probate property unless one of three
exceptions applies: (1) a provision has been made for, or waived by, the spouse by prenuptial or
postnuptial agreement; (2) the spouse is provided for in the will; or (3) the will discloses an
intention not to make provision for the spouse.
1. Prenuptial or Postnuptial Agreements
Before the marriage takes place, the future spouse may agree not to seek a share in each others
property or to seek a share that is smaller than the surviving spouse could demand using the
statutory protections. Their agreement may cover property passing by will, property passing by
intestacy, or property passing by other means. The agreement itself may provide what each
spouse can claim and may bind the other spouses estate.
2. Providing for Spouse in Will
- Although Fla. Stat. 732.301 does not give a pretermitted spouse right if that spouse is
provided for in the will in contemplation of marriage, it does not provide any guidance regarding
whether a spouse is provided for in the will. A testator could provide for a spouse with a devise
as small as a dollar.
- When a will executed before marriage contains a provision for named individual who later
becomes the testators spouse, the surviving spouse has the burden of proving that the provision
was not made in contemplation of marriage.
- pg 224 Estate of Ganier v. Estate of Ganier- Spouse has to be provided for in contemplation of
marriage to not receive anything as a pretermitted spouse, if the spouse is provided for in the will
as a friend before the couple contemplated marriage, then the spouse is entitled to their statutory
share as a pretermitted spouse.
- A surviving spouse who is found to have procured a marriage to the testator by fraud, duress, or
undue influence is not entitled to receive a pretermitted spousal share. Fla. Stat. 732.805(1).
This limitation applies unless the decedent and the surviving spouse voluntarily cohabitated as
husband and wife with full knowledge of the facts constituting the fraud, duress, or undue
influence or both spouses otherwise subsequently ratified the marriage.
3. Will Indicates Intent to Omit Spouse
The testator may choose not to include for a future spouse at all and may include a provision in
the will manifesting that intent. (Expressly or impliedly). If the will indicates a disinheritance
of a future spouse, that spouse cannot claim to be pretermitted but may claim an elective share.
B. Rights of a Pretermitted Spouse
A pretermitted spouse receives the share of the decedents probate estate that he or she would
have received if the decedent had died intestate. The percentage is applied to the amount
remaining after reducing the probate estate by debts, costs of administration, and an appropriate
share of taxes.
C. Effect on Other Devisees
If a pretermitted spouse receives property, one or more other devisees lose part of their devises.
IV. Pretermitted Children

- Fla. Stat. 732.302 allows a surviving child who was omitted from the testators will to claim
an amount equal to an intestate share of the testators probate property. To be eligible, the
omitted child must have been born or adopted after the will was executed. In addition, the child
must not have received the childs share as an advancement. Even if the child meets these
requirements, the child cannot benefit if it appears from the will that the omission was
intentional. The child also cannot benefit if the testator had one or more children when the will
was executed and devised substantially all (more than 50%) of the estate to the other parent of
the pretermitted child if that other parent survived the testator and is entitled to take under the
will. All that matters is that the parent of the pretermitted spouse received a substantial portion of
the decedents estate.
- (If the testator gives a class gift, i.e., to all my children, then a child born after the execution
of the will still receives their share of the estate because they are included in the class gift.)
Azcunce v. Estate of Azcunce
586 So. 2d 1216 (Fla. 3d DCA 1991).
Facts: Child of decedent was born after the execution of the will but before the execution of a
codicil to said will. Issue: Whether a child who is born after the execution of her fathers will but
before the execution of a codicil to the said will is entitled to take a statutory share of her fathers
estate under Floridas pretermitted child statutewhen the will and codicils fail to provide for
such child and all other statutory requirements for pretermitted-child status are otherwise
satisfied? Rule: The execution of a codicil to a will has the effect of republishing the prior will as
of the date of the codicil. Thus, the child is not entitled to her statutory share because the codicil
acted as a republishement of the will and thus it was executed after her birth and the statute does
not apply. A contrary intent in the codicil to not republish the will controls.
V. Divorce and Annulment
If a couple is divorced, Fla. Stat. 732.507(2) states the will is administered as if the former
spouse died when the divorce, dissolution, or annulment occurred. The will provisions benefiting
the former spouse, including the appointment of the spouse as personal representative, become
void. However, there are two exceptions: (1) the testators will may contain provisions indicating
that the devise is to be valid notwithstanding the divorce; and (2) the dissolution or divorce
judgment contains such language. The statute requires that the will or judgment expressly
provide that the devise survives the divorce. However, any provisions to the spouses family will
remain valid despite dissolution of marriage unless the will indicates otherwise.
- Remarrying each other does not revalidate the provisions of the will that were voided by the
previous dissolution of marriage. The surviving spouse may have a pretermitted spouse claim.
Bauer v. Reese (In re Estate of Bauer)
161 So. 2d 678 (Fla. 1st DCA 1964)
Facts: husband and wife executed a will, they divorced, and then got remarried. Wife is unhappy
with her share devised in the will so she wants to be labeled as a pretermitted spouse. Issue:
Whether a spouse constitutes a pretermitted spouse as a result of them getting remarried and not
revising a will executed before the first marriage? Rule: Dissolution of marriage voids all
provisions regarding the surviving spouse and remarriage will not reinstate the provisions of the
will pertaining to the surviving spouse. If a subsequent will is not executed, then the spouse can
get her share of decedents assets as a pretermitted spouse.

Chapter 11. Lapse and Antilapse and Class Gifts

III. Lapse and Antilapse Provisions
A. Related Devisees
Fla. Stat. 732.603 (the antilapse statute) applies unless the testator has indicated a contrary
intent in her will. Antilapse applies when the deceased devisee was either a grandparent of the
testator or a descendant of a grandparent of the testator. Thus, it applies to devises to the
testators grandparents, parents, children, and siblings, and to descendants of any of those
relatives (i.e., nieces and nephews).
- Antilapse applies whether the devisees death occurred (1) before the will was executed or (2)
after the will was executed but before the testators death.
- It also applies in situations, such as disclaimer, in which the devisee actually survives the
testator but is treated as having predeceased the testator.
- When the antilapse statute applies the gift does not fail, instead, the property passes to the
deceased devisees descendants, per stirpes.
- However, the antilapse statute does not apply if the testators will shows a contrary intent. A
provision giving a devise to an alternate taker shows contrary intent and thereby blocks
application of the antilapse statute. Similarly, antilapse does not apply if a will provision
includes survivorship language even though it fails to name an alternate taker.
- Ademption is when the devise is not there to take; lapse is when the devisee is not there to take
the devise.
B. Unrelated Devisees
- When a unrelated devisee is outlived by the testator, the devise lapses even if the devisee has
descendants, unless the will indicates an intention to substitute another devisee. When devises
lapse they go to the residue.
IV. Individual and Class Devisees
A. Describing and Vesting Class Devises
- Generally, a class gift is presumed if the devisees are referred to only by group label (i.e., my
children).
- A gift to individuals is presumed if the devisees are referred to only by name and no group label
is included in the devise.
- If the devise refers to the devisees by name and by class then the court must determine the
testators intent. In deciding what the testator intended, a court must determine whether the class
was simply used to describe the devisees relationship to the testator or whether the testator meant
to devise a class gift.
- One question regarding group member designations with names or numbers is whether the
testator intended to allow later-born members to share the devise.
- When determining the members of a class, the rules of intestacy may apply to determine if a
person is considered a member of a class.
- Rules regarding children who are adopted or born out of wedlock apply to class gift
terminology unless the testator provides otherwise. (i.e. to all of my children, and two of his
children are adopted).
B. Application of Antilapse Rules to Class Gifts

If the devise is construed as a devise to a class, a class member who dies before the testator is not
removed from the class. Unless the testators will indicates a contrary intention, the deceased
class members descendants take in his place. This rule is inapplicable unless the devisees in the
class are testators grandparents or descendants of grandparents. It would also be inapplicable if
the predeceased member was a relative but was not survived by descendants. If the antilapse
statute does not apply to a class member, the other class members share the deceased members
devise.
- If the devise is construed as a devise to individuals, the antilapse rules discussed above apply
A. Lapse of Devise to an Individual
Fla. Stat. 732.101; How a failed devise is treated depends on the type of devise. If a specific,
demonstrative, or general devise fails, the property is added to the residue. If the property is
devised to residuary takers, and the devise to one of them fails, the other residuary takers share
the failed devise. If the entire residuary fails, the residue passes by intestacy.
B. Lapse of a Class Gift
Class gifts are less likely to lapse than are gifts to individuals. The reason for this is because the
surviving class members receive the deceased class members share if antilapse does not apply to
the devise.
In re Trust under Will of Hennes
240 So. 2d 859 (Fla. 4th DCA 1970)
Facts: Decedent devised in his will to the heirs of his nephews body and then named the
children. After the will was executed the nephew had another child. Issue: Whether the gift was a
class gift or a gift to individuals: Rule: After scrutinizing the language in the will, the Court
determined that the language for the benefit, care, comfort, maintenance and education of the
heirs of the body of my said nephew, were not words of mere description but dictated a
disposition to a class.
Lyman v. Folan (In re Estate of Wagner)
423 So. 2d 400 (Fla. 2d DCA 1982)
Facts: Look at case: Issue(s): 1. Whether the antilapse statue applies? 2. If it does not apply,
whether the lapse statute applies? Rule: The testators intent should be discerned from a
consideration of the entire will.Where a testators intent is obscured by ambiguous and
uncertain language, it is proper to invoke common law canons of testamentary construction in
order to determine the signification of the wording. A second fundamental rule of construction is
that words of survivorship relate to the time of the testators death in the absence of a
manifestation of a different intent.
Chapter 12. Homestead; Personal Property Exemptions; and Family Allowance
III. Homestead Protections
- Floridas homestead laws protect a homeowner, or the owners family, from certain creditors
and may also safeguard the family from transfers or disinheritance.
- The homestead exemption protects not only the debtor, but also the debtors family and the
State.
- The Florida Constitution sets forth certain requirements for property to qualify as homestead.

First, article X, 4(a)(1) provides certain acreage limitations. Homestead can extend to
one-half acre of contiguous land if the property is located within a municipality.
Property located outside a municipality is limited to 160 acres of contiguous land and
improvements thereon. (If property located outside a municipality is subsequently
incorporated into a municipality, the exemption continues to apply to the property as
if the inclusion never occurred, unless the owner consents to the more restrictive
acreage limitation).
Second, Florida has certain residency requirements on what constitutes homestead.
Third, only natural persons can claim the exemption. (a corporation cannot have a
homestead).
Ways to waive exemption status:
1. You have to file a petition to declare exempt property within a certain time period.
If the petition is not filed in time, then exemption rights are waived.
2. Post or prenuptial agreement
3. Sign a Waiver.
Davis v. Davis
864 So. 2d 458 (Fla. 1st DCA 2003)
Issue: Whether a Florida homestead not located within a municipality and consisting of no more
than 160 acres of contiguous land and improvements thereon may include a portion of such land
and improvements which is separate from the residence of the owner or the owners family?
Rule: The language limiting homesteads within municipalities to the residence of the owner or
the owners family does not apply to homesteads located outside municipalities. i.e. land outside
a municipality that has land for business attached to the homestead is still protected under Article
X of the Florida Constitution.
Bayview Loan Servicing, LLC v. Giblin
9 So. 3d 1276 (Fla. 4th DCA 2009)
Facts: Husband and wife were separated, however, he paid for a house that his wife and daughter
lived in. Rule: The Decedent was a natural person who owned property occupied by his wife and
child at the time of his death; thus, the property is homestead. Because decedent died leaving a
spouse, the descent of his property is controlled by section 732.401(1), Florida Statutes. As such,
the wife is entitled to a life estate in the homestead with a vested remainder to the descendents.
A. Claims of Creditors
- A homestead generally may not be forcibly sold to pay a homeowners creditors.
- Three types of debts can, however, be enforced against a homestead:
(1) debts for payment of taxes and assessments on the homestead; (i.e. property taxes
and income taxes).
(2) debts for the purchase or improvement of the homestead; and
(3) debts for labor performed on the real property, such as construction work, roofing,
or window installation.
- Unsecured creditors, such as credit card companies and persons who obtain but have not
recovered monetary judgments in lawsuits, cannot compel a homeowner to sell a homestead to
pay off those debts.

Chames v. DeMayo
972 So. 2d 850 (Fla. 2007)
Issue(s): Whether a homeowner can waive the homestead exemption without formally
mortgaging the propertythat is, in promissory notes, retainer agreements, or other purportedly
unsecured instruments? Rule: There are only 3 ways that you can alienate the homestead during
your lifetime: sale, gift or mortgage. However, you need your spouses signature in order to
alienate your homestead through one of these methods. (Even if you bought the house under your
own name). The only time you dont need your spouses signature is when youre adding her as
a tenant by the entirety. Policy: we dont want every contract to contain boiler plate language
waiving the clients right to homestead exemption. Most people do not read the entire contract
and may give up their homestead rights involuntarily.
1. The Florida Constitution does not place any dollar limitation on the value of the homestead
that may be exempt from creditors claims.
B. Preserving the Creditor Protection for Heirs
- When the owner of a homestead dies, the property is no longer considered his homestead. Fla.
Const. art. X, 4(b) provides that the exemption inures to the surviving spouse or heirs of the
owner.
- If the decedent devises the homestead property to a relative who does not qualify as an heir, or
devises it to a friend, it loses its protection from the decedents creditors. Similarly, if the testator
directs in her will that the homestead be sold following her death, the property is not protected
from creditors claims upon her death.
Snyder v. Davis
699 So. 2d 999 (Fla. 1997)
Facts: Decedent devised her homestead property to her granddaughter while her son, father of
the granddaughter, was still alive. Issue(s): Whether Kelli Snyder, as the granddaughter, may be
properly considered an heir under the homestead provision, qualifying her for protection from
the forced sale of the homestead property when her father, the next-in-line heir under statutory
intestate succession is still living? Rule: The homestead provision allows a testator with no
surviving spouse or minor children to choose to devise, in a will, the homestead property, with its
accompanying protection from creditors, to any family member within the class of persons
categorized in our intestacy statute. The word heirs, when determining entitlement to the
homestead protections against creditors is not limited to only the person or persons who would
actually take the homestead by law in intestacy on the death of the decedent. Instead, the court
held that the constitution must be construed to mean that a testator, when drafting a will prior to
death, may devise the homestead to any of that class of persons categorized in section 732.103.
To hold otherwise would go against public policy of protecting the family homestead. If the
definition of heirs were construed more narrowly, the testator, when making an effort to avoid
intestacy by drafting a will, would have to guess who his or her actual heirs would be on the date
of death in order to maintain the homesteads constitutional protections against creditors.

Pajares v. Donahue
33 So. 3d 700 (Fla. 4th DCA 2010)
Rule: When a testator specifies in the will that the homestead is to be sold and the proceeds are
to be divided, the homestead loses its protected status. Thus, where the will directs that the
homestead be sold and the proceeds added to the estate, those proceeds are applied to satisfy the
specific, general, and residual devises, in that order.
1. A deceased spouses relatives are included within the class of heirs to whom the
homestead exemption inures.
C. Restrictions on Alienation and Devise
Fla. Const. art. X, 4(c) imposes certain restrictions on the homestead owners ability to alienate
or devise the property.
- During his lifetime, a homeowner may not always freely dispose of the homestead. A married
person who owns the homestead may not transfer any interest in it, sell or mortgage it, without
the spouses joinder.
- Additional limits apply when the homeowner dies. The first limitation applies to a testator who
is survived by a minor child. In that case, any attempted devise of the homestead fails. The
second limitation applies when a decedent has no minor child but is survived by a spouse. In
that case, the decedent can devise the homestead only to the spouse Fla. Stat. 732.4015(1)
and any attempt to devise the homestead otherwise fail.
- In cases where an attempted devise would fail, the homestead descends to the homeowners
surviving descendants and spouse, if any. The surviving spouse receives a life estate and the
descendants receive a vested remainder.
- Although the existence of a minor child prevents the decedent from devising the property, the
remainder is not given only to the minor child. All descendants share the remainder interest, per
stirpes.
- Since 2010, however, instead of taking a life estate, a surviving spouse may elect to receive an
undivided one-half interest in the homestead as a tenant in common. If the spouse makes that
election, the descendants receive the other one-half interest. If there is no surviving spouse, the
descendants receive the entire homestead.
- A homeowner who is not survived by a spouse or a minor child may devise homestead property
to whomever he wishes.
- If the decedent and spouse own the property as tenants by the entirety, the surviving spouse
takes the property as the surviving owner. If the property continues to qualify as the surviving
spouses homestead, then, if she dies survived by a minor child, her descendants take the
protected homestead by intestacy.
In re Estate of Finch
401 So. 2d 1308 (Fla. 1981)

Issue(s): Whether the decedent could leave his spouse with less that a fee simple interest in a
homestead? Rule: Where a testator dies leaving a surviving spouse and adult children, the
property may not be devised by leaving less than a fee simple interest to the surviving spouse. If
a devise violates the Florida Probate Code and Constitution, it descends by way of intestate
succession.
City National Bank of Florida v. Tescher
578 So. 2d 701 (Fla. 1991)
Issue(s): Whether the decedent was permitted to devise homestead property when survived by
two adult children and a spouse who signed a antenuptial agreement waiving his homestead
rights? Rule: When a decedent is survived by no minor children and the surviving spouse has
waived homestead rights, there is no constitutional restriction on devising homestead property.
Article X, section 4(c) is designed to protect two classes of persons only: surviving spouses and
minor children. Petitioners are neither of these. Although the decedents husband was physically
alive at the time of her death, he had waived his rights to homestead through the antenuptial
agreement which he executed. Such a waiver is valid under Florida law. The spouses
antenuptial waiver of rights in the homestead is the legal equivalent of predeceasing the
decedent, for purposes of article X, section 4(c). Thus, decedent died with no one entitled to the
protection of article X, section 4(c), and the property could pass by devise under the residuary
clause of the will.
1. The Florida Supreme Court held that the definition for homestead in Fla. Const. art. X, 4 is
the same definition for purposes of the exemption from forced sale during lifetime, the inurement
of the exemption upon death, and the limitations on alienation during lifetime and upon death.
2. The Florida Constitution generally prohibits the devise of homestead when the owner is
survived by a spouse or minor child; however, it permits a devise to the spouse if there is no
minor child. The Florida Supreme Court interpreted the Constitution to allow the owner to devise
the homestead by either a specific or residuary devise to the spouse.
4. A virtually adopted child is considered an heir for homestead purposes.
5. If a homestead is exempt from the testators creditors, it is not subject to the abatement
provisions of Fla. Stat. 733.805. Normally, a general devise would abate after a residuary
devise; however, this rule does not apply to a protected homestead. The court held that a
residuary devise of homestead did not abate to pay a general devise. If the testator wants the
homestead to remain protected from his creditors after his death, his should not require that the
homestead be sold and the proceeds become part of the general estate.
6. A cooperative is not protected under the homestead exemptions because you own shares of the
cooperative not real property.
7. Mobile homes count as homestead, but the exemption does not survive the death of the owner
and there are no restrictions on alienation or devise.
*See questions on pg 276
D. Personal Representatives Power over Homestead

- Protected homestead is not property subject to administration in Florida. Fla. Stat.

