♠ Posted by Marc J. 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.
