CopyCited 28 times | Published | Supreme Court of Florida | 1993 WL 15589
...Eaton of Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A., Miami, for respondent. McDONALD, Justice. We have for review Alter v. Zuckerman,
585 So.2d 303, 311 (Fla. 3d DCA 1991), in which the district court certified the following question to be of great public importance: *662 WHETHER PARAGRAPH
689.075(1)(g), FLORIDA STATUTES (1989), CREATES A SINGLE TEST, OR TWO ALTERNATIVE TESTS, FOR THE VALIDITY OF AN INTER VIVOS TRUST EXECUTED ON OR AFTER JULY 1, 1969, WHERE THE SETTLOR IS THE SOLE TRUSTEE? We have jurisdiction pursuant to article V, section 3(b)(4), Florida Constitution. We approve the district court's decision and hold that subsection
689.075(1)(g) creates two alternative tests, not a single test, to determine the validity of an inter vivos trust of which the settlor is the sole trustee....
...As a result, the trust assets were held to pass through the residuary clause of the will as part of Kahn's probate estate. The district court reversed and remanded, holding Kahn's inter vivos trust valid because it complied with the formalities of subsection 689.075(1)(g), which creates two alternative tests, not a single test, to determine the validity of an inter vivos trust of which the settlor is the sole trustee....
...es for an inter vivos trust; the alternative test requires that such a trust instrument be executed in accordance with the formalities required for the execution of wills. The court denied rehearing and certified the above question to this Court. Subsection 689.075(1)(g) provides: (1) A trust which is otherwise valid, including, but not limited to, a trust the principal of which is composed of real property, intangible personal property, tangible personal property, the possible expectancy of receiving as a named beneficiary *663 death benefits as described in s....
...he trust instrument is executed it is either valid under the laws of the jurisdiction in which it is executed or it is executed in accordance with the formalities for the execution of wills required in such jurisdiction. (Emphasis added.) Whether subsection 689.075(1)(g) applies to Kahn's written inter vivos trust depends upon a threshold determination that the trust is "otherwise valid." In Florida, formalities for the conveyance of real property are similar to will execution formalities....
...Lewis,
187 So.2d 684 (Fla. 3d DCA 1966). Kahn's written inter vivos trust of personal property employs words sufficient to create a trust and is therefore "otherwise valid" under Florida law. As such, Kahn's trust satisfies the threshold requirement of subsection
689.075(1)(g) and falls within the scope of the statute. Once within the scope of the subsection
689.075(1)(g), the validity of Kahn's inter vivos trust turns upon whether it is " either valid under the laws of the jurisdiction in which it is executed or it is executed in accordance with the formalities for the execution of wills required in such jurisdiction." (Emphasis added)....
...If the language of a statute is clear and unambiguous, the legislative intent must be derived from the words used without involving rules of construction or speculating as to what the legislature intended. Tropical Coach Line, Inc. v. Carter,
121 So.2d 779 (Fla. 1960). The plain language of subsection
689.075(1)(g), especially the disjunctive effect of the words "either" and "or," unequivocally establishes two alternative tests, not a single test, to determine the validity of an inter vivos trust of which the settlor is the sole trustee. As such, we reject Zuckerman's contention that the two alternative tests set forth by subsection
689.075(1)(g) should be read coterminously to establish a single test that requires compliance with the formalities for the execution of wills. The plain language of subsection
689.075(1)(g) provides an alternate test to determine the validity of inter vivos trusts of which the settlor is the sole trustee; namely, that the trust be valid under the laws of the jurisdiction in which it was executed. As previously discussed, Kahn's written inter vivos trust of personal property employs language sufficient to create a trust and is therefore valid under Florida law. Such a determination necessarily validates the trust under subsection
689.075(1)(g)....
...In the instant case, Kahn's trust created a contingent equitable interest in remainder in Alter during Kahn's life. See id. at § 56, cmt. f, illus. 8. The trust is therefore not testamentary and need not comply with will execution formalities. The district court thoroughly explored the histories of both section 689.075, Florida Statutes (1989), and sections 56 and 57 of the Restatement (Second) of Trusts (1957) to reach the same conclusion that we reach today. The language of subsection 689.075(1)(g) is clear on its face, and we refuse to speculate beyond its plain meaning....
...The legislature, not this Court, is charged with determining whether to extend the formalities of the statute of wills to inter vivos trusts of personal property of which the settlor is the sole trustee. We therefore approve the decision of the district court and hold that subsection 689.075(1)(g) provides two alternative tests to determine the validity of such trusts....
...GRIMES, J., dissents with an opinion, in which OVERTON and HARDING, JJ., concur. OVERTON, Justice, dissenting. As the author of the opinion in Lane v. Palmer First National Bank & Trust Co.,
213 So.2d 301 (Fla. 2d DCA 1968), I fully agree with the dissent of Justice Grimes. The history and interpretation of section
689.075, Florida Statutes (1989), by Justice Grimes in his dissent is correct and, in my view, in full accord with the intent and purpose of the legislature....