733.608(1). Thus, as a general proposition, the personal representative of a decedents estate has
no right to take possession or control over a decedents protected homestead, Fla. Stat.
733.607(1), and the circuit court lacks jurisdiction over it.
- A personal representative may not at the outset know whether a property is a decedents
protected homestead. A court determination is needed. Prior to such determination, if the
property is not occupied by a person who appears to have an interest therein, the personal
representative may take actions to posses, protect, and preserve a property which reasonably
appears to be protected homestead. Fla. Stat. 733.608(2).
- The personal representative who elects to take possession of the property is not obligated to
rent it or otherwise make the property productive, but he is entitled to collect any income the
property generates for the benefit of those eventually determined to be entitled to the property.
- If a personal representative elects to take control of property which may be homestead, and
expends funds to preserve, maintain, insure, or protect the property, the personal representative
has a lien on the property and any income it generates to recover payment of sums advanced
from the estate to pay bills on the homestead. No lien exists for legal fees and costs of
administering an estate when the legal fees were incurred to benefit the estate as a whole and
were not specifically related to the protected homestead.
IV. Exempt Property
- Florida provides further protection to certain family members of a decedent through
constitutional and statutory provisions regarding exempt personal property. Article X, section
4(a)(2) of the Florida Constitution, exempts up to $1,000 of the decedents personal property
from forced sale. In addition, Fla. Stat. 732.402 protects $20,000 worth of certain household
items, two qualifying motor vehicles, prepaid tuition contracts, and benefits paid to a teacher or
school administrator under Fla. Stat. 112.1915.
- Fla. Stat. 732.402 defines what property qualifies for the exemption and who can claim the
property and receive it as exempt. Property that is exempted by Fla. Stat. 732.402 can be
claimed and received by the surviving spouse; however, the decedent can specifically devise the
property to anyone else and thereby deny the spouse the right to claim it. Fla. Stat. 732.402(5).
If there is no surviving spouse, the decedents children receive the right to claim the exempt
property, unless the testator devised it to others.
- One important statutory limitation is that the exemption is subject to the right of a creditor who
has a perfected security interest. Thus, the spouse or child takes the exempt property subject to
the perfected security interest. If they do not pay the debt when due, the property can be sold to
pay the secured creditor. (i.e., financing a car).
- Exempt property is not included in the calculation of elective, pretermitted, residuary or
intestate shares.
V. Family Allowance
- Family allowance provides cash assistance to a decedents dependents during the early stages of
probate. Fla. Stat. 732.403. Family allowance is available to the surviving spouse and lineal
heirs, both ascendants and descendants if the decedent was legally obligated to support them or
was actually supporting them.
- It is currently limited to no more than $18,000. Unless the will provides otherwise, amounts
paid as family allowance do not reduce the spouse or lineal heirs share of the remaining estate.

- A spouse can waive her right to family allowance by pre or postnuptial agreement.
Chapter 13. Elective Share
Unlike the pretermitted spouse rules, which are designed to further the decedents presumed
intent, the spousal elective share rules apply regardless of the decedents intent. The spousal
elective share rules apply even when the decedent deliberately tried to disinherit his or her
spouse. In addition, unlike the pretermitted spouse rules, which apply only if the decedent dies
testate, elective share rules discusses in this chapter apply both to testate and intestate estate.
- A spouse can take elective share in ad dition to homestead rights, exempt property and family
allowance.
- Elective share is not automatic, and you have to petition for it. Once petitioned, you can
withdraw it, but if you made the petition in bad faith, the court can assess attorneys fees.
- You can waive your right to elective share by not petitioning for it or by pre or postnuptial
agreement.
D. Current Florida Elective Share Rules
The revised rules adopt the concept of augmented estate discussed in Section C. However, there
are two significant differencesFlorida does not consider the surviving spouses property in
computing the augmented estate and does not increase the elective share percentage based on the
length of the marriage. Fla. Stat. 732.2065 makes the elective share equal to 30 percent of the
elective estate whether the marriage lasted one day or more than fifty years.
V. Computing the Elective Share
The current elective share rules require the personal representative to make six computations: (1)
which assets are included in computing the elective estate: (2) whether any exclusions apply
beyond those that apply in the first computation; (3) how to treat an asset that is potentially
governed by more that one inclusion provision; (4) which assets received by the spouse should
count against the spouses share; (5) which other beneficiaries will have their shares reduced to
fund the surviving spouses share; and (6) how to value the relevant properties.
A. Assets Included in Elective Estate
Fla. Stat. 732.2035(1)-(9) sets forth nine categories of property that are included in determining
the elective estate. Section 732.2035 applies to property that the decedent actually owned, to
property over which the decedent had certain rights or interests, and to outright transfers the
decedent made within one year of death.
B. Assets Excluded from Elective Estate
If an asset it not covered by Fla. Stat. 732.2035, it is not included in the elective estate. But
even assets covered by that section can be excluded from the elective estate computation. Fla.
Stat. 732.2045(1)(a)-(i) provides nine exclusions:
(1) The first applies to transfers that were irrevocable before the October 1, 1999,
effective date of the current elective share statute. It also applies to irrevocable
transfers made after that date but before the date the decedent married the surviving
spouse.
(2) The second exclusion applies to transfers if the decedent received adequate
consideration in money or moneys worth.

(3) The third exclusion applies to transfers to which the spouse consented in writing. To
establish that the spouse gave consent, the decedents personal representative cannot
rely solely on the fact that the spouse signed a gift tax return to treat gifts made by the
decedent as made one-half by each spouse.
(4) The fourth exclusion applies to proceeds of an insurance policy covering the
decedents life to the extent the proceeds exceed the cash surrender value.
(5) The fifth exclusion also covers life insurance, it excludes any policy on the decedents
life that is maintained pursuant to a court order.
(6) The sixth exclusion applies to the decedents half of certain property that is treated as
community property under Florida law or under the community property law of
another state.
(7) The seventh exclusion covers property held in a qualifying special needs trust at the
decedents death.
(8) The eighth exclusion covers property that is included in the decedents federal gross
estate solely because the decedent held a general power of appointment over the
property. (This exclusion does not apply if the decedent has other rights or powers
over the property that are covered by section 732.2035)
(9) The ninth exclusion covers property that is the decedents protected homestead. If the
property qualifies as protected homestead, it is excluded whether it is held by the
decedent or by a trust.
C. Overlap Rules
- In situations in which an asset could be covered by more than one category, Fla. Stat.
732.2045(2) applies. That section provides two rules for property covered by multiple inclusion
provisions.
- First, if a single property interest is included in both Category 1, because it is part of the
probate estate, and in another category, the amount included in the elective estate under
the second category is reduced by the amount included under Category 1.
- Second, if a property interest is covered by more than one category, it is deemed to be
covered by the category that results in the largest elective estate.
D. Valuation of Elective Estate
- In addition to the probate estate, the decedents elective estate may include property transferred
at an earlier date. That property may be increased (or decreased) in value from its value on the
date it was transferred.
- First, if the property is a policy insuring the decedents life, the amount that is included is the
policys net cash surrender values immediately before the decedents death. This rule applies
whether the decedent owned the policy or had transferred it but retained a right to revoke the
transfer or had certain other rights to possession of the property.
- The second rule also relates to life insurance. If the decedent transferred the life insurance
policy irrevocably within one year of death, the amount included in the elective estate is the net
cash surrender value on the date of the transfer or termination of the right.

- Third, if a successor beneficiary will receive pension or annuity rights, the value of the
survivors rights are determined based on their estate or gift tax value. This is generally the
present value of the right to receive payments. Because payments to be received in the future are
worth less today than their stated amount, the present value will be less than the sum of the
payments due in the future.
- If property other than a life insurance policy was transferred within one year of the decedents
death, the value on the date of transfer or termination of rights is included in the elective estate.
That amount is reduced by any debts encumbering the property on that date.
- Finally, the value included in the elective estate for any other property is its value on the
date of the decedents death. That value is reduced by claims paid or payable from the elective
estate. It is also reduced by debts encumbering property not covered in the preceding paragraph.
E. Property Interests Used to Satisfy the Elective Share
- Fla. Stat. 732.2075(1) governs which transfers to a surviving spouse are applied to satisfy the
spouses elective share. A testator can provide a different means for satisfying the survivors
share in the will itself or in a trust that is referred to in the will. In the absence of any provision,
the spouses share is satisfied from six categories:
- Fla. Stat. 732.2075(1)(a) covers interests that are included in the elective estate and
that pass to or for the benefit of the surviving spouse. It also includes a devise to the
spouse under the decedents will and any amounts the spouse would receive if the
decedent died intestate.
- Fla. Stat. 732.2075(1)(b) applies amounts that are included in the elective estate under
section Fla. Stat. 732.2035(7) in satisfaction of the elective share if they are paid to the
spouse or for the spouses benefit.
- Fla. Stat. 732.2075(1)(c) applies to community property interests. If the surviving
spouse receives any of the decedents share of community property described in section
732.2045(1)(f), that amount is applied toward satisfying the spouses elective share.
- If life insurance proceeds are paid to the surviving spouse, or for that spouses benefit,
Fla. Stat. 732.2075(1)(d) applies those proceeds in satisfaction of the elective share. If,
however, the surviving spouse owns the policy, the proceeds are not applied toward
satisfying the elective share.
- If property is held for the surviving spouses benefit in a qualifying special needs trust,
Fla. Stat. 732.2075(1)(e) applies that property in satisfaction of the elective share.
-Finally, Fla. Stat. 732.2075(1)(f) includes any property interest that would have been
covered by the first five categories if the surviving spouse had not disclaimed that
interest. This provision prevents the surviving spouse from walking away from
particular assets and taking others in their stead.
F. Abatement of Assets to Satisfy the Elective Share
Fla. Stat. 732.2075(6) provides abatement generally follows the order specified in Fla. Stat.
733.805.
G. Valuation of Property Used to Satisfy Elective Share
- Valuation comes into play twice in elective share computations.

(1) First, assets that comprise the elective estate must be valued for the purposes of
computing the elective estate.
(2) Second, assets treated as satisfying the spouses elective share must be valued to
ensure that the spouse receives the appropriate amount. Fla. Stat. 732.2095 refers to
valuing the property on the applicable valuation date. Depending on the circumstances,
that date might be the date of the decedents death, the date of a transfer into trust, or the
date on which the surviving spouse receives a distribution. For property distributed to the
spouse by the personal representative, the relevant date is the date of distribution.
H. Consequences of Taking Elective Share
- Any devises to the spouse are used to satisfy the spouses elective share. Fla. Stat.
732.2075(1)(a). Some spousal protections do not count against the spouses elective share rights.
A surviving spouse who takes an elective share does not give up homestead protection, exempt
property, and other allowances.
I. Miscellaneous Elective Share Issues
- Although the right of election is personal to the surviving spouse, Fla. Stat. 732.2125 allows
an election on the spouses behalf by an attorney in fact or by a guardian of the spouses
property.
- Fla. Stat. 732.2135 contains time limits for making the election and for withdrawing it. The
election must be made before the death of the surviving spouse.
Chapter 14. Miscellaneous Issues Affecting Testate and Intestate Estates
III. Simultaneous Death
- There are three potential order-of-death possibilities:
(1) the property owner dies first; in this case the beneficiary takes the property no
matter how short the survival period.
(2) the beneficiary dies first: in this case the beneficiary does not take the property. If
the decedent died intestate, the beneficiarys descendants may take his place; if the
decedent left a will, the antilapse statute might apply.
(3) the two individuals died simultaneously: in that case Fla. Stat. 732.601 provides
that the property owner is deemed to have survived the beneficiary when there is
insufficient evidence to establish that they died other than simultaneously.
A. Situations Covered
- The Florida simultaneous death statute applies to four situations:
(1) First, it applies whenever title to property, or its devolution, depends on the order
of death. Fla. Stat. 732.601(1). A testamentary devise is an example of this situation.
This provision also applies if the property owner and the person who would take the
property by intestate succession are deemed to die simultaneously.
(2) Second, it applies if one person provides that two or more beneficiaries will take
successive interests by survivorship. Fla. Stat. 732.601(2). If there is insufficient
evidence that the beneficiaries did not die simultaneously, the property is divided into
equal parts based on the number of successive beneficiaries. Each part is distributed
to the persons who would take if the particular beneficiary had been the survivor.

(3) Third, the simultaneous death rules cover survivorship tenancies: joint tenancy
with right of survivorship and tenancy by the entirety. If the deaths are treated as
simultaneous, the property is divided equally by the number of tenants. Each tenant
is treated as surviving for his or her share of the property. Each is treated as having
predeceased with respect to the remaining shares. Fla. Stat. 732.601(3). This rule
does not apply to tenancies in common because each tenants interest passes by will
or intestacy, it does not matter if tenants in common die simultaneously unless one or
both of them devise the property to each other by will.
(4) Finally, the simultaneous death rules cover life or accident insurance policies. If
the deaths are deemed to be simultaneous, the insured is treated as surviving the
beneficiary. Fla. Stat. 732.601(4).

