Third DCA: First Impression Case on Revocation of Trust Under Florida Statutes 736.0602(3)

Florida’s Third District Court of Appeal issued Bernal, as Personal Representative of the Estate of Zintgraff v. Marin, holding that a will met the high standard for revocation of a prior trust under the “clear and convincing evidence” standard even though the will did not name the trust specifically and the trust did not have a revocation clause.  This was a case of first impression under F.S. 736.0602(3).

Under F.S. 736.0602(3), Revocation or Amendment of Revocable Trust, a trust can be revoked in the follow ways: (a) follow the trust’s stated mechanism for revocation or, if there are no such terms, then either (b) a later will or codicil which expressly refers to the trust it is revoking; or (c) any other method manifesting clear and convincing evidence of the settlor’s intent.

It is that last method which was the subject of this Bernal case.

The will simply stated it was revoking “all other wills, trust, and codicils previously made by me.”  The court relied upon the will, testimony of the lawyer who wrote the will, and testimony of a family friend regarding the decedent’s intent.

Notably, the court stated that the statute lowers the standard of proof if the trust’s mechanism is followed and/or the will or codicil specifically references the trust.  On the other hand, the statute raises the standard of proof (clear and convincing evidence) if “any other method” has to be used to show the settlor’s intent.


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