♠ Posted by Marc J. Soss at Monday, October 20, 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.