B. Establishing Order of Death

What standard to be used in determining whether the individuals died other than simultaneously
is not indicated in the rules of Fla. Stat. 732.601. However, the UPC has a clear and
convincing evidence standard.
Rimmer v. Tesla
201 So. 2d 573 (Fla. 1st DCA 1967)
Issue(s): Whether the testimony of the doctor was sufficient to overcome the presumption of
simultaneous death in the statute? Rule: Although a statute may provide that any given state of
facts may constitute prima facie evidence of an ultimate fact in controversy, such prima facie
showing may be overcome by competent evidence to the contrary. Such fact may be established
by a preponderance of the evidence (more likely than not), and it is not necessary that the
showing be made by proof beyond a reasonable doubt. Thus, the doctors testimony made it more
likely than not that the wife died after the husband.
In re Estate of Shine
389 So. 2d 1191 (Fla. 4th DCA 1980)
Rule: Under Section 732.601(1), Florida Statues, when the devise of property depends on the
priority of death of two persons and there is insufficient evidence that the persons have died
otherwise than simultaneously, the property of each shall pass as if that person had survived.
C. Establishing Contrary Intention
The simultaneous death statute is a rule of construction. The testator, insured, or other person
whose property will be transferred can provide for a different outcome. This can be done by
indicating a contrary intent in the governing instrument.
D. Length of Survivorship

Fla. Stat. 732.601 requires only that there be evidence that the beneficiary survived. It does not
require any minimum period of survivorship. A testator who wants to avoid having property pass
through two rounds of probate in a relatively short period can include a will provision that
extends the survivorship period. (limited). Another option is to use disaster language. That
language will prevent even a devisee who dies after the testator from taking if both deaths are
attributable to a common disaster, such as an automobile accident.
IV. Killer Statute
Fla. Stat. 732.802 provides that a killer may not benefit from the person he killed. This statute
applies when the killer either unlawfully and intentionally killed or procured the murder of the
decedent. This provision applies to property passing by intestacy, property passing by will,
property held in a survivorship tenancy, and life insurance policies.
A. Establishing Individual Is a Killer
Fla. Stat. 732.802(5) provides that a final judgment of murder in any degree is conclusive that a
person is a killer. If a person has not been convicted of murder, a probate court may still
determine that the person is a killer. In that situation, a person is a killer if the greater weight of
the evidence indicates the killing was unlawful and intentional.
B. Who Takes the Property?
- When a devisee is subject to Fla. Stat. 732.802(1), the property passes as though the devisee
predeceased the testator. Unless the will indicates a contrary intent, the lapse and antilapse rules
of Fla. Stat. 732.603 and 732.604 apply. In other words, the taint that affects a killer does not
apply to the killers descendants.
- When the killer and decedent hold property in a survivorship tenancy, Fla. Stat. 732.802(2)
severs the tenancy and thus extinguishes the killers right of survivorship. The decedents
fractional share passes as though the killer predeceased the decedent. The killer is not stripped of
his or her own fractional share. In effect, the property is treated as though it were held in a
tenancy in common.
- If the killer is the beneficiary of a policy insuring the decedents life, Fla. Stat. 732.802(3)
prevents the killer from taking any policy benefits. The killer is treated as predeceasing the
decedent. If the decedent had named a contingent taker, that person will receive the proceeds. If
the decedent did not name a contingent beneficiary, the proceeds will become part of the
decedents estate.
- If the killer is the decedents surviving spouse and would be entitled to an interest in the
decedents homestead property, Fla. Stat. 732.802(4) treats the killer according to the principles
provided in the other parts of section 732.802. The decedent will be treated as having no
surviving spouse.
- If a killer sells property to a third person, who took for value, and without notice, the third
person does not lose his rights to the property. Instead, the killer becomes liable for the value of
the property.
Congleton v. Sanson
664 So. 2d 276 (Fla. 1st DCA 1995)

Facts: Husband killed wife but was not convicted of murder because he was found to be insane
when he killed his wife. Rule: Unless criminal proceedings eventuate in a murder conviction, a
judgment in the criminal case is not determinative for purposes of the slayer statute. Acquittal on
charges that must be proven beyond a reasonable doubt does not foreclose proof that meets the
lesser civil standard.A party invoking the slayer statute, also called the Murder Probate Statute,
to prevent an unconvicted killers acquisition of property has the burden of proving that the
killing was both intentional and unlawful. Accidental killings may be excusable under the slayer
statute, however, an individual exonerated from criminal liability may nevertheless be found to
have intended to cause a death. In the law, there are many situations in which a person may
intentionally injure or kill another and not be subject to criminal punishment. i.e. self defense.
Thus, acquittal by reason of insanity did not require a particular result on the question of intent in
parallel civil proceedings.
Kendall v. Starnes (In re Estate of Benson)
548 So. 2d 775 (Fla. 2d DCA 1989)
Rule: The taint that affects a killer does not apply to the killers descendants.
LoCasio v. Sharpe, Fla 3d DCA 2009
Rule: the slayer statute is not a forfeiture statute awarding all of a killers property to the estate
of the victim. Subsections (1) and (2) of the slayer statute do not call for the complete
termination of the killers interest in the property but merely the termination of the right of
survivorship. Subsection (2) states that the killing effects a severance of the interest of the
decedent, codifying a prior equitable doctrine that the property in such a case is treated as if it
had been formerly held as a TIC.
Note: A killers right to inherit or take under a will ends if a final judgment of murder is entered
at the trial. The estate is not held open while the defendant-beneficiary appeals the conviction.
Even if the appeal is successful, the probate court might hold that the greater weight of the
evidence establishes that the beneficiary is the killer. There could be a remedy in constructive
trust or something though.
V. Disclaimers
Disclaimers may be used to alter a testamentary scheme after a property owners death. These
involve a beneficiary receiving less property than he is entitled to receive.
- See 739.101-104
A. Tax Reasons for Disclaiming
Federal transfer tax considerations are an important reason for using disclaimers. A devisee who
is already wealthy might disclaim property to keep it out of his or her taxable estate or to avoid
gift tax on inter vivos transfers. Also a greater amount might pass to a disclaimants children if
the property passes to them directly from the original testator.
B. Who takes the Disclaimed Property
- See 739.201(2)-(3)
- Lapse and antilapse rules apply to disclaimers
C. Disclaimants in Financial Difficulty
A beneficiary who is in financial difficulty may want to disclaim property to keep creditors from
taking it. Because the property passes as though the disclaimant predeceased the testator, it may

go directly to the disclaimants descendants and be available for their benefit. See 739.402(2)(c)(d) though which limits the power to disclaim in certain situations involving financial distress.
- Basically if you are in bankruptcy, you cant disclaim.
VI. Waivers and Succession Agreements
A. Waivers
- A spouse can make an advance waiver of her right to elective share, intestate share,
pretermitted share, homestead, exempt property, and family allowance. The right to be given
preference for selection as the decedents personal rep can also be waived by the spouse.
- Language matters: 732.702(1) states that all rights indicates the waiver of each right listed
unless the waiver itself provides otherwise. Thus, the waiver of all rights waives the right to
elective share, intestate share, pretermitted share, homestead, exempt property, family allowance
and preference in appointment as personal rep.
- A waiver requires a written instrument. The person waiving rights must sign in the presence of
two witnesses, who must also sign the document. The spouse making the waiver need not receive
any monetary or other consideration from the other spouse.
- If the waiver occurs before marriage, the waiving spouse is not even entitled to receive a fair
disclosure of the other spouses estate. If it is a post nuptial agreement, then the spouse is
required to give a full disclosure of the estate.
Taylor v. Taylor, Fla 1st DCA 2009
Rule: 732.702(1) provides: the right of election of a surviving spouse, the rights of the surviving
spouse as intestate successor or as a pretermitted spouse, and the rights of the surviving spouse to
homestead, exempt property, and family allowance may be waived, wholly or partly, before or
after marriage, by a written contractThis section does not require that the parties specify an
intent to relinquish rights given to surviving spouses in order to effectively relinquish those
rights. Instead, a general relinquishment of all rights or equivalent language is sufficient to
accomplish this purpose.
Foster v. Estate of Gomes, Fla 5th DCA 2010
Rule: Florida does not require prior disclosure of assets for an antenuptial agreement (they do for
postnuptial agreements). Thus, a partial disclosure of assets before the execution of a antenuptial
agreement will not invalidate the it.
Note: Nondisclosure in any form (including fraudulent disclosure) cannot invalidate an
antenuptial agreement in probate proceedings of a deceased spouse.
B. Succession Agreements
- See 732.701(1)
VII. Post-Death Private Agreements
733.815 lets beneficiaries make private contracts regarding their share of the decedents estate
that could alter a decedents distribution scheme. Such agreements are subject to the rights of
creditors, tax authorities, and beneficiaries who are not party to the agreement.

VIII. Effect of Inter Vivos Transfers on Recipients Share of Estate

When the decedent gives things to a devisee, these may be charged against future inheritances
A. Loans to Beneficiary
- If an intestate decedent was owed money by an heir, any unpaid balance may not be charged
against the intestate share of any person except that heir.
- If the debtor predeceases the decedent, the debt will not be charged against the intestate share
of the debtors heirs.
- 733.809 provides for offsetting any noncontingent debt against the debtors interest in the
estate. If the debt is due in the future, the amount that is deducted is its present value
- 732.109 applies only to intestate estates while 733.809 applies to both testate and intestate
estates.
- A testate creditor can cancel the debt in his will (i.e. say that anyone who owed me money no
longer does after my death) but an intestate creditor does not have that option.
B. Advancements
- Some transfers of property before a decedent dies can qualify as advancements and will be
charged against the recipients share of the intestate estate because it will be treated as an early
inheritance.
-There are two methods for establishing the transfer is an advancement.
(1) At the time the intestate delivers the property to the prospective heir, the intestate
can also deliver a writing stating that the transfer is to be charged against the heirs
inheritance.
(2) The heir may acknowledge in writing that he is receiving this early inheritance,
the amount of which will be taken into account at the decedents death.
- If the advancement was in cash, the share of the recipients intestate share will be reduced by
that amount but if the cash advancement is in excess of the share, the recipient is not required to
give back the excess.
- If the advancement was an item like a condominium that increased in value by the time of the
decedents death, 733.806 values the advancement at the either the time the recipient came into
possession of the property or the date of the decedents death, whichever was earlier.
- An advancement does not affect the amount an heirs descendants will be entitled to receive,
unless the writing provides otherwise.
- When the advancer dies intestate, the advanced property is treated as if it were still in the
advancers probate estate when computing the size of the intestate shares. Then when you
divide the shares among the takers you will subtract the advancement from the individual
who received it.
C. Ademption by Satisfaction
- Ademption by satisfaction, 732.609, is analogous to the intestate concept of advancement.
This is a rule of construction used in determining whether pre-death gifts satisfy a testamentary
devise.
-This provision treats pre-death gifts as satisfying a devise only if one of 3 requirements
are met
(1) The testators will can provide that the lifetime gift reduces the devise
(2) The testator can use a different document to provide that the gift reduces or
satisfies the devise; this document must be contemporaneous with the gift.

(3) The devisee can acknowledge in writing that the gift is in satisfaction of the
devise.
- Any of these methods can be used to establish full or partial ademption by satisfaction
Chapter 16. Nonresidents and Ancillary Administration
II. Introduction
- The disposition of the decedents Florida probate assets is affected by various aspects of
residency and citizenship. These Include:
(1) the intestate decedents domicile
(2) the testators domicile when executing a will and at death
(3) the place where the will was executed
(4) the place where the property is located
(5) the beneficiarys domicile at the time of distribution of the decedents estate
assets.
- Domicile is a question of intent. Indications of such intent are often based on such factors as:
where a person lives, works, registers to vote, or banks; the address used on tax returns; and the
finding of a declaration of domicile document.
III. Nonresident Decedents
A. Ancillary Administration
- Ancillary administration is the administration of a decedents estate in a state or country other
than where the decedent was domiciled. Governed by Fla. Stat. 734.102
- Florida real property owned by a nonresident decedent is subject to ancillary administration in
Florida.
- Ancillary administration also may be commenced, but is not required, to administer personal
property owned in Florida, including debts owed by Florida residents to nonresident decedents
and liens held by nonresidents on Florida real estate.
- Debts owed to a nonresident decedent, which are evidenced by investment or commercial paper
or other instrument, are deemed located where the instrument is located; all other debts are
located in the county where the debtor resides.
-The venue for ancillary administration is in any county where the decedents real or personal
property is located.
B. Determining Domicile
- The determination of domicile affects the validity of any will executed by the decedent, which
states laws apply, who is entitled to serve as personal representative, what is the proper
distribution of the estate, and a multitude of other matters pertaining to estate administration.
- A person has only one domicile no matter how many residences he owns
- Not all probate court decisions are accorded full faith and credit.
Pastor v. Pastor
929 So. 2d 576 (Fla. 4th DCA 2006)
Rule: Domicile is not a component of subject matter jurisdiction in probate court. A probate
court has jurisdiction over any property located within the state.

Cuevas v. Kelly
873 So. 2d 367 (Fla. 2d DCA 2004)
Rule: A Florida court may have jurisdiction over the distribution of a decedents estate if Florida
was the decedents domicile at the time of his death or if the decedent owned property in Florida
a the time of his death. However, such jurisdiction is not necessarily exclusive. If the decedent
died a domiciliary of another state but owned personal property in Florida, both states may have
jurisdiction over the distribution proceedings.
-Whether two states may exercise simultaneous jurisdiction or one state must defer to the
finding of a sister state depends on the facts of the particular case.
- The decision of the court of one state to the effect that the testator is domiciled there is
not binding, in the courts of other states, upon persons who are not parties to the
proceedings in the first stateeven under the full faith and credit clause of the Federal
Constitution On the other hand, one who was a party to the proceedings in the first
state is bound by the judgment of such court even upon the question of the testators
domicile.
-Where a party had has notice and opportunity to be heard and the foreign court has satisfied
Floridas jurisdictional and due process requirements their orders will be entitled to comity.
C. Governing Law for Testate and Intestate Nonresidents
- Ancillary administration relates to the probate process, not to the rules of inheritance.
Notwithstanding ancillary administration, the nonresident decedents real and personal property
is generally distributed pursuant to the law of the decedents domicile.
- The non-resident testator may, however, provide in his will for the disposition of his Florida
real and personal property pursuant to Florida law rather than the law of his domicile.
Saunders v. Saunders
796 So. 2d 1253 (Fla. 1st DCA 2001)
Rule: Fla. Stat. 732.106(2) Florida law will only apply to distribute a nondomiciliary testators
property situated in Florida when such testators last will and testament provides that Florida law
shall apply to his or her Florida property.

Fajardo v. Domingo (In re Estate of Fajardo)

597 So. 2d 362 (Fla. 3d DCA 1992)
Facts: Philippine guy died and his mother wanted half of the estate. Rule: Fla. Stat. 731.106(2)
The court may, and in the case of a decedent who was at the time of death a resident of a foreign
country the court shall, direct the personal representative appointed in this state to make
distribution directly to those designated by the decedents will as beneficiaries of the tangible or
intangible property, or to the persons entitled to receive the decedents personal estate under the
laws of the decedents domicile, as the case may be.
D. Validity of Wills of Nonresidents
- A will executed by a nonresident of Florida is generally valid in Florida if it is valid in the
jurisdiction where it was executed. Fla. Stat. 732.502
- However, some types of wills are not valid in Florida even if they are valid in the other
jurisdiction. These are holographic and nuncupative wills. Florida does not recognize oral wills
at all.
- Florida recognizes wills written in a foreign language. To be admitted to probate in Florida,
however, they must be accompanied by and English translation. Fla. Stat. 733.204
E. Community Property Owned by Florida Residents
- Community property does not involve a survivorship feature. When one spouse dies, the
community property interest is severed. The decedents one-half interest passes according to the
terms of his or her will or by intestacy.
- Although not a community property state, Florida presumes that property purchased during
marriage while a spouse was domiciled in a community property state remains community
property. This presumption is rebuttable.
- Fla. Stat. 732.217 The Uniform Act applies to any (1) personal property that was community
property in another jurisdiction, was purchased with income or proceeds from or in exchange for
community property, or is traceable to the community property; and (2) Florida real property,
except property held as tenants by the entirety, that was purchased with income or proceeds from
or in exchange for community property, or is traceable to the community property.
- If a Florida domiciliary owned community property at death, one-half of such property is
deemed to be part of the decedents probate estate. That one-half will be distributed pursuant to
the decedents will or the laws of intestacy. The other one-half of the community property is
deemed to be the property of the surviving spouse. Although it is probate property, the
decedents one-half is not included in the calculation of the elective estate.
- Fla. Stat. 732.225 Community property status is lost for funds that are invested in Florida
homestead. It is also lost if the spouses sever or alter their interests in the property. As is true for
non-community property, a surviving spouse may also waive his rights to the decedents share of
community property.
IV. Nonresident Beneficiaries
- The Florida Probate Code does not prevent inheritance by individuals who reside in other states
or countries. It does not matter whether these beneficiaries are United States citizens. Fla. Stat.
732.1101 specifically permits inheritance of intestate estates by aliens.
- Despite the general rules, legislative or administrative exceptions may prevent distributions to
certain beneficiaries.

Chapter 17. Introduction to Trusts

III. Terminology
A. Parties in Private Express Trust
- The parties to a typical private express trust are:
(1) the settlor (grantor, creator, trustor, transferor), who transfers assets to or
otherwise funds the trust.
(2) the trustee, who is charged with managing the trust assets for the benefit of the
beneficiaries, and
(3) the beneficiaries, who have the equitable interests and for whom the trust is
administered. (you can have a present or future interest; vested or contingent)
- A person can serve more than one role. In addition, there can be more than one person in any
particular role.
- Fla. Stat. 736.0402(1)(e) provides that a sole trustee cannot be the sole beneficiary.
- There must be a separate person having equitable title and one who has legal title.
B. Methods for Creating Express Trusts
- An express trust can be created in three ways:
(1) First, a trust can be created when the settlor transfers funds to a third party who
serves as the trustee.
When the settlor uses a third party as the trustee, the trust is deemed created by
transfer. In the case of a testamentary trust, the settlor is the testator and the
transfer to the trustee is made by a devise.
(2) Second, a trust can be created when a settlor declares herself or himself trustee of
the trust assets for the benefit of the beneficiaries.
Such a trust is said to be self-declared or created by declaration.
(3) Finally, a holder of a power appointment can create a trust by exercising the
power.
C. Inter Vivos or Testamentary Trusts
- A trust can take effect during a settlors lifetime or can take effect when the settlor dies.
- Inter vivos trust- trusts that are effective during the settlors lifetime
- Testamentary trust- trust that takes effect only upon the settlors deatha trust created as part
of a will.
D. Revocable or Irrevocable Trusts
- An inter vivos trust can be revocable or irrevocable. Fla. Stat. 736.0505
- Creditors of a settlor of an irrevocable trust can reach only the beneficial interests in the trust, if
any, retained by the settlor.
- Creditors of the settlor of a revocable trust can reach the entire trust interest even if the interest
are designated for other beneficiaries.
- Revocable trusts are essentially ignored for federal income, estate, and gift tax purposes.
- Generally, for federal tax purposes, a settlor who has the right to revoke or amend the trust is
viewed as the true owner of the trust assets. Accordingly, for income tax purposes, the settlor of
a revocable trust would continue to be responsible for federal income taxes on the trusts income.
Similarly, the assets held in a revocable trust are included in the settlors gross estate for federal
estate tax purposes.