...I write only to emphasize that I strongly believe the majority opinion is clearly contrary to the intent of the legislature and, consequently, suggest that the legislature review this statute at its earliest opportunity. GRIMES and HARDING, JJ., concur. GRIMES, Justice, dissenting. In order to properly construe section 689.075, Florida Statutes (1989), it is necessary to understand the history leading up to the enactment of the statute and the sequence of amendments resulting in its present version....
...rewritten in 1959 to reach the opposite position. Lane,
213 So.2d at 303. To clear up the uncertainty surrounding revocable living trusts in Florida after Hanson and Lane, the Florida Legislature adopted chapter 69-192, Laws of Florida (codified at section
689.075, Florida Statutes (1969)), which read as follows: AN ACT relating to declarations of trust; amending chapter 689, Florida Statutes, by adding section
689.075 to list powers that may be retained by the settlor of an inter vivos trust, either singly or jointly with another, without affecting its nontestamentary character; providing for retroactive application to trusts executed by persons living on the effective date of this act; providing an effective date. Be It Enacted by the Legislature of the State of Florida: Section 1. Chapter 689, Florida Statutes, is amended by adding Section
689.075, to read:
689.075 Inter vivos trust; powers retained by settlor....
...Kahn's unwitnessed trust instrument would not be valid. However, two years later the statute was amended by repealing section (2) of the 1969 statute and amending section (1) to read in pertinent part: Section 1. Paragraph (g) of subsection (1) of section 689.075, Florida Statutes, is amended to read: 689.075 Inter vivos trusts; powers retained by settlor....
...Yet, if this were so, there would be no reason for any reference to execution in accordance with the formalities of the execution of wills. A trust valid under the laws of Florida would obviously be valid in Florida. In a circuity of reasoning, the majority construes section 689.075 to mean that "[a]n otherwise valid trust" shall not be held invalid for any of the specified reasons, providing it is " valid....
...sole trustee; provided, however, that at the time the trust instrument is executed it is ... valid under the laws of" Florida. This makes no sense and creates an obvious ambiguity. Therefore, it is appropriate *667 to consider legislative history in order to determine what the legislature had in mind. The 1975 amendment to section
689.075 further reflects the legislature's intent that one-party trusts created in Florida be executed with the formalities of a will. The 1975 amendment was in direct response to this Court's decision in Castellano v. Cosgrove,
280 So.2d 676 (Fla. 1973), which held that section
689.075 was intended to apply only to real property and not personally and that the statute's retroactive application was an unconstitutional impairment of contract. Chapter 75-74, Laws of Florida, made it clear that section
689.075 included trusts of personal property and also contained the following additional language: (4) This section shall be applicable to trusts executed before or after July 1, 1969 by persons who are living on or after said date. However, the requirement of conformity with the formalities for the execution of wills as found in subsection (1)(g) shall not be imposed upon any trust executed prior to July 1, 1969. Section 2. The amendment of s.
689.075, Florida Statutes, by section 1 of this act is intended to clarify the legislative intent of s.
689.075 at the time of its original enactment, that s.
689.075 applies to all otherwise valid trusts which are created by written instrument and which are not expressly excluded by the terms of such section, and that no such trust shall be declared invalid for any of the reasons stated in subsections...
...to July 1, 1969. It would follow, therefore, that any such trust executed after July 1, 1969 in the State of Florida must be executed in accordance with the formalities required for the execution of a will. William Belcher, Avoiding Problems Under F.S. 689.075, Action Line (The Fla.Bar Real Prop., Prob....
...ent of a will. Therefore, it is not surprising that the legislature wished to have such a trust executed under the same formalities as a will in order to assure its authenticity and to avoid the possibility of fraud. The majority's interpretation of section 689.075 renders utterly superfluous the language pertaining to execution according to the requirements for executing a will....
CopyCited 8 times | Published | Florida 4th District Court of Appeal | 1998 WL 438819
...lor other than to the settlor's estate." § 737.111(4), Fla. Stat. (1997). As such, this section arguably undermines Zuckerman `s assertion that an inter vivos trust is not a testamentary will substitute. Nevertheless, we agree with the trial court. Section 689.075(1) indicates that an inter vivos trust should not be deemed the functional equivalent of a will, even though its testamentary aspects must be executed like one. See § 689.075(1), Fla....
CopyCited 6 times | Published | Florida 5th District Court of Appeal | 2001 WL 991554
...[4] If Alleen had become incompetent when Jose executed the 1996 trust, this amendment was a grave error. [5] See Avery v. Bender, 119 Vt. 313, 126 A.2d 99 (1956); Procter v. Woodhouse, 127 Vt. 148, 241 A.2d 785 (1968); Robbins v. Hunyady,
498 So.2d 955 (Fla. 2d DCA), rev. denied,
500 So.2d 544 (Fla.1986). See also §
689.075(1)(a), Fla....
