PROBATE CORNER
Application of the Probate & Trust Codes to Testamentary Trusts ( continued )
DAVID M . GARTEN
In Gundlach v . Gundlach , 2022 Fla . App . LEXIS 3570 ( Fla . 4th DCA March 25 , 2022 ), The decedent ’ s will named his two sons , William (“ appellant ”) and Jon , as copersonal representatives of his estate and Jon as the trustee of a testamentary trust . The testamentary trust contained a provision that appellant no longer be married in order to receive an outright bequest . Appellant filed an Amended Petition for Construction and Declaration of Rights (“ petition ”) in the estate seeking , in relevant part , construction and a declaration of rights under the testamentary trust . Appellees moved to strike the petition arguing that while the petition included reference to construction of provisions of the Trust , the crux of the petition sought to declare specific provisions of the will invalid and was therefore untimely pursuant to § 733.212 ( 3 ) because it was not filed within three months of appellant ’ s receipt of the notice of administration . The trial court dismissed the petition with prejudice as untimely . The appellate court reversed and remanded for further proceedings . The court held that the trial court order was improper because appellant ’ s challenge to " all or part of the testamentary trust " created by the will did not amount to a challenge to the " validity of the will ". The court reasoned : “ Applying our analysis in Tendler [ Tendler v . Johnson , 332 So . 3d 521 ( Fla . 4th DCA 2021 )], appellant ' s petition in this case likewise did not challenge the " validity of the will " within the meaning of section 733.212 ( 3 ). As discussed above , appellant ' s petition sought ( 1 ) a determination as to the validity of all or part of the testamentary trust ; ( 2 ) construction of the testamentary trust ; and ( 3 ) a declaration of rights under the testamentary trust pursuant to section 736.0201 ( 4 )( a ), ( e ) - ( f ), Florida Statutes ( 2021 ). Appellant ' s petition challenged the effectiveness of the provision of the will concerning the condition regarding his marriage . However , pursuant to Tendler , such a challenge in appellant ' s petition to " all or part of the testamentary trust " created
by the will did not amount to a challenge to the " validity of the will " as used in section 733.212 ( 3 ), which Tendler explains refers to the technical requirements for a will to be probated . As such , guided by the analysis in Tendler , we hold that section 733.212 ( 3 ) does not bar appellant ' s petition . Accordingly , the probate court erred in dismissing appellant ' s petition as untimely under section 733.212 ( 3 ).”
In Estate of Herskowitz , 338 So . 2d 210 ( Fla . 3rd DCA 1976 ), the decedent left an estate in excess of $ 500,000 willed to a testamentary trust for the benefit of his minor sons . The will was admitted to probate and Sam Smith , Esq . was appointed guardian ad litem for the boys . Smith filed a petition asking the probate court to require qualification of the trustee and / or funding of the trust to require the trustee to make reasonable support payments for the boys on the ground that the trust is a support trust necessitating the payment of such funds by the trustee . The PR / trustee filed objections alleging that the will grants sole and absolute discretion in him as trustee for the payment of trust funds and this exercise of discretion is beyond the jurisdiction of the court . The trial court granted the petition . On appeal , the PR / Trustee argued that the court lacked jurisdiction to require him , as PR , to make a partial monetary distribution from the estate to the trust and then require him , as trustee , to make support payments where the trust had not come into being , was not funded and was not registered or had come into being under Florida law [ Ch . 737 ]. The appellate court affirmed holding that : ( 1 ) the court had jurisdiction to construe the trust instruments and order support payments pursuant to § 737.201 ( 1 )( c ), F . S .; ( 2 ) by filing a notice of intention of service as trustee and objections to the petition for partial distribution and by appearing at the final hearing , the PR / Trustee submitted himself to the jurisdiction of the court ; ( 3 ) a valid trust was established ; and ( 4 ) the
PALMBEACHBAR . ORG 18 registration provision of § 737.101 is not mandatory and was waived .
In Lumbert v . Estate of Carter , 867 So . 2d 1175 ( Fla . 5th DCA 2004 ), the decedent ’ s will set up a testamentary trust to distribute the assets of the estate . The decedent ’ s daughter , Lisa , was to receive distributions as she attained benchmark ages : onethird at age 35 ; one-half of the balance at age 40 ; and the remainder at age 45 . In the event that Lisa did not survive to those ages , and if she did not exercise a power of appointment given to her under the testamentary trust ( which she did not ) the balance of the trust was to be distributed per stirpes to her lineal descendants and failing that to the deceased ' s brothers and sister . Lisa was appointed to serve as the personal representative after her mother died . Lisa died 14 months later at the age of 41 . At that time , due to a delay in the administration of the estate , Lisa had only received a $ 30,000.00 distribution from the trust ; the balance of $ 1.5M was in the process of being administered . The trial court ruled that Lisa ’ s estate was only entitled to $ 30,000.00 . The appellate court reversed and remanded for further proceedings . The court , citing § 732.514 , F . S ., held that the provisions of the testamentary trust clearly mandated that Lisa ' s proportional shares of the trust corpus vested instantly upon her attaining the designated ages . Since at the time Lisa died she was not yet 45 , only the remaining approximately one-third of the trust assets to which she was not entitled to have distributed were to be distributed to the deceased ' s brothers and sister .