- In almost all cases, the trust clearly provides whether it is revocable or irrevocable. If, however,
the trust instrument is silent on whether the settlor retained the right to revoke, Fla. Stat.
736.0602 provides that unless the terms of a trust expressly provide that the trust is irrevocable,
the settlor may revoke or amend the trust. This does not apply to trusts created before July 1st
2007.
- A testamentary trust is always irrevocable, however, you can revoke the will in which it was
created.
Chapter 18. Substantive Trust Elements
II. Trust Elements for Private Express Trusts
- There are five elements required for the valid creation of a private express trust:
(1) the trust must have a res
(2) the settlor must indicate the intent to create a trust (capacity)
(3) the trust must have a trustee with fiduciary duties
(4) the trust must have definite beneficiaries, and
(5) the trust must have a lawful purpose
* These are all mandatory provisions that can not be altered by the settlor or by agreement.
A. Res
- A valid trust must have a res. (also referred to as principal or corpus)
- The res requirement can be satisfied by any type of recognized property interest. This includes
a contingent interest, and executory interest, and even an equitable interest.
- A trust that does not contain a recognized property interest, or a res that is specifically
sanctioned by a statute, does not meet the res requirement.
Brainard v. Commissioner
91 F.2d 880 (7th Cir. 1937)
Rule: If a person gratuitously declares himself trustee of such shares as he may thereafter acquire
in a corporation not yet organized, no trust is created. The result is the same where instead of
declaring himself trustee, he purports to transfer to another as trustee such shares as he may
thereafter acquire in a corporation not yet organized. In such a case there is at most a gratuitous
undertaking to create a trust in the future, and such an undertaking is not binding as a contract for
lack of consideration.
- If a person purports to declare himself trustee of an interest not in existence, or if he purports to
transfer such an interest to another in trust, he is liable as upon a contract to create a trust if, but
only if, the requirements of the law of Contracts are complied with. i.e. consideration, offer and
acceptance.
- If a person manifests an intention to become trustee at a subsequent time, his conduct at that
subsequent time considered in connection with his original manifestation may be a sufficient
manifestation of intention at that subsequent time to create a trust. The act of acquiring the
property coupled with the earlier declaration of trust may be a sufficient manifestation of an
intention to create a trust at the time of the acquisition of the property.
Herskowitz v. Smith (In re Estate of Herskowitz)
338 So. 2d 210 (Fla. 3d DCA 1976)

Facts: Settlor died and left trust for his sons and brother as trustee. Brother/trustee did not want
to pay support for the boys because mother was a trick ass hoe. Rule: It is well established that to
constitute a valid trust there must be indication of an intention to create a trust, property to which
the trust may and does pertain and a certain and ascertained object. Just because the probate
court hadnt gotten to the point of final distribution doesnt mean that the trust isnt created yet.
The court found that the trust was created at the time of the decedents death and because there
was sufficient estate to pay off administration, debt, and creditors that there would eventually be
money in the trust and that it was valid.
B. Settlor Intent and Capacity
- An express trust requires the manifestation of trust intent.
- The intent element has three facets:
(1) First, the transferor must have intended a trust.
(2) Second, the settlor must have the capacity to formulate the requisite trust intent
(3) Third, the intent to create a trust must be a present intentnot an intent to create a
trust sometime in the future.
1. Express Intent to Create Trust
- A trust is a fiduciary relationship with respect to property, arising from a manifestation of
intention to create that relationship and subjecting the person who holds title to the property to
duties to deal with it for the benefit of charity or for one or more persons, at least one of whom is
not the sole trustee.
Rosen v. Rosen
167 So. 2d 70 (Fla. 3d DCA 1964)
Rule: The Court established the intent of the decedent to create a trust for his children through
sufficient evidentiary support and parole evidence. Dont have to use any particular words to
create a trust you just have to manifest enough intent to show that you intend to create a trust.
2. Precatory Language
- Terms such as I wish, I strongly desire, I fervently hope, and I request.
- Use of this language can be construed as either (1) manifesting an intent to create a trust with
its attendant enforceable legal obligations on the trustee or (2) merely indicating a desire on the
part of the transferor to impose a moral obligation, which is legally unenforceable.
- R. 3d of Trusts 13 provides unless a testator or other transferor manifests an intention to
impose enforceable duties on the transferee, the intention to create a trust is lacking and no trust
is created.
Magnant v. Peacock
25 So. 2d 566 (Fla. 1946)
Facts: Decedent died and left a will which contained some precatory language discussing a trust
to be created for his granddaughter. Issue(s): Whether the words used by the testator were meant
by him to establish a trust for the benefit of appellant, his granddaughter? Rule: There are three
prerequisites to the establishment of a valid precatory trust: (1) Sufficient words to raise it,
(2) A definite subject, and (3) a certain and ascertained object.
DeRoche v. Mitchell (In re Estate of DeRoche)

330 So. 2d 860 (Fla. 2d DCA 1976)

Rule: While a testators use of precatory language may establish a trust, the language and
surrounding circumstances must demonstrate an intention to impose a legal duty upon a legatee
to carry out the desired purpose and not leave the legatee free to carry it out or not as he should
choose even though clearly the testator had hoped that he would carry it out. If the precatory
words refer in whole or in part to property other than that bequeathed or devised by the testator,
the words do not create a trust.
3. Capacity of Settlor
- The type of capacity required of a settlor is the same as that required for a will.
- Restatement (Third) of Trusts 11. Capacity of a Settlor to Create a Trust.
C. Trustee with Duties
There are two parts to the trustee element:
(1) First, the trust must have a trustee
(2) Second, in order to meet the trustee requirement, the trustee must have trust duties
to perform.
- The failure to have a trustee at any particular point in time generally will not invalidate the
trust. The common law on trust has long recognized that a trust will not fail for lack of a trustee,
because the court could appoint one. Fla. Stat. 737.201(1)(a).
Adams v. Adams
88 U.S. 185 (1874)
Issue(s): Whether a trust will fail for lack of a trustee? Rule: The court found that the husband
had taken all the necessary measures to create a trust and the fact that the trustee did not accept
the trust did not destroy the trust because the court could simply apply a new trustee. Selecting a
trustee and successor, or a method for filling vacancies, is an important aspect in designing a
trust for a settlor. The selection process includes determining who can serve and who should
serve as trustee of a specific trust, based on the administrative and distributive duties and powers
the trustee will have, the purpose and duration of the trust, and the nature of the trust assets. The
trustee may be an individual or a corporate fiduciary with trust powers. A settlor may choose to
serve as the sole trustee, so long as he is not the sole trustee and the sole beneficiary. In some
cases, a settlor may appoint two or more trustees. When all of the co-trustees do not agree,
decisions will be made by a majority of the trustees unless the trust agreement provides
otherwise.
D. Beneficiary
- A private express trust must generally have at least one definite beneficiary presently
ascertainable or ascertainable within the applicable Rule Against Perpetuities. Fla. Stat.
736.0402 (1)(c), (2). A valid trust exists only if there is a separation of legal and equitable
interests. Fla. Stat. 736.0402(1)(e). The trustee has the legal interest and the beneficiaries have
the equitable interests.
- The ascertainable beneficiaries in a private trust may be present or future beneficiaries with
vested or contingent interests. Usually, a beneficiarys interest is defined with respect to income
or principal, or both, and the trustees duties and powers to make distributions also relate to
income or principal, or both.

- The settlor has a significant amount of flexibility when designing a trust with respect to when
income or principal can or must be distributed to the beneficiaries. The trustees may be
obligated to make distributions of income or principal, or they may be given the discretion to
make such distributions, to some or all beneficiaries. Discretionary powers may be limited by a
standard, such as for health or education, or be within the sole discretion of the trustee.
Alternatively, a trustee may be required to accumulate income and thus may not have the power
to make current distributions of income or may not be authorized to distribute principal for a
period of time.
- The trust could contain a mandatory income distribution provision
- The trust could contain mandatory principal distribution requirements prior to the trusts
termination date.
- As an alternative to mandatory distribution requirements of either income or principal, the trust
could give the trustee discretion with regard to distributions. This discretion may be limited by a
standard, such as a support standard. (i.e. health or education). By contrast, the settlor may want
to give the trustee unlimited discretion, not tied to any standard, so that the trustee would have
the sole discretion to determine how much or how little to distribute to a beneficiary for a year or
to not make any distribution for the year. In exercising the discretion, the trustee must act in
good faith.
- Because a trustee is in charge of distributions and because a trust places legal title to the trust
property in the hands of the trustee, it leaves the beneficiaries at risk that the trustee could
misappropriate the funds. The trustees duties are owed to the trust beneficiaries. Thus, it is
critical to ensure that there is at least one beneficiary to whom the duties would be owed and who
could enforce the trust.
1. Ascertainable Beneficiary
FTC 736.0402(1) requires that a trust have a definite beneficiary, which is defined in
subsection (2) as a beneficiary that can be ascertained now or in the future, subject to any
applicable rule against perpetuities.
- Section 736.0402(3) provides, however, that a power of a trustee to select a beneficiary from
an indefinite class is valid.
Kunce v. Robinson
469 So. 2d 874 (Fla. 3d DCA 1985)
Issue(s): Whether an invalid portion of a trust will invalidate the trust as a whole? Rule: When a
portion of the trust is found to be indefinite but the settlors general intent can still be achieved,
the uncertain provision should be severed from an accompanying enforceable one so that the
remaining provision, and the trust as a whole, may be preserved. The grantors intent at the time
of the execution of the trust instrument is controlling on the question of whether one grant is
severable from another. Where a trust is for several purposes, some valid and some invalid, it
will be supported so far as it is good, provided such part is separable from the rest, and no
violence will thereby be done to the testators general intent.
* Fla. Stat. 736.0706(1) provides that a settlor has the right to seek court removal of a trustee.
Fla. Stat. 736.0495(3) provides more broadly that the settlor of a charitable trust, among others,
has standing to enforce the trust.

2. Merger Doctrine
When there is no separation of the legal and equitable interests in the property the doctrine of
merger will apply. And when they merge into one there is no longer any trust because there no
longer remains the division of equitable and legal title. Merger doctrine cannot be bypasses by
agreement, all trust must abide by the merger doctrine.
E. Valid Trust Purpose
Fla. Stat. 736.0404 provides that a trust may be created only to the extent the purposes of the
trust are lawful, not contrary to public policy, and possible to achieve. The simplest examples of
trusts or provisions that offend public policy are those that tend to encourage criminal or tortious
conduct on the part of the beneficiaries. A person may not create a trust in any matter that they
wish, they must take into account societies interest.
Chapter 19. Trust Formalities and Funding Trusts
II. Trust Formalities
In order for a trust to survive a challenge to its validity, it must have (1) met the substantive
elements for an express trust and (2) been executed with the requisite trust formalities.
- Two factors determine the formalities required: (1) whether the trust is testamentary or inter
vivos; and (2) whether the trusts res is real property or personal property. In Florida, there is a
third factor: whether the trust is revocable and, if so, whether it contains any testamentary
aspects.
- Even if a trust has all the substantive elements it will fail if the formalities have not been
followed.
A. Testamentary Trust Formalities
- A trust created as part of a will must comply with the states requirements for proper execution
of a will.
- Fla. Stat. 732.502 imposes four requirements for a validly executed will: (1) the settlor/testator
must sign the will at then end; (2) the settlor/testator must sign in the presence of at least two
attesting witnesses: (3) at least two witnesses must attest to the settlor/testators signature or the
settlor/testators acknowledgment of his signature; and (4) the attesting witnesses must sign in
the presence of the settlor/testator and each other.
B. Inter Vivos Trust Formalities
- In most states, the formalities required for an inter vivos trust depend on whether the trusts res
is personal property or real property. Most states require inter vivos trusts of real property to
comply with their statute of frauds for trusts; thus, such trusts must be in writing.
- By contrast, in most states an inter vivos trust consisting of personal property need not comply
with any formalities.
- Fla. Stat. 689.05 inter vivos trust of real property in Florida must be in writing and otherwise
comply with that statute.
1. Statute of Frauds for Trusts of Land
- Fla. Stat. 689.05 (look on page 406)
prevents enforcement of an oral trust of land as an express trust. However, either a constructive
or a resulting trust could be imposed in cases where the elements for either are met.

- The statute requires a trust of land to be manifested and proved by a writing, signed by the
party authorized by law to declare or create such a trust. Without the writing the trust is utterly
void.
- Restatement (Third) of Trusts 22. Writing required by Statute of Frauds.
In order to create an enforceable express inter vivos trust of property for which a statute of frauds
requires a writing must be signed as provided in 23 and must (a) manifest the trust intention,
and (b) reasonably identify the trust property, the beneficiaries, and the purposes of the trust. The
writing need not be intended as the expression of a trust in order to satisfy the requirements of
the statute of frauds. However, it must have been a writing, that was properly signed, and that
contained the essential substantive elements of the trust.
2. Formalities for Testamentary Aspects of Revocable Trusts
- Florida adds additional formalities requirements for revocable inter vivos trusts.
- Fla. Stat. 736.0403(1) provides as a general rule that an inter vivos trusts is validly created if
the creation of the trust complies with either the law of the jurisdiction in which the trust
instrument was executed or the law of the jurisdiction in which, at the time of creation, the settlor
was domiciled.
- Fla. Stat. 736.0403(2)(b) provides that the testamentary aspects of a revocable trust, executed
by a settlor who is a domiciliary of this state at the time of execution, are invalid unless the trust
instrument is executed by the settlor with the formalities required for the execution of a will in
this state.
- In addition, the testamentary aspects of a revocable trust of personal property must also follow
these formalities.
* Look at chart on pg 409.
- The term testamentary aspects mean those provisions of the trust instrument that dispose of the
trust property on or after the death of the settlor other than to the settlors estate.
Zuckerman v. Alter
615 So. 2d 661 (Fla. 1993)
Issue(s): Whether paragraph 689.075(1)(g), Florida Statutes, creates a single test, or two
alternative tests, for the validity of an inter vivos trust executed on or after July, 1, 1969, where
the settlor is the sole trustee? Rule: Paragraph 689.075(1)(g) creates a two part test for
determining the validity of an inter vivos trust. The plain language of subsection 689.075(1)(g),
especially the disjunctive effect of the words either and or, unequivocally establishes two
alternative tests, not a single test, to determine the validity of an inter vivos trust of which the
settlor is the sole trustee. Under the first test, such a trust instrument need only be executed in
accordance with the required formalities for an inter vivos trust; the alternative test requires that
such a trust instrument be executed in accordance with the formalities required for the execution
of wills. In Florida, formalities for the conveyance of real property are similar to will execution
formalities. Florida inter vivos trusts of personal property may be created by deed, may rest
entirely on parol, or may be partially in writing and partially in parol, provided the words are
sufficient to create a trust. If by the terms of the trust an interest passes to the beneficiary during
the life of the settlor, although that interest does not take effect in enjoyment or possession before
the death of the settlor, the trust is not testamentary.
III. Funding Trusts

In addition to complying with the requisite formalities for creating a trust, a settlor must follow
the proper procedures for funding it.
A. Funding a Revocable Trust
- Probate is avoided only for the assets that were actually transferred to the trustee of the trust
prior to death. If the settlor wants to obtain the benefits of avoiding probate and of continuity of
asset management, funding the trust before death is critical.
- A valid inter vivos trust can exist in Florida even if its res consists solely of the right to receive
death benefits. These death benefits meet the res requirements, because the Florida legislature
has sanctioned them.
- Transferring assets into trust requires (1) assessing the nature of the assets and (2)
complying with the requisite formalities for transferring the assets to the trustee.
- A Florida domiciliary can avoid ancillary probate proceedings by transferring real property
located outside Florida to an inter vivos trust.
- When transferring intangible property, i.e. stocks, usually the applicable entity must be
contacted in order to re-register the securities in the trustees name.
- Bank accounts can typically be transferred by retitling the account pursuant to the banks
procedures.
- Cash can be transferred by writing a check payable to the trustee.
- Tangible property that is publicly titled would have to be properly retitled.
- Tangible property that is not publicly titled is often not transferred into trusts. However, if the
items are particularly valuable or the settlor for some other reason prefers to transfer them,
generally such items are transferred by a properly drafted assignment document signed by the
settlor and accepted by the trustee.
- For gifts in trusts, the standard property law requirements for ensuring a valid gift of the
tangible personal property should be met.
In re Alexander
346 B.R. 546 (Bankr. M.D. Fla. 2006)
Issue(s): Whether the Florida Homestead exemption is void when title to the property is in a
revocable trust and the Debtors interest in the property is as trustee and primary beneficiary?
Rule: Floridas homestead exemption does not designate how title to the property is to be held
and it does not limit the estate that must be owned, i.e. fee simple, life estate, or some lesser
interest..The Florida courts have consistently held that the exemption should be liberally
construed in favor of protecting the family home and those whom it was designed to protect. An
individual must have an ownership interest in a residence that gives him or her the right to use
and occupy it as his or her place of abode in order to qualify for Floridas homestead exemption.
The individual claiming the exemption need not hold fee simple title to the property. Instead, it is
sufficient if the individuals legal or equitable interests give the individual the legal right to use
and possess the property as a residence.
- Florida courts have upheld a claim of homestead exemption in cases in which the debtor
merely leased the underlying real property. In re McAtee
- Florida courts have held that legal title does not need to be in an individuals name in
order to qualify for Floridas homestead exemption. Callava v. Feinberg.
-Fourth DCA held that a residence held in a revocable trust was owned by a natural
person for purposes of Floridas homestead exemption. Engelke v. Estate of Engelke.

