Florida Estate Planning and Probate Law Blog focused on recent case law and planning ideas.

CAN I AMEND MY REVOCABLE TRUST WITH A NON-TESTAMENTARY DIRECTIVE

♠ Posted by Marc Soss at Thursday, October 23, 2014
The recent 3rd District Court of Appeals case of Kritchman v. Wolk, Nos. 3D12-2977, 3D12-2457, has reinforced, under Florida law, a cause of action against the trustee(s) of a Revocable Trust for breach of Trust and the potential for the settlor to amend their trust without compliance with Section 736.0405(2)(b) of the Florida Statutes. The case evolved from a correspondence (the “Note”) the Settlor of a Revocable Trust’s had written to the co-trustee during her lifetime. The Note did not comply with the requirements of Section 736.0405(2)(b) of the Florida Statutes (which requires that all testamentary directives in wills and trusts be in writing and witnessed) but advised the co-trustee that the Settlor had been paying for her first cousin’s grandson’s (the “grandson”) private school and college education expenses for seven years and that she wanted her Trust to continue to pay for his remaining college education expenses.
 
Shortly thereafter, the Settlor passed away. Upon her death, the Settlor’s son became a successor individual co-trustee of the Trust. Consistent with the terms of the Note, the successor corporate co-trustee paid the grandson’s educational expenses for the fall semester, but thereafter refused to make any educational payments on his behalf.  The grandson then sued the successor co-trustees for breach of written and oral contracts, promissory estoppel, and breach of trust. On appeal, the 3rd DCA affirmed the trial court order which found that the failure of the successor co-trustees to carry out the terms of the Note violated multiple sections of the Florida Statutes and these breaches of duty establish the liability of the successor co-trustees for a breach of trust.