PROBATE CORNER
DAVID M . GARTEN
Reviving A Void Testamentary Devise Through Incorporation By Reference
PREREQUISITES : There are three prerequisites to incorporating a trust into a will : ( 1 ) the trust must be in existence when the will is executed ; ( 2 ) the will must manifest an intent to incorporate the trust ; and ( 3 ) the will must describe the trust sufficiently to permit its identification . See § 732.512 ( 1 ), F . S . ( Incorporation by reference ). Once the trust is incorporated into the will by reference , it is made an integral part of the will and is construed along with the will .
INCORPORATION ALLOWED : In the following cases , the courts found that the operative provision of the will was sufficient to incorporate the trust into the will :
In Pasquale v . Loving , 82 So . 3d 1205 ( Fla . 4th DCA 2012 ), the operative provision of the will reads : “ I give all the residue of my estate , including my homestead , to the Trustee then serving under my revocable Trust Agreement dated October 26 , 1999 , as amended or hereafter amended ( the " Existing Trust "), as Trustee without bond , but I do not exercise any powers of appointment held by me except as provided in the later paragraph titled " Death Costs ." The residue shall be added to and become a part of the Existing Trust , and shall be held under the provisions of said Agreement in effect at my death , or if this is not permitted by applicable law or the Existing Trust is not then in existence , under the provisions of said Agreement as existing today . If necessary to give effect to this gift , but not otherwise , said Agreement as existing today is incorporated herein by reference .”
In Estate of Baer , 446 So . 2d 1128 ( Fla . 4th DCA 1984 ), the will was admitted to probate that contained a pour-over provision in favor of a trust created at the same time . Prior to the testator ’ s death , this trust was revoked , evidently because the testator felt well enough to manage his own affairs . If the pour-over failed , intestacy would occur , and the property would pass to the testator ’ s siblings , persons that he did not want to get his property . To avoid such a result , the court held that although the inter vivos trust was revoked , a testamentary trust was created by incorporation by reference . The court stated that “[ a ] ll of the circumstances surrounding the revocation of the trust point to incorporation of its dispositive provisions into the will by reference , notwithstanding the loss of force of the trust instrument standing alone ” citing § 732.512 ( 1 ), F . S . The court concluded , based on the facts , that there had been incorporation of the " dispositive provisions " of the trust into the will by reference .
In Estate of Potter , 469 So . 2d 957 ( Fla . 4th DCA 1985 ), the will provided , in part , that in the event that the testator ’ s husband did not survive her , she bequeathed her residence together with all household goods contained therein to her daughter , if she shall survive her . Contemporaneous with the execution of her will , the testator executed an amendment to her preexisting inter vivos trust which amendment provided that in the event her daughter received her residence under the terms of the will , then the trustee shall thereupon pay over to testator ' s son an equivalent amount out of the trust assets before its division into the two trusts for testator ' s son and daughter free of the trust . In addition , the will provided that any property specifically bequeathed would pass free of administrative expenses and any liability for estate and inheritance taxes and authorized the executor , if necessary , to request sums to be paid from the trust to the estate to pay debts , administration expenses , taxes , etc . The trust also provided for the trust to pay those expenses of the estate . To summarize , the testator , via her will , wanted her daughter to have the residence , free and clear , and , via her inter vivos trust , wanted her son to have a sum in cash equivalent to the value of the residence received by her daughter .
In Sun Bank Miami v . Hogarth , 536 So . 2d 263 ( Fla . 3d DCA 1988 ), the will and trust at issue were executed the same day . The court found that the trust was specifically referred to in the will as a pour-over trust for the residuary of the testator ’ s estate . The pour-over trust was an integral part of the will ; without it , the will does nothing more than appoint a personal representative and exercise the power of appointment under the testator ’ s husband ' s trust , a result not likely to have met the testator ’ s intent .
The court held that both the will and the amended trust agreement must be read together to give effect to the testator ’ s testamentary plan .
In Miller v . First Nat ' l Bank & Trust Co ., 1981 OK 133 ; 637 P . 2d 75 ( OK 1981 ), the court found that the “ Decedent ' s will clearly identifies the trust . The trust was in existence when the will was executed . The reference exhibits decedent ' s intention that the trust operate with his will to dispose of his property . He signed the will and the trust contemporaneously , indicating one instrument and a scheme of testamentary disposition . Article II of the will gave Frances only those things to which she would have been statutorily entitled . The remainder of the will is directed to the trust . The will without the trust has no meaning or value to the decedent ' s estate plan .”
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In Memoriam
John A . Foley 1960- 2021
PBCBA BAR BULLETIN 25