* An owner can lose their homesteaded protection against creditors if their Florida Homestead is
held in an irrevocable trust because a irrevocable trust is not considered a natural person.
Raborn v. Menotte
974 So. 2d 328 (Fla. 2008)
Issue(s): Whether when transferring real property to a trust, simply conveying the property to the
trustee will result in the trustee obtaining the property in fee simple absolute? Rule: When
conveying real property to the trust, a settlor should not use the language Settlor conveys to
Trustee because that language would give the trustee the property in fee simple absolute. The
settlor should say Settlor conveys to Trustee for the purpose of blank trust.
However there are 3 exceptions that allow you to avoid this outcome, the Deed can:
(1) Name beneficiaries, (2) express a contrary intent, (3) state the nature of the purported trust,
(4) You can identify the trust by name or date, (5) Record a declaration of trust.
Flinn v. Van Devere
502 So. 2d 454 (Fla. 3d DCA 1986)
Rule: The trust instrument can double as a deed to fund the trust, however, the trust instrument
must comply with the necessary formalities and must have words of conveyance. i.e., I convey,
grant or transfer this real estate.
B. Funding an Irrevocable Inter Vivos Trust
- Generally, any assets that can go into a revocable trust can also be placed in an irrevocable
trust, by transfer to the trustee in the same manner.
- Care should be taken in funding an irrevocable trust because it is irrevocable and to ensure it
accomplishes the purposes for which it is designed.
C. Funding a Testamentary Trust.
The transfer of the trust res from the settlor to the trustee of a testamentary trust is created by
means of a devise. The devise may be specific, demonstrative, general, or residuary. The
testamentary trust will come into existence when the testator dies; however, it will be funded
when the personal representative distributes assets to the trustee. Because the trust is funded
through a devise, the devise may abate or may be subject to ademption.
Chapter 20. Revocable Trusts
II. Revocable Trusts
- Fla. Stat. 736.0103 defines a revocable trust as one that may be revoked by the settlor without
the consent of either a trustee or a person with an adverse interest. The settlor can choose to be a
trustee or a beneficiary of his revocable trust.
- Fla. Stat. 736.0602(1) if a trust is silent, then it is deemed to be revocable.
A. Nontestamentary Character of Revocable Trusts

- Fla. Stat. 736.0403 If by the terms of the trust an interest passes to the beneficiary during the
life of the settlor, although that interest does not take effect in enjoyment of possession before the
death of the settlor, the trust is not testamentary. The beneficiarys interest comes into existence
the instant the trust is created, even if that beneficiarys possessory right is postponed to some
distant future date and even if the beneficiarys enjoyment depends on the settlors not changing
her mind and revoking the trust.
B. Revocable Trusts and Probate
- Even though Fla. Stat. 736.0403 requires the testamentary aspects of a trust to be executed
using will formalities, the revocable trust is not treated as a testamentary trust. As a result, the
trust res is not part of the settlors probate estate.
Parker v. Shullman
983 So. 2d 643 (Fla. 4th DCA 2008)
Rule: Fla. Stat. 737.3054 provides that the interests of all beneficiaries of a revocable trust are
subject to the trustees duty to pay the expenses of the administration and obligations of the
grantors estate.
Note: Fla. Stat. 736.05053 provides the abatement rules for a trust, these may need to be
coordinated with the abatement rules for a will under Fla. Stat. 733.805.
C. Designing a Revocable Trust
- A revocable trust usually is designed with distribution provisions that apply during two
different time periods: (1) during the settlors lifetime, and (2) after the settlors death.
- During the settlors lifetime, the settlor may choose to be the trustee or a co-trustee and may
retain the right to direct the distribution and administration of the trust assets.
- The trust could contain provisions that supplement the trustees obligation to contribute trust
assets to be used by the personal representative to pay claims, administration expenses, and
taxes.
- The trust could also provide for the abatement of trust distributions to pay for such items and
the apportionment of the estate tax.
- In addition, the trust may provide for outright distributions when the settlor dies or,
alternatively, it may provide for the assets to continue to be held in trust for beneficiaries
designated by the settlor. These outright distributions or continuing trust provisions would be
deemed to be testamentary aspects of the trust.
D. Rules Governing Revocable Trusts
- Fla. Stat. 736.0601- 736.0604.
- 736.0603 provides that while a trust is revocable, the trustees duties are owed only to
the settlor.
- 736.0604 provides that the statute of limitations for contesting trusts that were revocable
immediately prior to the settlors death.
- 736.0505(1) provides that, during the settlors lifetime, creditors of a settlor of a
revocable trust can reach the assets held in a revocable trust regardless of the named
beneficiaries of the trust.

- 736.1105 provides that a provision in a revocable trust in favor of a former spouse is

generally void.
- In general, an action to contest the validity of the trust (including whether the settlor had
capacity to create it) cannot be sought until the trust becomes irrevocable by its terms or
by the settlors death.

E.Amendment,Revocation,orTerminationofRevocableTrusts
Asettlormusthavethecapacityrequiredtomakeawillinordertorevokeoramendhis
revocabletrust.
Fla.Stat.736.0602governstheamendmentorrevocationofarevocabletrust.
736.0602(3)providesthatasettlorofarevocabletrustmayrevokeoramendsucha
trustbysubstantialcompliancewithamethodprovidedinthetermsofthetrust;If
thetrustinstrumentdoesnotincludeamethod,thestatuteprovidesthatamendmentor
revocationofsuchatrustcanbeaccomplishedby:1.Alaterwillorcodicilthatexpressly
referstothetrustorspecificallydevisespropertythatwouldotherwisehavepassed
accordingtothetermsofthetrust:or2.Anyothermethodmanifestingclearand
convincingevidenceofthesettlorsintent.
Therevocationoftrustcouldbechallengedforlackofcapacity,undueinfluence,or
othergrounds.
Arevocabletrustmayhavetwosettlors(ajointtrust),inwhichcaseeachsettlorwould
havetherighttoamendorrevokethetrustwithrespecttothepropertyheorshe
contributed.(treatthemasseparatetrusts).
Wherearevocabletrustwascreatedbytwosettlors,thetermsofthetrustmayinclude
specificprovisionsgoverningrevocation.

Roberts v. Sarros
920 So. 2d 193 (Fla. 2d DCA 2006)
Rule: Absent a provision stating otherwise, the use of a provision stating this trust may be
amended by the grantors, the court will presume that both grantors must agree to amend the
trust, and that the death of one grantor renders the trust irrevocable.
* An amendment to a revocable trust that contains testamentary aspects has to be executed with
the same will formalities.
Chapter 21. Wills-Trusts Crossover Issues
II. Crossover Issues
A. Mistake, Reformation, and Construction
-- Fla. Stat. 736.0406 provides that a trust, or any portion thereof, procured by mistake is void.
- Fla. Stat. 736.0415 provides that the court may reform the terms of a trust, even if
unambiguous, to conform the terms to the settlors intent if it is proved by clear and convincing
evidence that both the accomplishment of the settlors intent and the terms of the trust were
affected by a mistake of fact or law, whether in expression or inducement. The Court can also
void that portion of the trust procured by mistake if they cannot arrive at the settlors intent.
Patent ambiguity- extrinsic evidence is allowed
Latent ambiguity- only look to the four corners of the document.
Barnett First National Bank of Jacksonville v. Cobden
393 So. 2d 78 (Fla. 5th DCA 1981)
Rule: Where the terms of an instrument are clear and unambiguous, there is no need for the court
to engage in a construction of such instrument. However, where there is ambiguity or
uncertainty arising form the language used which obscures the intent of the testator, construction
of the instrument is necessary. The naming of a successor trustee indicates a preference on the
part of the testator and where ambiguity exists regarding when such preference should be
invoked, it should be resolved in favor of effectuating the testators preference absent convincing
proof of a contrary intent or purpose of the testator.
Robinson v. Robinson (In re Estate of Robinson)
720 So. 2d 540 (Fla. 4th DCA 1998)
Issue(s): Whether the testamentary aspects of an inter vivos trust are subject to reformation after
the death of the settlor? Rule: Reformation of a trust based on mistake is permissible where the
action is between competing beneficiaries. A trust with testamentary aspects may be reformed
after the death of the settlor for a unilateral drafting mistake so long as the reformation is not
contrary to the interest of the settlor. (The same goes for revocable and irrevocable trusts).
Davis v. Rex
876 So. 2d 609 (Fla. 4th DCA 2004)

Rule: Whether the trust is revocable or irrevocable, a trust with testamentary aspects may be
reformed after the death of the settlor for a unilateral drafting mistake so long as the reformation
is not contrary to the interest of the settlor. While the law does favor early vesting as a matter of
presumption, it is the intent of the testator as expressed in the instrument which controls. If the
designation of beneficiaries is deemed too indefinite for enforcement of the provisions of a trust,
the usual result is that the trust is void and the designated trustee holds the corpus under a
resulting trust in favor of the estate of the settlor..Where it is compatible with the settlors
intent, it may be possible to sever the uncertain provision from an accompanying enforceable
one, so that the remaining provision, and the trust as a whole, may be preserved.
B. Undue Influence
Fla. Stat. 736.0406 provides that a trust, or any portion thereof, is void if its creation was
procured by undue influence and that the revocation of a trust, or any part thereof, procured by
undue influence, such revocation is void.
Fla. Stat. 736.0207 provides that, generally, a challenge to a settlors revocation of a revocable
trust cannot be commenced until the settlors death.
Florida National Bank of Palm Beach County v. Genova
460 So. 2d 895 (Fla. 1984)
Issue(s): Whether the settlor, who is the sole beneficiary of the trust during her lifetime could be
deprived, prior to her death, of her right to revoke the trust in the absence of judicial
determination or medical certification of her physical or mental incapacity? Rule: Once a trustee
determines that (1) the settlor has reserved the power to revoke and (2) the power to revoke has
been validly exercised, that ends the inquiry. The trustees only duty at that point is to return the
trust assets to the settlor. The validity of a revocation of a revocable trust cannot be challenged
due to undue influence during the settlors lifetime. The settlor must pass away before anyone
can challenge the validity of the revocation.
C. Lapse and Antilapse
- Fla. Stat. 736.1106 covers both testamentary and inter vivos trust. It requires a beneficiary of
a future interest under either type of trust to survive to the distribution date. Thus, a beneficiary
in an inter vivos trust receives a future interest contingent on them surviving longer than the
settlor. (contingent on the beneficiarys surviving to the distribution date).
- Fla. Stat. 736.1106 makes all future interests in trusts contingent on the beneficiarys
surviving to the distribution date. The statute applies only to future interests in trusts.
Accordingly, the rare legal (not equitable interest) future interest would continue to by analyzed
under the traditional property law rules discussed above.
- Fla. Stat. 736.1106 is a rule of construction. It states words of survivorship attached to a
future interest are a sufficient indication of an intent contrary to the application of this section.
Thus, a settlor can specify whether a future interest is vested or is contingent on surviving until
the distribution. In addition, the settlor can provide who will receive the income or principal
when a prior interest terminates.
e. Comparison to Wills Antilapse Statute
- There are significant differences between antilapse statute for wills and trusts.

- First, application is different. In a will, the critical timing issue is whether the devisee died or is
deemed to have died before the testators death. By contrast, in a trust, the critical issue is
whether the beneficiary died or is deemed to have died before the trusts distribution date. The
distribution date in a trust could be before or long after a settlors death.
- Another major difference between the two is that the antilapse statute for wills applies a
relationship test before substituting descendants for the deceased devisee. The statute that
governs wills specifically requires the deceased devisee to have been either a grandparent or a
descendant of a grandparent of the testator. In terms of future interests in trusts, however, the
applicable statute providing a substitute gift does not require any relationship at all between the
deceased beneficiary and the settlor of the trust before applying the substitute gift.
Sorrels v. Mcnally
105 So. 106 (Fla. 1925)
Rule: All doubt as to whether a legacy is vested or contingent is resolved, if possible, in favor of
vesting, if this can be done, by fair and reasonable construction of the whole will, and no estate
will be held to be contingent, unless very decided terms are used in the will, or it is necessary to
so hold in order to carry out the other provisions or implications of the will. Devises vest at the
death of the testator, unless there is clear intent to postpone the vesting. The rule seems to be well
settled that where there is a devise to an individual or a class upon attaining a certain age, such
devise is prima facie contingent; but when the devise carries to the same individual or class, the
income from the estate to accrue in the meantime, it will be construed as conferring a vested
interest.
Note: Fla. Stat. 736.1106 provides that the beneficiary must survive the distribution date or else
the anti lapse statute will apply and the assets will go to that beneficiaries descendents, absent a
contrary provision in the trust/will. If there are no descendants then the assets will revert to the
testators estate.
Jackson v. Exchange National Bank of Tampa
12 So. 2d 450 (Fla. 1943)
Rule: The rule is that where a testator makes a bequest to one for life with remainder over to a
third party and the life tenant predeceases the testator, the bequest becomes a naked trust payable
direct to the third party. The death of the life tenant merely accelerates the time when the
bequest over is vested.
D. Divorce
- Fla. Stat. 736.1105 provides that unless the trust instrument or the judgment for dissolution
of marriage or divorce expressly provides otherwise, if a revocable trust is executed by a
husband or wife as settlor prior to annulment of the marriage or entry of a judgment for
dissolution of marriage or divorce of the settlor from the settlors spouse, any provision of the
trust that affects the settlors spouse is void upon annulment of the marriage or entry of the
judgment of dissolution of marriage or divorce and any such trust shall be administered and
construed as if the settlors spouse had died on the date of the annulment or on entry of the
judgment for dissolution of marriage or divorce.
* Since this statute only applies to revocable trust, it is in the best interest, when executing
an irrevocable trust, to make the spouses interest contingent on the marriage surviving.

E. Killer
- Fla. Stat. 736.1104 provides that a beneficiary of a trust who unlawfully and intentionally
kills or unlawfully and intentionally participates in procuring the death of the settlor or another
person on whose death such beneficiarys interest depends, is not entitled to any trust interest,
including homestead, dependent on the victims death and such interest shall devolve as though
the killer had predeceased the victim. This rule applies to both revocable and irrevocable trusts.
F. Changes in Securities
- Fla. Stat. 732.605
Brundage v. Bank of America
996 So. 2d 877 (Fla. 4th DCA 2008)
Rule: You are only entitled to the amount of stock left in the trust when the settlor dies.
G. Penalty Clause
- Fla. Stat. 736.1108 provides that a provision in a trust purporting to penalize a person for
contesting the trust instrument is unenforceable.
Chapter 22. Trusts Providing Protection from Creditors
III. Creditor Access
- A fundamental principle of creditor access is that the creditor generally stands in the shoes of
the debtor. Accordingly, a creditor can generally reach property that the debtor can access and
freely alienate.
- Similarly, following standard creditor access principles, if an equitable interest is clearly
determinable and freely alienable by the trust beneficiary, the beneficiarys creditor can generally
reach that interest.
A. Spendthrift Provisions
- A spendthrift provision or spendthrift clause is typically drafted to restrict both the voluntary
and involuntary alienation of a beneficiarys interest in a trust. Through careful drafting, a settlor
can restrict a beneficiarys equitable interest in a trust and protect it from creditors. This is done
by including a provision in the trust document explicitly restricting a beneficiarys right to
voluntarily or involuntarily alienate his interests.
- These provisions generally include language restricting a beneficiary from selling, giving away,
assigning, or otherwise alienating his beneficial interests. These provisions also include
language restricting the beneficiarys creditors from accessing the interests in trust.
- Fla. Stat. 736.0502 provides that in order for a spendthrift clause to be valid it must restrict
both voluntary and involuntary transfers.
Notes:
- If a trust does not include a spendthrift provision, Fla. Stat. 736.0501 applies. It provides that
the creditor may reach the beneficiarys interest by attachment of present or future
distributions.

1. A spendthrift clause in a trust restricts the alienation of a beneficiarys equitable interest in the
trust. A spendthrift clause does not prevent a trustee from selling trust property. (applies to the
case above).
B. Exceptions That Give Creditors Access
- Florida law looks at two factors to determine whether a spendthrift clause or additional creditor
protection features will be effective to block a creditors access to the debtor/beneficiarys trust
interest. The factors are: (1) the type of creditor staking a claim; and (2) the type of distributive
interest the debtor/beneficiary has in the trust.
1. Type of Creditor
Bacardi v. White
463 So. 2d 218 (Fla. 1985)
Issue(s): Whether disbursements form spendthrift trusts can be garnished to satisfy court ordered
alimony and attorneys fee payments before such disbursement reach the debtor-beneficiary?
Rule: a former spouse can garnish disbursements from spendthrift trusts to satisfy court ordered
alimony, attorneys fees as a result of the divorce, and child support, before such disbursements
reach the debtor-beneficiary but only as a last resort, i.e. the debtor does not have any other
means of paying, no other property, etc. If disbursements are wholly within the trustees
discretion, the court may not order the trustee to make such disbursements, however, if the
trustee exercises its discretion and makes a disbursement, that disbursement may be subject to
garnishment. Scheduled disbursements, not subject to the trustees discretion are garnishable. A
continuing writ of garnishment for future alimony/child support against the spendthrift trust is
allowable in lieu of an injunction on the debtors property. This is also a last resort when there is
no other way of enforcing alimony arrearages.

