PROBATE CORNER
DAVID M . GARTEN
Reviving A Void Testamentary Devise Through Incorporation By Reference ( Continued )
In Tyson v . Henry , 133 N . C . App . 415 ; 514 S . E . 2d 564 ( NC App . 1999 ), the court held that the following evidence showed that the will " clearly and distinctly " referred to the void trust agreement ( the trust was never funded ), providing assurance that the decedent intended that the trust agreement be incorporated in the will : ( a ) the will stated , " I bequeath and devise all tract or parcels of land which I own at the time of my death to VANCE B . TAYLOR , as Trustee under the provisions of a certain Trust Agreement executed on the __ day of April , 1996 , by me as the Grantor and VANCE B . TAYLOR as the Trustee therein designated [.]"; ( b ) the trust agreement admitted into evidence was dated the same date that the will was executed ; ( c ) Tyson was the grantor and Taylor was the designated trustee of the document ; ( d ) the will specifically refers to a trust agreement executed in April of 1996 . There was no evidence in the record that any other trust agreement was created by Tyson , with Taylor as the designated trustee , in April of 1996 ; and ( e ) the will clearly expressed an intent on the part of the grantor to make the trust agreement part of his will . The purported trust was incorporated in the will by reference and made an integral part of the will . “ By said incorporation , it makes no difference whether the purported trust was legally valid .”
In Hageman v . Cleveland Trust Co ., 45 Ohio St . 2d 178 ; 343 N . E . 2d 121 ( OH 1976 ), the court held that if the will is valid , then so is the ( void ) trust incorporated by reference into the will .
Martin , 687 So . 2d 903 ( Fla . 4th DCA 1997 ) ( the will and trust were executed two years apart . Two references in the will to testator ’ s inter vivos trust , one providing for estate ’ s residue to pour over into trust and another providing for estate taxes to be paid from trust assets , were insufficient to incorporate trust into will ); and Bravo v .
Sauter , 727 So . 2d 1103 ( Fla . 4th DCA 1999 ) ( where the will manifested an intention to incorporate the terms of the trust into the will only if the trust were no longer in existence at the time of the testator ' s death , was insufficient to incorporate trust into will ).
PRACTITIONER ’ S CORNER : You should consider the following issues when litigating incorporation by reference : ( a ) whether the trust was in existence when the will was executed ; ( b ) whether the will manifests an intent to incorporate the trust ( a unified estate plan ); ( c ) whether the will describes the trust sufficiently to permit its identification ; ( d ) whether the will and trust were executed contemporaneously ( evidence of a unified estate plan ); ( e ) avoid intestacy . Intestacy is not favored over a disposition where construction leads to a valid testamentary disposition . See Wehrheim v . Golden Pond Assisted Living
Facility , 905 So . 2d 1002 , fn6 ( Fla . 5th DCA 2005 ) and the cases cited therein ; and ( f ) if there is ambiguity as to the identification of the trust referenced in the will , look to other documents and testimony to determine whether the trust is the document to which the will refers . See Estate of McGahee , 550 So . 2d 83 ( Fla . 1st DCA 1989 ). bullion or coins kept and acquired for their historical , artistic , collectable , or investment value apart from their normal use as legal tender for payment , are tangible personal property . ( 2 ) This section is intended to clarify existing law and applies retroactively to all written instruments executed before , on , or after July 1 , 2020 , as well as all proceedings pending or commenced before , on , or after July 1 , 2020 , in which the disposition of precious metals in any tangible form has not been finally determined . History .— s . 1 , ch . 2020-67 .
* The Bar Bulletin ( February 2021 ) Probate Corner article is improperly titled “ Limitations On a Trustee ’ s Absolute Discretion ”. The title to the article should read “ Disputes Over Disposition of Decedent ’ s Remains ”.
INCORPORATION NOT ALLOWED : In the following cases , the courts found that the operative provision of the will was not sufficient to incorporate the trust into the will : Flinn v . Van Devere , 502 So . 2d 454 ( Fla . 3d DCA 1986 ) ( mere reference in will without manifestation of intent to incorporate insufficient ); Lewis v . SunTrust Bank , Miami , N . A ., 698 So . 2d 1276 ( Fla . 3d DCA 1997 ) ( the decedent ' s appointment of an individual as personal representative and trustee in her will , without more , was insufficient to manifest the decedent ' s intent to substitute that individual as the trustee of her inter vivos trust ); Martin v .
CORRECTIONS TO PREVIOUS ARTICLES
* The Bar Bulletin ( December 2020 ) Probate Corner article entitled “ What Property Can Be Distributed Under A Separate Writing ”, improperly states that in Florida , it is undecided whether bullion or coins that are not commonly used as currency may constitute tangible personal property . Refer to § 731.1065 , F . S . entitled “ Precious metals ”: which reads : ( 1 ) For the purposes of the code , precious metals in any tangible form , such as
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