Once again a recent court case reminds us how important it is to have up-to-date and very clear estate planning documents. A case out of Broward County could have happened anywhere in Florida. The Broward County Court decided a case wherein a lady created a trust. Pursuant to the terms of the trust if the settlor wanted to change or revoke the trust after she had been adjudicated incapacitated she would either need to be restored by the court or provide letters from two “licensed physicians” indicating that she was competent. As chance would have it, the settlor was later adjudicated incompetent due to her deteriorating mental health state. However she then wanted to amend her trust to change the amount the beneficiaries would receive under the trust. She obtained a letter of capacity from a licensed physician who had met with her many times. She obtained a second letter from a nursing home administrator with expert experience and medical schooling-but without a physician’s license.
The court would not allow the amendment. The letter from the nursing home administrator was not good enough. The trust unambiguously stated what the requirements are for allowing her to amend after incapacity. It required two letters from “licensed physicians”. The court refused to change what was clearly required in the instrument. She did not meet her own requirements to restore capacity and therefore the court did not uphold the amendment. Her ability to amend her own trust would have been different if she had used different language. It is important when creating estate instruments to use language that will clearly express the goals you wish to achieve. If you need help creating or updating estate documents please feel free to contact the experienced attorneys at Chepenik Trushin to help. If you are living in the West Palm Beach, Broward, Miami-Dade area you can reach us at 305.981.8889 or 866.626.9898.
Jervis v. Tucker, 4th DCA (2012)