2. Different Distributive Provision

3 type of distribution provisions for trusts:
(1) Mandatory Distribution Provision: Trustee shall distribute all trust income quarterly to A.
(2) Support Distribution Provision: Trustee shall distribute such income as necessary for As
support, health, and education.
(3) Purely Discretionary Provision: Trustee may, in his sole absolute and unfettered discretion,
distribute some, all, or no income to A or instead distribute such income to other trust
beneficiaries.
- The Bacardi court expressly held that a special creditor can reach assts by attachment in a
mandatory distribution trust and noted that such a creditor cannot reach assets in a discretionary
trust until after the trustee exercises its discretion and makes a distribution. The Bacardi court
was silent, however, with respect to support trusts.

Exceptions to spendthrift provision

(1) As used in this section, the term "child" includes any person for whom an order or
judgment for child support has been entered in this or any other state.
(2) To the extent provided in subsection (3), a spendthrift provision is unenforceable
against:
(a) A beneficiary's child, spouse, or former spouse who has a judgment or court
order against the beneficiary for support or maintenance.
(b) A judgment creditor who has provided services for the protection of a
beneficiary's interest in the trust.
(c) A claim of this state or the United States to the extent a law of this state or
a federal law so provides.
Miller v. Kresser
34 So. 3d 172 (Fla. 4th DCA 2010)
Rule: When a trust document provides the trustee with complete discretion over distributions, a
creditor may only reach those distributions the trustee chooses to make. The creditor may not
compel a distribution from the trustee or attach any interest in the trust before the trustee makes a
distribution. This applies whether or not the trustee has abused his discretion in managing the
trust. There is no law in Florida suggesting that a beneficiarys creditors may reach trust assets in
a discretionary trust simply because the trustee allows the beneficiary to exercise significant
control over the trust. It is only when a beneficiary has received distributions from the trust, or
has the express right to receive distributions from the trust, that the creditor may reach those
distributions. It is not the role of the courts to evaluate how well the trustee is performing his
duties. We are instead limited, by statute, to evaluating the express language of the trust to
determine the extent of the beneficiarys control and the extent to which a creditor may reach
trust assets.
1) Creditors cannot reach a discretionary trust or force a discretionary payment
2) Only special creditors can reach spendthrift trusts (alimony, child-support,
government, people who delivered services for the benefit of the beneficiary in regards to
the trust like attorneys fees.)
3) Purely mandatory trusts (no spendthrift provision, no discretion) may be reached by
creditors

Notes:
2. Fla. Stat. 736.0503 allows a special creditor to obtain a court order attaching present or
future distributions slated to or for the benefit of the debtor/beneficiary of a spendthrift trust.
There are two caveats to this. First, a court may limit the award as appropriate under the
circumstances. Second, the last resort principle enunciated in Bacardi must be met. Thus, the
special creditor would have to prove traditional methods of enforcing the claim are
insufficient.
4. Forfeiture clauses terminate a beneficiarys interest in the trust if (1) the beneficiary attempts
to transfer his interest, (2) creditors of the beneficiary attempt to reach his interest, or (3) the
beneficiary declares bankruptcy or is declared bankrupt. Creditors of the beneficiary whose
interest was forfeited cannot reach the trust because the beneficiary himself has no interest in the
trust once the clause is triggered.
3. Self-Settled Trusts
A self-settled trust is a trust in which the settlor is also a beneficiary. For public policy reasons, a
settlor cannot deposit her property in a self-settled trust in order to avoid her creditors.
Menotte v. Brown (In re Brown)
303 F.3d 1261 (11th Cir. 2002)
Issue(s): Whether a spendthrift trust that is self-funded by the beneficiary is vulnerable to
alienation by her creditors? Rule: Florida law will not protect assets contained within a
spendthrift trust to the extent the settlor creates the trust for her own benefit, rather than for the
benefit of another. Self settled trusts may be reached by creditors, even if the settlor was solvent
at the time of the trusts creation and no fraud was intended. It is immaterial that in creating the
trust the settlor did not intend to defraud is creditors. It is immaterial that he was solvent at the
time of the creation of the trust. It is against public policy to permit a man to tie up his own
property in such a way that he can still enjoy it but can prevent his creditors from reaching it.
Notes:
6. In order to protect a disabled beneficiarys interest, and yet ensure that the trust resources do
not disqualify the disabled beneficiary from obtaining governmental aid, a testator/settlor may
create special needs or supplemental needs trust. The testator/settlor must be extremely
careful when establishing these trusts.
Chapter 23. Additional Uses for TrustElective Share Trusts; Marital Deduction
Planning; Life Insurance Trusts; Trusts for Animals; and Twenty-One Year Trusts for
Noncharitable Purposes.

III. Elective Share Trusts

A. Using Life Insurance to Fund the Elective Share

- Clients may use life insurance as a tool for limiting the surviving spouses share of the estate
assets. This involves arranging to satisfy the elective share amount with proceeds of a life
insurance policy payable to the surviving spouse.

- Only the cash surrender value of a life insurance policy, and not the much larger amount of the
policy proceeds, is included in computing the elective estate. But the full proceeds payable to the
spouse are counted in determining if the spouse has received the 30 percent elective share. (if the
spouse is the beneficiary of the insurance policy).
B. Establishing an Elective Share Trust
- Fla. Stat. 732. 2025(2); Rather than transferring property outright to a spouse, the client might
transfer assets to an elective share trust. An elective share trust is a trust that meets three
statutory requirements: (a) the surviving spouse is entitled for life to the use of the property or to
all the income payable at least as often as annually; (b) the surviving spouse has the right to
require the trustee either to make the property productive or to convert it within a reasonable
time; and (c) during the surviving spouses life no one other than the surviving spouse has the
power to distribute income or principal to anyone other than the surviving spouse.
C. Valuing an Elective Share Trust
Once it is determined that a trust meets the requirements of an elective share trust, the next step
is to determine what percentage of the value of the trust counts toward satisfying the surviving
spouses 30 percent elective share amount.
- The more rights the surviving spouse has in the elective share trust, the more the spouses
interest in that trust can be used to satisfy the elective share amount.
- Fla. Stat. 732.2095(2)(b) provides that if the surviving spouse has an interest in a trust that
meets the requirements of an elective share trust, the value of the spouses interest is 100 percent
of the value of the trust if the spouse has both (1) a qualifying invasion power and (2) a
qualifying power of appointment.
A qualifying invasion power is defined as power held by the surviving spouse or trustee
to invade trust principal for the health, support, and maintenance of the spouse.
For purposes of elective share trusts, a qualifying power of appointment is defined
basically as a general power of appointment exercisable by the spouse in favor of the
spouse or the spouses estate. The spouses power for these purposes can be
exercisable both during life and at death. If the spouse receives only a testamentary
power, however, she must have the power to exercise it in favor of her estate without
the consent of any other person. Pgs. 504-505
- an elective share trust does not need to include either power. Omitting either or both
powers reduces the amount treated as satisfying the elective share. If the surviving
spouse receives a qualifying invasion power but no qualifying power of appointment,
Fla. Stat. 732. 2025(2)(b)(2) values the spouses interest as 80 percent of the trust
assets. If the trust does not include either power, or it includes a power of
appointment but no power of invasion, the value of the spouses interest is 50 percent.
Fla. Stat. 732. 2025(2)(b)(3)
D. Using Life Insurance for Elective Share Trusts
- The insurance contract does not have to name the surviving spouse as the beneficiary. Instead,
the proceeds may be made payable to an elective share trust. The advantages are that the
proceeds can be treated as satisfying the elective share, but only the much smaller cash surrender
value (if any) is counted in determining the amount of the elective estate.
- In drafting the trust, it is important to remember that limiting the spouses rights reduces the
amount that can be treated as satisfying the elective share.

V. Life Insurance Trusts

- Life insurance contracts or the rights to the proceeds thereof are often held in trusts in order to
accomplish both tax and non-tax objectives. To achieve transfer tax savings, a taxpayer must
irrevocably relinquish all her rights in the policy more than three years before her death. These
include rights to designate or change the beneficiary, obtain the cash surrender value, and borrow
against the policy. An irrevocable trust can achieve the transfer tax benefit of such a
relinquishment, but a revocable trust cannot.
- Although it will not achieve transfer tax savings, there are non-tax reasons for creating a
revocable life insurance trust. Life insurance trusts are valuable tools for providing support,
particularly if the insured is survived by minor children.
Sander v. Citizens National Bank of Leesburg
585 So. 2d 1064 (Fla. 5th DCA 1991)
Issue(s): Whether the settlor of an irrevocable trust can sue the trustee for breach of its trust
duties? Rule: The settlor of an irrevocable trust who has retained no beneficial interest in the
trust res has no right of action against the trustee for either breach of the trust or breach of
contract. However this rule is subject to 3 exceptions: (1) the grantor had some foreseeable
economic interest in the subject matter of the alleged breach; (2) the breach violated the grantors
substantial expectations, which expectations resulted from the trustees action in soliciting or
accepting the trust; or (3) the grantor is acting as the representative of the beneficial interest.
VI. Trusts for Animals
A. Overview
- Fla. Stat. 736.0402(1)(c) provides that a valid private express trust must have an identifiable
beneficiary unless it is a charitable trust or meets one of two statutory exceptions. The first
exception, Fla. Stat. 732. 0402(1)(c)(2), is a trust for the care of an animal as provided in Fla.
Stat. 736.0408.
- Fla. Stat. 736.0408(2) provides that a settlor can appoint someone in the trust instrument to
enforce the trust on behalf of the pet. The court can also appoint someone to enforce the trust
terms.
Phillips v. Estate of Holzmann
740 So. 2d 1 (Fla. 3d DCA 1998)
Rule: Upon the failure of a Honorary trust, the trust becomes a resulting trust for the benefit of
the estates residual beneficiaries.
VII. Twenty-One Year Trusts for Noncharitable Purposes
- 736.0409(1) provides that except as otherwise provided in 736.0408 or by another provision of
law a trust may be created for a noncharitable purpose without a definite or definitely
ascertainable beneficiary or for a noncharitable but otherwise valid purpose to be selected by the
trustee. The trust may not be enforced for more than 21 years.
- This type of trust is not a charitable trust because those require a charitable purpose
- It is also not a private express trust because a private express trust require an identifiable or
ascertainable beneficiary.

- Ex: a bequest of money to be distributed to such objects of benevolence as the trustee might
select.
Chapter 24. Termination and Modification of Irrevocable Trusts
II. Introduction
Traditional common law of trusts provided that an irrevocable trust could be prematurely
terminated by the beneficiaries only if (1) there was unanimous consent of all the trust
beneficiaries for such premature termination and (2) the termination would not jeopardize a
material purpose of the settlor in creating the trust.
III. Common Law of Termination and Modification
- Although Florida has codified the law of early termination and modification, those statutes
were derived from common law.
A. Nonjudicial Termination and ModificationCommon Law
The common law distinguishes between nonjudicial and judicial modification.
- Basically, if all of the beneficiaries consent and the termination does not conflict with the
material purpose of the trust then the irrevocable trust may be terminated. If the termination of
the trust does conflict with the material purpose of the trust, then the settlor must agree to the
trusts termination, or, if the settlor is dead, the court must determine if the reason for termination
outweighs the material purpose of the trust.
- The consent of the settlor of an irrevocable trust cannot cure lack of full beneficiary consent.
- The objection of the settlor will not have any influence as long as the material purpose of the
trust is not eliminated by its termination.
1. Material Purpose
Claflin v. Claflin
20 N.E. 454 (Mass. 1889)
Rule: A trust may be terminated or modified when there was a dry trust, or when the purposes of
the trust had been accomplished, or when no good reason was shown whey the trust should
continue, and all the persons interested in it were sui juris, and desired that it be terminated.
2. Unanimous Consent of Beneficiaries
White v. Bourne
9 So. 2d 170 (Fla. 1942)
Rule: If all the beneficiaries of a trust consent to its termination or modification a trustee cannot
compel the court to stay the modification or termination. All that matters is the unanimous
consent of the beneficiaries; agreement from the trustees is not necessary.

Goldentrester v. Richard (In re Estate of Goldin)

498 So. 2d 1303 (Fla. 3d DCA 1986)
Issue(s): Whether a testamentary trust which makes a semi-annual award of income to the
beneficiaries in an amount which is less that the total income without fixing a termination date,
and which awards all of the residual estate to the same beneficiaries, should fail as a trust and the
assets awarded to the beneficiaries? Rule: The beneficiaries of a trust, if all consent and none is
under an incapacity, can compel its termination if the continuance of the trust is not necessary to
carry out a material purpose of the trust, although the period fixed by the terms of the trust for its
duration has not expired.
Bieley v. Bieley
398 So. 2d 932 (Fla. 3d DCA 1981)
Issue(s): Whether a settlor can amend the terms of an irrevocable trust without the consent of the
beneficiary? Rule: An irrevocable trust may be amended without the consent of the beneficiary
when the settlor surrenders privileges or rights in favor of the beneficiary.
1. If the trust contains a material purpose, then the trust could be terminated only by unanimous
consent of the beneficiaries if the settlor waived the material purpose. If, however, the settlor (1)
was dead, (2) was not legally competent to waive the material purpose, or (3) refused to waive
the material purpose, the beneficiaries could not terminate using nonjudicial termination.
2. If the beneficiaries may compel premature termination they also have the power to modify the
trust.
B. Judicial Termination and ModificationCommon Law
If the requirements for nonjudicial modification or termination could not be met, an irrevocable
trust could nevertheless be modified by a court if the requested modification was due to a change
in circumstances not anticipated by the settlor and certain other requirements were met. The
court may modify an irrevocable trust if because of circumstances not anticipated by the settlor
the modification or deviation will further the purposes of the trust. The objective is to give effect
to what the settlors intent probably would have been had the circumstances in question been
anticipated.
Mills v. Ball
380 So. 2d 1134 (Fla. 1st DCA 1980)
Facts: First DuPont case where the trustees voted on several more trustees because the trust
continued to increase in size. Rule: Where there has been a change of circumstances after the
creation of the Trust and it is possible to find a manifestation of intention by the settlor that the
trustee may adjust his conduct to the change and act as he would not otherwise be intended to
act, the trustee is not deviating from the terms of the trust in so acting.
IV. Florida Statutory Law on Termination and Modification
Florida statutory law separates termination and modification into two categories, judicial and
nonjudicial.

- Florida statutory law operates in addition to, and not in derogation of, rights under the
common law to modify, amend, or revoke trusts. Furthermore, under all three statutes, a trust
cannot be modified, terminated, or reformed unless it is or until it becomes irrevocable. Finally,
all provide for the same type of relief, specifically (1) to amend administrative or distributive
terms, (2) to terminate the trust in whole or in part, or (3) to increase or decrease the acts a
trustee is authorized to perform.
A. Nonjudicial Termination and Modification
Fla. Stat. 736.0412 allows for nonjudicial termination or modification by the beneficiaries.
This section applies only if certain requirements are satisfied. (1) there must be unanimous
consent of the qualified beneficiaries, (2) there must be consent of the trustee, and (3) the settlor
must be dead at the time the modification or termination is sought. Modification under this
statute is not prohibited even if the trust contains a spendthrift clause.
- Fla. Stat. 736.0412 is different form the common law in that it requires the consent of the
trustee. Second, under the common law, a trust that has a material purpose can be modified or
terminated with unanimous consent of the beneficiaries and the settlor. Fla. Stat. 736.0412 only
applies when the settlor is already dead.
B. Judicial Termination and Modification
- Fla. Stat. 736.04113 provides for judicial modification when it is consistent with the settlors
intent, and Fla. Stat. 736.04115 provides for judicial modification when compliance with the
trust is not in the best interest of the beneficiaries.
- Under both sections, a trustee or qualified beneficiary may ask the court to terminate the trust
or modify the trusts terms.
- Both judicial modification sections allow a court to consider (1) the terms and purposes of the
trust, (2) the facts and circumstances surrounding the trusts creation, and (3) all relevant
extrinsic evidence. When making a termination or modification decision, the court can go
beyond the four corners of the trust instrument. Also, a spendthrift provision does not
automatically bar modification.
Clement v. Charlotte Hospital Assn, Inc.
137 So. 2d 615 (Fla. 2d DCA 1962)
Rule: A trust estate is vested in the trustee, but its duration and extent are governed by the
requirements of the trust. When no intention to the contrary appears, the trust estate will not be
continued beyond the purposes of its creation as set forth in the trust instrument. When these
purposes are accomplished, the trust estate ceases to exist and the trustees title becomes extinct.
The extent and duration of the estate are measured by the objects of its creation.
- Fla. Stat. 736.0415 authorizes reformation by a court specifically to correct a trust provision
which does not reflect the settlors intent, due to a mistake of fact or law. The statute requires
clear and convincing evidence of both the settlors intent and the fact that the trust term to be
reformed was affected by a mistake. The settlor or any interested person may institute suit for
reformation.
- Fla. Stat. 736.04117 allows a trustee who has absolute power to invade the principal of a trust
to transfer those assets to a new trust instead of distributing the principal outright to the
beneficiary. The term absolute power refers to a power that is not limited by an ascertainable
standard.

- Fla. Stat. 736.0414 provides that at trust may be terminated if it is uneconomic. $50,000 or
less.
- Fla. Stat. 689.09 provides that if the trust is a passive or dry trust, meaning that land or
property is being held in trust with no purpose, then the trust can be terminated.
Chapter 25. Charitable Trusts
II.Introduction
Charitabletrustsmusthaveapurposethatbenefitsthecommunitygenerally.
Acharitabletrustmustmeetthesamerequisiteformalitiesthatarenecessaryforaprivate
expresstrust.Accordingly,atestamentarycharitabletrustmustbeexecutedlikeawilland
complywithFla.Stat.732.502.
Acharitabletrustmustalsohavethenecessarysubstantiveelements.Thefirstthreeelements
areidenticaltotheonesrequiredforaprivateexpresstrust.However,acharitabletrustis
differentwithregardstoitsfinalsubstantiveelements.
Substantive Elements:
(1) Res
(2) the settlor must indicate the intent to create a trust (capacity)
(3) the trust must have a trustee with fiduciary duties
(4) the beneficiaries must be charitable organizations or indefinite beneficiaries
(5) The trust must have a purpose that is not illegal, is capable of being fulfilled and it
must have a charitable purpose.
- Fla. Stat. 736.0405(1) provides that charitable purposes include but are not limited to the
relief of poverty, the advancement of arts, sciences, education, or religion, and the promotion of
health, governmental, or municipal purposes.
- Unlike a private express trust which can only be enforced by a beneficiary, a charitable trust is
either enforced by the State Attorney General, a charitable beneficiary designated as a
beneficiary under the trust, or the settlor of the trust.
- Fla. Stat. 736.0405(3) provides that the settlor of a charitable trust has standing to enforce the
trust.
III. Charitable Trust or Charitable Gift
Adonormustuseclearlanguagewhencreatingacharitabletrusttoavoidambiguityasto
whethertherewasatrustcreatedorsimplyagiftgiven.

Persan v. Life Concepts, Inc.

738 So. 2d 1008 (Fla. 5th DCA 1999)
Rule: Making a gift to a charity for a specific project or purpose does not in itself create a
charitable trust. A charity has to be able to know when a donation is a gift and when it is merely
an offer to fund a trust for which the charity is taking on a fiduciary responsibility, thus, the
creation of such a trust must be express. Although it is not clear under the Florida Statutes
whether the creation of a charitable trust must be in writing, it is clear that creation of a trust in
land must be in writing and signed by the party creating the trust.
Schwarzkopf v. American Heart Assn of Greater Miami, Inc.
541 So. 2d 1348 (Fla. 3d DCA 1989)
Issue(s): Whether the beneficiaries of a charitable trust may have the trust terminated
prematurely when a provision of the trust clearly identifies the duration of the trust and the
termination date? Rule: Where there is a clear an unambiguous provision in a trust instrument as
to duration of the trust, the matter will be governed by the trust instrument. A trust may not be
terminated before the expiration of the term for which it is established.

IV. Standing and Enforcement

* Look above
Delaware v. Florida First National Bank of Jacksonville
381 So. 2d 1075 (Fla. 1st DCA 1979)
Issue(s): Who has standing to enforce a charitable trust? Rule: As a general rule, only the
Attorney General (of the state the trust was created) may enforce a charitable trust. However, it
has been recognized that an entity other than the Attorney General can be a proper party to bring
suit to enforce a charitable trust. Trustees have been permitted to bring suit against co-trustees,
and persons or organizations having a special interest in a trust or a special status under a trust
instrument are considered to have standing to enforce the trust. A party alleging a special interest,
an interest beyond that general interest possessed by the public at large, has standing to bring
suite because it satisfies the same purpose has giving the Attorney General exclusive power to
begin proceedings because it does not give a large or shifting class of the public the power to
bring suit.
V. Rule Against Perpetuities and Charity to Charity Exception
Another major difference between a charitable express trust and a private express trust relates to
duration. The settlor has the option, if she so chooses, to establish a charitable trust with
indefinite duration. However, not every gift to a charity is exempt from the Rule Against
Perpetuities. The exception allowing a perpetual charitable trust applies only to a purely
charitable trust (charity to charity). If the trust has both private and charitable beneficiaries,
the exception does not apply.
VI. Cy Pres Doctrine
When the original purpose of the perpetual charitable trust terminates, the State may take action
to save the trust. This is called Cy pres.
- Cy pres is used to approximate the settlors goals as closely as possible while maintaining the
public benefits of the perpetual charitable trust.
- The courts allow modification of the terms of a charitable trust using cy pres if two conditions
are met: (1) it has become impossible, impractical, or illegal to carry out the particular purpose;
and (2) the settlor manifested a more general charitable intent with regard to the trust. If no such
general intent can be imputed to the settlor, the trust fails. Cy pres would also not be appropriate
if the settlor provides an alternative disposition in the trust.
Jewish Guild for the Blind v. First National Bank in St. Petersburg
226 So. 2d 414 (Fla. 2d DCA 1969)
Facts: Jewish building. Rule: Cy pres doctrine is applicable: where a testator in his will
evidences a general intention to be executed in a prescribed manner, and such intention cannot be
executed in accordance with the terms of the will, the doctrine will permit a court of equity to
execute the intention with as close proximity to the terms of the will as is reasonably possible.
When the testator himself provides for an alternative however, there is no need to apply the
doctrine at all; and the general rule is that it will not be applied.

Chapter 28. Fiduciary Powers, Duties and Liabilities

A trustees powers are limited by a trustees duties. A trustee must not exercise a power if doing
so would cause the trustee to violate one or more of the trustees duties. A trustee may be liable
to the trust beneficiaries if the trustee violates one or more of the trustees duties.
III. Powers
A trustee derives powers from four sources: (1) the express provisions of the trust instrument
delineating the trustees powers; (2) state statutes granting trustees certain powers; (3) powers
recognized by common law; and (4) authorization from a court.
- Fla. Stat. 736.0815 provides that a trustee has (1) all the powers granted in the trust
instrument, and, (2) except as limited by the instrument, (i) all the powers over trust property that
an unmarried competent owner has over individually owned property and (ii) the powers listed in
the FTC. Thus, the settlor may use the trust instrument to expand or limit statutory or common
law powers.
McMullin v. Beaver
905 So. 2d 928 (Fla. 4th DCA 2005)
Issue(s): When does a trustees duties end? Rule: By statute, a trustee has the power to
prosecute actions, claims or proceedings for the protection of trust assets and of the trustee in
the performance of his or her duties: until final distribution of the trust assets. After a trust is
terminated, a winding up period is usually necessary.
IV. Duties
A duty may relate to the distribution of the trust or its administration (or both). The trustee has a
general duty to administer the trust in good faith for the benefit of the beneficiaries and in
compliance with the terms of the trust. In addition to this general duty, trustees have several
other specific duties (which are listed below).
A. Duty to Administer Trust in Good Faith
Of all the trustees duties, the most essential is the trustees general duty to administer the trust in
good faith and in accordance with the terms and purposes of the trust instrument for the benefit
of the beneficiaries. This general duty is intrinsic to the fiduciary relationship and is a mandatory
provision.
Anton v. Anton
815 So. 2d 768 (Fla. 4th DCA 2002)
Issue(s): Whether a co-trustee can be held liable for the actions of his counterpart? Rule: Where
there are several trustees, each is under a duty to participate fully in the administration of the
trust. One trustee who delegates to another the administration of a trust breaches the duties of a
trustee.
B. Duty of Loyalty
- The duty of loyalty requires a trustee to administer the trust solely in the interests of the
beneficiaries. This duty prohibits the trustee from transacting in her individual capacity with the
trust and from entering into transactions where the trustee is not directly dealing with the trust
but, nevertheless, has a conflict of interest.

- The duty of loyalty prohibits a broad range of activity by the trustee. These prohibited
transactions include: the trustees purchase or lease of trust property for her own account, sale of
trust property to a third person with an understanding that the third person then will sell to the
trustee, sale of trust property to a corporation in which the trustee is a substantial owner or serves
in a management capacity, sale of the trustees individually owned property to the trust, purchase
by a corporate trustee of its own stock as an investment for the trust, and appropriation of a trust
opportunity.
- Generally, if a trustee breaches her duty of loyalty by self-dealing, there is no further inquiry
and the transaction is void regardless of the fairness of the transaction. This no further inquiry
rule is applicable in all self-dealing transactions, i.e., where the trustee individually is a party to
the transaction with the trust, and in any transaction where the trustees personal interests are
substantially affected. If the trustees conflict is not substantial, then the trustee may avoid
liability by establishing the fairness of the transaction. It then becomes a matter of
mismanagement because, even in the absence of a conflict, a trustee could be liable for a bad
deal.
Wickman v. McGraw (In re Trust under Will of Wickman)
289 So. 2d 788 (Fla. 2d DCA 1974)
Rule: The trustee in dealing with the beneficiary on the trustees own account is under a duty to
the beneficiary to deal fairly with him and to communicate to him all material facts in connection
with the transaction which the trustee knows or should know.
- Fla. Stat. 736.0802 provides that a trustee may not engage in acts which personally benefit the
trustee, conflict with the trustees fiduciary duties, or appropriate an opportunity of the trust. A
key difference from the common law is that actions taken by the trustee are subsequently
voidable by any affected beneficiary under the trust (not automatically void). If you get all
the beneficiaries consent with an irrevocable trust, then self-dealing will not be void. If you
get the settlors consent with a revocable trust, then self-dealing will not be void. However,
in both circumstances the trustee must give full disclosure to the beneficiaries or the settlor,
depending on what kind of trust it is.
- Fla. Stat. 736.0802(5) provides that an investment by a trustee authorized by lawful
authority to engage in trust businessin investment instrumentsthat are owned or controlled
by the trustee or its affiliate, or from which the trustee or its affiliate receives compensation for
providing services in a capacity other than as a trustee, is not presumed to be a conflict between
the personal and fiduciary interests.
Keye v. Gautier
684 So. 2d 210 (Fla. 3d DCA 1996)
Rule: Fla. Stat. 737.403(2) requires a trustee to seek approval from a court for the exercise of a
trust power when it conflicts with the trustees individual interest.
- Fla. Stat. 736.0802(2)(d) provides that transactions afflicted with a conflict are not voidable
by the beneficiaries if the beneficiaries consented to the trustees conduct and the consent was in
compliance with Fla. Stat. 736.1012

C. Duty of Impartiality
- Fla. Stat. 736.0803 provides that a trustee must administer a trust impartially such that the
administration is equitable to all trust beneficiaries. The duty of impartiality applies whether the
beneficiaries interests or the purposes are successive or concurrent.
- A trustee must administer a trust impartially, requiring that: (a) in investing, protecting, and
distributing the trust estate, and in other administrative functions, the trustee must act impartially
and with due regard for the diverse beneficial interests created by the terms of the trust; and (b)
in consulting and otherwise communication with beneficiaries, the trustee must proceed in a
manner that fairly effects the diversity of their concerns and beneficial interests.
D. Duty to Administer Trust Prudently
Fla. Stat. 736.0804 provides that a trustee administer the trust as a prudent person would, by
considering the purposes, terms, distribution requirements, and other circumstances of the trust.
The statute admonishes that in meeting this standard the trustee exercise reasonable care, skill,
and caution.
In re Estate of Feldstein
292 So. 2d 404 (Fla. 3d DCA 1974)
Rule: Fla. Stat. 736.0804 The trustee has a duty to the beneficiaries to invest and manage the
funds of the trust as a prudent investor would, in light of the purposes, terms, distribution
requirements, and other circumstances of the trust. This exercise requires reasonable care, skill,
and caution.
E. Duty to Incur Only Reasonable Expenses
Fla. Stat. 736.0805 provides that the trustee, in carrying out their duty of prudent investment
and administration, is to incur only expenses that are reasonable in relation to the trust property,
the purposes of the trust, and the skills of the trustee. (Dont overspend).
F. Duty to Use Special Skills
Fla. Stat. 736.0806 provides that if the trustee has special skills, or the trustee was selected on
the basis of representations of special skills or expertise, the trustee is under a duty to use those
skills.
G. Duty to Prudently Exercise Power to Delegate
Fla. Stat. 736.0807 provides that a trustee may delegate duties and powers that a prudent
trustee of comparable skills could properly delegate under the circumstances. However, the
trustee is required to exercise reasonable care, skill, and caution in selecting an agent and
establishing the scope and terms of the delegation.
Little River Bank & Trust Co. v. Peskin (In re Estate of Rosenthal)
189 So. 2d 507 (Fla. 3d DCA 1966)

Facts: Trustee delegated certain duties to an attorney who embezzled funds from the trust.
Issue(s): Whether an executor, who acts with due diligence and was not found to be negligent, is
responsible for the individual acts of his agent? Rule: If it is reasonably necessary for a trustee to
employ agents or attorneys, and if he uses ordinary care in their selection, and a proper
supervision over the business entrusted to them, he can not be liable for their indiscretion
resulting without fault on his part. A trustee is at fault if he directed or permitted the doing of an
act by his agent which, if done by the trustee, would constitute a breach of trust; or if he
improperly delegates to an agent the performance of acts which he was under a duty personally
to perform. He is also liable if he did not use reasonable care in the selection or retention of the
agent; or if he failed to exercise proper supervision over the conduct of the agent; or if he
unnecessarily entrusts money or securities of the trust or title deeds or other property to an agent,
or permits the agent unnecessarily to retain the property.
1. A trustee should not delegate acts that he or she would reasonably be expected to perform
personally. On the other hand, a decision not to delegate where appropriate may be deemed a
violation for failure to delegate.
2. Fla. Stat. 736.0807 codifies the requirement to select and carefully monitor an agent. The
trustee must clearly define the scope of the delegation and must periodically review its decisions
regarding its agents to ensure that the agents continue to be competent and worthy of the trustees
continued confidence with regard to the delegation. With regard to delegating investment
decisions, the trustee must review at least annually the investment policies and guidelines of the
trust, determine whether such guidelines continue to be appropriate, and make adjustments where
necessary.
H. Duty to Control and Protect Trust Property
Flagship Bank of Orlando v. Reinman, Harrell, Silberhorn, Moule & Graham, P.A.
503 So. 2d 913 (Fla. 5th DCA 1987)
Rule: All of the duties of a trustee of an express trust are not included in the trust agreement.
The duty that the law places on all citizens to use due care to prevent injury and damage to
others, which is embodied in the tort law of negligence, also applies to trustees. If the trustee
commits a breach of trust, he is chargeable with: (a) any loss of deprecation of value of the trust
estate resulting from the breach of trust; or (b) any profit made by him through the breach of the
trust; or (c) any profit which would have accrued to the trust estate if there had been no breach of
trust.
I. Duty to Inform and Account
Mesler v. Holly
318 So. 2d 530 (Fla. 2d DCA 1975)
Facts: The trust was to be used to maintain the womans standard of living. Rule: Even though a
grant of absolute discretion to a fiduciary is very broad, it does not relieve a trustee from the
exercise of good faith or from being judicious in his administration of the trust, which
administration is always subject to review by the court in appropriate instances. A trustee is
always subject to accountability to remaindermen where discretion is improperly, arbitrarily or
capriciously exercised.
Harris Trust Co. of Florida v. Davis

668 So. 2d 689 (Fla. 4th DCA 1996)

Issue(s): When can you stop going after a trustee (statute of limitations) Rule: Fla. Stat.
737.307 provides that unless previously barred by adjudication, consent, or limitations, an action
against a trustee for breach of trust is barred for any beneficiary who has received a final, annual,
or periodic account or other statement fully disclosing the matter unless a proceeding to assert
the claim is commenced within 6 months after receipt of the final, annual, or periodic account or
statement.
J. Duty to Not Commingle
A trustee has a duty not to commingle trust assets. This duty can be bifurcated into (1) the
absolute duty to not commingle trust assets with the trustees personal assets and (2) the duty to
not commingle a trusts assets with the assets of other trusts.
- Fla. Stat. 736.0810(4) allows and exception to the duty against commingling of trust assets
with the assets of other trusts. It allows a trustee to invest as a whole the property of two or
more separate trusts as long as the distinct interests are clearly indicated.
V. Liabilities
Internal liability- a trustee who violates any of the trustees duties can be held liable to the
beneficiaries.
External liability- the trustee may be liable in tort, contract, or personally to persons who are not
beneficiaries and to whom he owes no fiduciary responsibilities.
A. Liability to Beneficiaries
- A trustee may be liable to the trust beneficiaries for violating one or more of the duties whether
the violation was intentional or not.
- Fla. Stat. 736. 1001(1) provides that a violation by a trustee of a duty the trustee owes to a
beneficiary is a breach of trust. However, not every unfortunate outcome involves a violation,
i.e., investment downturn will not be held as a breach. Fla. Stat. 736.1003 provides that, absent
a breach, a trustee cannot be held liable for a loss or depreciation in the value of trust property or
for not having made a profit.
- The remedies for breach are provided in Fla. Stat. 736. 1001(2) and include, enjoining the
trustee from committing further breaches, ordering the trustee to account, removing the trustee,
and compelling the trustee to pay money or restore property. Fla. Stat. 736.1001(2)(j) punts the
remedies back to the court and allows the court to order any other appropriate relief.
Anton v. Anton
763 So. 2d 404 (Fla. 4th DCA 2000)
Issue(s): Whether a trustee, who is part of a trust containing several trustees, can commence a
civil action without the majority of the trustees consent? Rule: Co-trustees are obligated to
maintain an attitude of vigilant concern for the proper administration of the trust. Fla. Stat.
737.402(2)(z) gives trustees the power to prosecute actions for the protection of the trust assets.
Fla. Stat. 737.404(1) provides that any power vested in three or more trustees may be exercised
by a majority of them.

- Fla. Stat. 737.404(1) Any power vested in three or more trustees may be exercised by a
majority, but a trustee who has not joined in exercising a power is not liable to the beneficiaries
or to others for the consequences of the exercise, and a dissenting trustee is not liable for the
consequences of an act in which he or she joins at the direction of the majority of the trustees if
the dissenting trustee expressed his or her dissent in writing to any of his or her cotrustees at or
before the time of the joinder.
Aiello v. Hyland
793 So. 2d 1150 (Fla. 4th DCA 2001)
Issue(s): Whether the court has the power to remove a trustee? Rule: Fla. Stat. 737.201(1)(a)
unequivocally confers upon this Court the discretion and authority to remove a trustee where
appropriate.
- Fla. Stat. 736.1012 provides that a trustee is not liable to a beneficiary if the beneficiary
knowingly consented to or ratified the conduct constituting the breach.
B. Liability to Third Parties
- Fla. Stat. 736.1013(2) provides that a trustee is personally liable for torts committed in the
course of administering a trust or for obligations arising from ownership or control of trust
property only if the trustee is personally at fault. (i.e., not if one of their agents is at fault).
Personally liable means the trustee actually spilled the water on the floor.
- Trustees may also face claims regarding contracts entered into on behalf of the trust.
- Fla. Stat. 736.1013(1) provides that if the trustee in the contract discloses the fiduciary
capacity, a trustee is not personally liable on a contract entered into by the trustee in such a
fiduciary capacity. (The trustee lets the person know that they are entering into the contract as a
trustee and not as an individual).
Hastings Potato Growers Assn v. Pomar
296 So. 2d 55 (Fla. 1st DCA 1974)
Facts: The court invalidated a mortgage entered into by the trustee. Issue(s): Whether the court
can limit the discretion of a trustee who was given absolute discretion by the terms of the trust?
Rule: Fla. Stat. 737.02 gives the Circuit Courts jurisdiction of continuing supervision over the
administration of testamentary trusts. Thus, no matter how broad the language of the creating
instrument may be, the courts will exercise such continuing jurisdiction to preserve trust property
or funds and prevent their mishandling.
- Fla. Stat. 737.17 provides that when a trustee has demonstrated his or her inability to manage
and preserve the trust estate, the courts have authority to restrict the power of the trustee.
Fla. Stat. 736.1016 protects third parties who deal with trustees. Fla. Stat. 736.1016(2)
provides that a person other than a beneficiary who in good faith deals with a trustee is not
required to inquire into the extent of the trustees powers or the propriety of their exercise.
Chapter 29. Constructive Trusts and Resulting Trusts.
III. Distinguishing Constructive and Resulting Trusts from Express Trusts

- Constructive and Resulting trusts are different from Express trusts because they do not require
the manifestation of trust intent.
- A resulting trust arises from a legally inferred intent, not a manifested intent. In the creation of a
resulting trust it is essential that the parties actually intend to create the trust relationship but
failed to execute documents or establish adequate evidence of the intent.
- A constructive trust is not based on a legally inferred intent. Generally, it is a remedy imposed
when a court determines that (1) the transferee would be unjustly enriched if allowed to retain
the property, and (2) the transfer occurred because of a confidential relationship or some type of
fraud, duress, or other wrong.
IV. Constructive Trusts
When a person acquires title to property through the influence of a confidential relationship or
otherwise obtains and advantage which he should not in good conscience be permitted to retain,
a court of equity will prevent the abuse of the confidence and grant relief on the broad principle
that one should not be permitted to be unjustly enriched under such circumstances at the expense
of another.
Mayer v. Ciancolo
Rule: Where there is a confidential relation, a transaction induced by the relation, and a breach
of the confidence reposed, a constructive trust may arise even in the absence of fraud. A
beneficiary under a constructive trust is entitled to have his original interest restored, and to be
re-established in his title. (There doesnt have to be malicious intent behind the breach, it can be
a mistake).
Allen v. Dalk
826 So. 2d 245 (Fla. 2002)
Issue(s): May a constructive trust be imposed over the assets of an estate in favor of a
beneficiary named in an invalidly executed will, where the invalidity is the result of a mistake in
its execution, and the invalid will expresses the clear intention of the decedent to dispose of her
assets in the manner expressed therein? Rule: Creating a constructive trust for a will that has not
been validly executed will go against public policy and the reasons behind implementing the
statutory requirements.
Holmes v. Holmes
463 So. 2d 578 (Fla. 1st DCA 1985)
Issue(s): Whether a constructive trust should be implemented where the person against whom the
trust is sought to be imposed has not breached a confidential relationship with the person whom
the assets have been acquired? Rule: A constructive trust is a relationship adjudicated to exist by
a court of equity based on particular factual situations created by one or the other of the parties.
The trust is constructed by equity to prevent an unjust enrichment of one person at the expense
of another as the result of fraud, undue influence, abuse of confidence or mistake in the
transaction that originates the problem. Thus absent an abuse of a confidential relationship, a
constructive trust may be created where there was a mistake in the transaction that originates the
problem. (In this case it was the decedents mistake in not purchasing a life insurance policy in
himself for the benefit of his daughter).

City National Bank of Miami v General Coffee Corp. (In re General Coffee Corp.)
828 F.2d 699 (11th Cir. 1987)
Issue(s): When does a constructive trust come into existence? Rule: A constructive trust arises
when the facts giving rise to the fraud occur.
V. Resulting Trusts
- A resulting trust arises from a legally inferred intent, not a manifested intent. In the creation of a
resulting trust it is essential that the parties actually intend to create the trust relationship but fail
to execute documents or establish adequate evidence of the intent.
- Resulting trust arises in two circumstances: (1) in the context of an express trust and (2) in the
context of a purchase of property (purchase money resulting trust).
- The first type of resulting trust requires a corresponding express trust which has failed or an
express trust that did not completely dispose of the trust assets. (i.e., the trust can fail if the
purpose of the trust has become illegal). The trustee in these cases is not entitled to keep the
assets. Rather, the beneficial interest reverts back to the settlor or the settlors successors in
interest. In all of these cases, there is a legally inferred intent that if the settlor had contemplated
these results she would have intended the property to revert. This type of resulting trust is
described as simply an equitable reversionary interest implied by law, with the resulting trust
terminology ordinarily being applied if and when the reversionary interest materializes as a
present interest.
- The second type of resulting trust is referred to as a purchase money resulting trust. It can arise
when the purchase price of property is paid by one person but title is taken by another. In those
circumstances, the law generally presumes that the parties must have intended that the person
holding title is holding it in trust for the person who paid the purchase price. The presumption of
resulting trust in these cases can, however, be rebutted. The closer the relationship between the
two parties (i.e., father and son) the more of a presumption that what transpired was not a
purchase money resulting trust. In that situation, the burden would be on the purchaser to prove
that the transaction was a purchase money resulting trust.
Key v. Trattmann
959 So. 2d 339 (Fla. 1st DCA 2007)
Issue(s): Whether a resulting trust is barred by the statute of frauds or the statute of limitations?
Rule: A resulting trust can be founded on the presumed intentions of the parties that the one
furnishing the money should have the beneficial interest, while the other held the title for
convenience or for a collateral purpose. The complaining party must have paid his share of the
purchase price, or bound himself to the grantor by an absolute obligation to pay it. There must
be more than a privilege reserved in the person claiming the trust relationship to pay or not to
pay at his election. There must be a debt which the grantee can enforce. The statute of frauds
does not apply to resulting trusts.
- The reason a purchaser chooses to have another take title to property may affect the equities of
whether a resulting trust will arise. If the transfer is made to accomplish an unlawful purpose, the
trust considers the policy against unjust enrichment and the policy against giving relief to a
person who has entered into an illegal transaction to see which outweighs the other.
Chapter 31. Documents Related To Wills and Trusts

III. Durable Power of Attorney

A. Durability and Formalities
- A durable power of attorney authorizes another person to act for an individual, as long as that
individual is alive, and even if that individual becomes incapacitated. A power of attorney must
be (1) in writing, and (2) executed with the formalities required for the conveyance of real
property (i.e., signed by the principal and two witnesses and notarized to be recorded). In
addition, a durable power of attorney must also contain the following or similar words: This
durable power of attorney is not terminated by subsequent incapacity of the principal as provided
in chapter 709, Florida Statutes. (if you want the power of attorney to last beyond the principals
incapacity)
- Principal- is the person who creates the power of attorney
- Agent/Attorney in fact- is the person authorized to act for the principal. Fla. Stat. 709.2105
provides that any competent individual who is at least 18 years old can serve as an agent.
B. When Power Commences
- Fla. Stat. 709.2108(1) provides that an agent under a durable power of attorney is authorized
to act as of the time the power of attorney is executed. Even if the principal is still competent.
C. Powers, Duties, and Liabilities of Agent
1. Power and Property Subject to Powers
- Unless otherwise provided by applicable law, the agent has only those powers expressly
granted in the document and the authority reasonably necessary to give effect to that express
grant of specific authority.
- Fla. Stat. 709.2201(1) provides that general language does not grant any authority to the agent
(i.e., all acts). Thus, counsel should assure that each power is expressly set forth in the durable
power.
- *Look at Pg 693 to check out examples.
- Fla. Stat. 709.2201(3) specifies the powers an agent may not be granted, preventing the agent
from: (1) performing duties under a contract requiring the principals personal services (2)
making an affidavit as to matter requiring the principals personal knowledge; (3) voting on
behalf of the principal in a public election; (4) executing or revoking a will or codicil for the
principal; and (5) exercising powers that the principal holds as trustee or court-appointed
fiduciary.
Gurfinkel v. Josi
972 So. 2d 927 (Fla. 3d DCA 2007)
Issue(s): Whether an agent, acting under the authority of a durable power of attorney, may
revoke or amend the principals trust, absent a provision set forth in the trust or durable power of
attorney instrument. Rule: Unless the principal expresses a clear intent that an agent have the
ability to revoke or amend the trust, either in the trust document or in a provision of the durable
power of attorney, such agent will not have the power to revoke or amend the trust, even if the
principal is incapacitated.
2. Duties and Liabilities
- Duties owed by an agent include the duty of good faith, the duty of loyalty, and the duty to act
for the principals benefit rather than the agents personal gain.

- If the principal is mentally competent, the agent owes a duty to disclose material facts to the
principal. Material facts include all facts and circumstances that may make the agents interests
adverse to those of the principal or that may affect the principal in any way. A fact is material if
it is one which would be likely to affect the judgment of the principal in consenting to a
particular transaction on the terms and conditions proposed.
- Fla. Stat. 709.2117 provides that once and agent agrees to serve, he is liable to the principal
for breaches of fiduciary duties to the principal.
- Fla. Stat. 709.2111 provides that if multiple persons are serving together as agents, each coagent must carefully meet her fiduciary duties.
Krevatas v. Wright
518 So. 2d 435 (Fla. 1st DCA 1998)
Rule: When acting under her authority given through a durable power of attorney, the agent will
not abuse the confidence of the principal and use her power for her benefit.
D. Termination of Power
- Fla. Stat. 709.2109 provides that a durable power remains in force, despite the incapacity of
the principal, until a terminating event occurs. Terminating events include revocation of the
power by the principal and death of the principal.
- However, if the principal is determined to be incompetent after the durable power of attorney is
put into effect the power may temporarily cease until the court determines if the agent should
remain as guardian. Fla. Stat. 709.2109 provides that if the power allows the agent to make
any health care decisions, these powers can be exercised even though a petition is pending to
determine whether the principal is incapacitated.
2. Fla. Stat. 709.2202(2) restricts an agents power to make gifts. An agent may subject himself
to personal liability if he exceeds his authority.
3. Fla. Stat. 744.3045 provides that a competent adult may indicate the person she would
desire to serve as her guardian should the need arise by signing a written declaration naming a
preneed guardian.
5. Fla. Stat. 709.2106(4) allows for a deployment-contingent power of attorney. This type of
power of attorney allows a person in the military to execute a power of attorney that will not
become effective until the principal is deployed.
IV. Designation of Health Care Surrogate
A. Purpose of Designation
- Fla. Stat. 709.2201(2)(c) provides that a principal may grant the agent authority to make
health care decisions for the principal within the durable power of attorney.
- Fla. Stat. 765.202 provides that individuals may grant another person the power to make
health care decisions for them in a separate document, known as a designation of health care
surrogate. Fla. Stat. 765.204(3) provides that a designation of health care surrogate operates
only when the principal is unable to make his own health care decisions or provide informed
consent to medical treatment.
- Principal- is the person granting the power
- Surrogate- is the person acquitting the right to make the decisions.

B. Creation of Designation of Health Care Surrogate

- A designation to health care surrogate must be in writing.
- The principal must sign the document. If he is physically unable to sign, then he may have
someone do it by proxy, however the proxy must do it in the presence of the principal and two
witnesses. Two adult persons must witness the principal signing the designation, and both
witnesses must be sign the designation. A person who is named a surrogate in the designation
may not be one of the witnesses signing the document. In addition, at least one of the
subscribing witness must be a person other than the principals spouse or blood relative.
C. When Power Commences
- A surrogates authority to make health care decisions commences only when the principal lacks
capacity to do so. For this purpose, a patient lacks capacity or is incompetent when he is not
physically and mentally capable of both making and communicating informed decisions about
health care he does or does not desire.
- The surrogate can make decisions in regards to broad number of procedures (Pg 701). The
surrogate also has access to the patients medical records so that the surrogate can make an
informed decision.
- Informed consent is defined as consent voluntarily given by a person after a sufficient
explanation and disclosure of the subject matter involved to enable that person to have a general
understanding of the treatment or procedure and the medically acceptable alternatives, including
the substantial risks and hazards inherent in the proposed treatment or procedures, and to make a
knowing health care decision without coercion or undue influence.
- A patients lack of capacity can be determined through a court determination or by the
determination of a physician.
D. Rights and Responsibilities of Surrogate
- Fla. Stat. 765.205 provides that a surrogate has the power to make all health care decisions
for the principal, consistent with the principals wishes. In addition, Fla. Stat. 765.204(3)
provides that before making any decisions, any surrogate who is not the principals spouse must
inform the principals spouse and adult children of the fact that the individual is the principals
surrogate.
- To make appropriate health care decisions for the principal, the surrogate must act in
accordance with the principals known wishes. If the patients wishes are not known, the
surrogate may be required to act in the best interests of the principal.
- Fla. Stat. 765.105 provides for court scrutiny of the surrogates actions or proposed decisions.
Court scrutiny may be requested by any person who could be affected by the surrogates
decisions. Interested persons include family members, the medical facility where a patient
receives treatment and the patients attending physician. Any interested person may seek
expedited judicial intervention to prevent a surrogate from acting.
E. Termination of Authority
- Fla. Stat. 765.204(3) provides that the surrogates authority terminates when the principals
attending physician determines that the principal regained his capacity or if the principal revokes
the designation.
- The revocation or amendment to a designation may be accomplished by a signed and dated
writing or by physical cancellation.

- If a principal named his or her spouse as a surrogate, then, unless the designation expressly
states to the contrary, annulment or dissolution of the marriage revokes the surrogates authority.
V. Living Will
A. Purpose and Creation of Living Will
- Any person has the right to refuse medical treatment. Even children and those who are deemed
to be incompetent.
- A living will expresses the principals wishes concerning use of life-prolonging procedures.
- Fla. Stat. 765.302 provides that a living will must be signed by the principal in the presence
of two subscribing witnesses and that at least one of the witnesses must not be the principals
spouse or blood relative.
- Once the living will is signed, the principal must notify his or her treating physician that it
exists. If the principal in unable to do so, any person may attend to this task.
Satz v. Perlmutter
362 So. 2d 160 (Fla. 4th DCA 1978)
Issue(s): Whether a competent adult patient, with no minor dependents, suffering from a terminal
illness has the constitutional right to refuse or discontinue extraordinary medical treatment where
all affected family members consent? Rule: A persons right to refuse medical treatment must be
weighed against the States: (1) interest in the preservation of life, (2) need to protect innocent
third parties, (3) duty to prevent suicide, (4) Requirement that it help maintain the ethical
integrity of medical practice.
Satz v. Perlmutter
379 So. 2d 359 (Fla. 1980)
Issue(s): When can a patient refuse medical treatment, when lack of treatment will ultimately
lead to that patients death? Rule: Each case of refusal of medical treatment must be examined
individually and the court must make its rulings on a case by case basis.
John F. Kennedy Memorial Hospital, Inc. v. Bludworth
452 So. 2d 921 (Fla. 1984)
Rule: Even without a living will, the family of a terminally ill and incompetent patient may
make the decision to terminate life support if the doctor certifies that the patient is in a primitive
vegetative state, they are only being sustained through life support, and there is relatively no
chance that they will recover. (Doctrine of Substitutive Judgment).