CopyCited 5 times | Published | Florida 4th District Court of Appeal
...With one exception not pertinent here, the 1968 Constitution allows the unmarried owner of homestead property to alienate the homestead by mortgage, sale or gift, but such property is not subject to testamentary disposition where the owner leaves a spouse or minor child. Appellant relies on Section 689.075, Florida Statutes (1977) to validate the conveyance....
...Try as we may, we do not believe we can construe this statute to avoid the effect of the Supreme Court's decision in Johns v. Bowden, supra. Just as in the Johns case, it is obvious that the decedent here, as the settlor, was retaining all equitable right, title, possession and interest in the property until his death. If Section 689.075 was construed to authorize the devise of homestead property in the manner involved herein, it would contravene the homestead provisions of the Florida Constitution, as interpreted by the Florida Supreme Court in Johns, supra. We hold only that Section 689.075 does not authorize a disposition of homestead property that is prohibited by the Florida Constitution....
...one point of departure that in my judgment requires a comment because of its potential effect in subsequent cases like this one. It seems to me that it is no longer correct to strike down the trust as a prohibited attempted testamentary disposition. Section 689.075 Florida Statutes (1979) provides that a trust containing various types of provisions like the one involved here "......
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 1988 WL 59431
...und for a long time, (and it is doubtful that "trust" is of the same kind as "will"). Appellants respond that revocable inter vivos trusts as means of disposing of property upon one's death were considered invalid because illusory, until what is now section 689.075, Florida Statutes, was enacted in 1969. (They have given no response to the matter stated above in parentheses, since appellees did not state that argument.) Appellants may not have done themselves a service by calling that statute to our attention. Section 689.075 says in part the following: (1) A trust which is otherwise valid, including, but not limited to, a trust the principal of which is composed of real property, intangible personal property, tangible personal property, the possible expectancy of receiving as a named beneficiary death benefits as described in s....
...Like the Kelley court, this court could hold here that to construe the mortmain statute to extend to an inter vivos trust would confuse estate planning in much the way that court feared would result from making a deeded home subject to administration and the elective share. We think section 689.075 makes inter vivos trusts a legitimate way of reducing the assets that are subject to administration, just as a proper deed to real property is, and it is not the legislature's intent, at least since 1969, to prevent property owners fr...
...en and their issue to the several charities, does not constitute a change in a devise in the will. Hence the mortmain statute is inapplicable. We know what the trustor/testator wanted to do with the remainder interest in his property. Having adopted section 689.075, Florida Statutes, the Florida Legislature cannot have had in mind that an elderly widower with only adult children could leave his goods to charities if he happened to live at least six months after changing the pertinent trust provi...
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 46 A.L.R. 3d 477
...The 1969 Florida Legislature expressed the public policy to be that an otherwise valid inter vivos trust is not to be invalidated merely because the settlor has retained substantial powers over the trust res as well as the trustee, Ch. 69-192, Laws of Florida, 1969, F.S. § 689.075, F.S.A. While not applicable to the present trusts, F.S. § 689.075(2) F.S.A....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 1991 WL 110880
...of the trust reserved by the settlor. 1A A. Scott & W. Fratcher, The Law of Trusts § 57.2 at 139-40 (footnote omitted). In 1969 the legislature enacted a statute pertaining to inter vivos trusts which, with subsequent amendments, is now codified as section 689.075, Florida Statutes (1989). The thrust of the statute is to adopt the position of the Restatement (Second) of Trusts, § 57. While the parties agree on the general purpose of the statute, they disagree on the interpretation of paragraph 689.075(1)(g), which is pivotal for the present case. The statute provides: 689.075 Inter vivos trusts; powers retained by settlor....
...In view of that fact, we need not reach Alter's alternative arguments with respect to the 1st Nationwide account. [6] Reversed and remanded. ON MOTION FOR REHEARING In her motion for rehearing Sharon Zuckerman argues that the court has misinterpreted section 689.075, Florida Statutes (1989)....
...er July 1, 1969, by persons who are living on or after said date. However, the requirement of conformity with the formalities for the execution of wills as found in paragraph (1)(g) shall not be imposed upon any trust executed prior to July 1, 1969. § 689.075(4), Fla....
...Quoting one commentator, Zuckerman argues: "It would follow, therefore, that any such trust executed after July 1, 1969 in the State of Florida must be executed in accordance with the formalities required for the execution of a will." Belcher, Avoiding Problems under F.S. 689.075, Real *308 Property, Probate & Trust Law Sec....
...Paragraph (1)(g) of the statute permits a settlor to serve as sole trustee, "provided that at the time the trust instrument is executed it is either valid under the laws of the jurisdiction in which it is executed or it is executed in accordance with the formalities for the execution of wills required in such jurisdiction." § 689.075(1)(g), Fla....
..., 1969, it could easily have done so. Instead, the 1975 legislature reenacted paragraph (1)(g) intact. Zuckerman's position must therefore be rejected. An examination of the legislative history of the statute also negates Zuckerman's interpretation. Section 689.075 originated as a proposal for statutory reform by James S. Roth. Compare § 689.075, Fla....
...See Lowell & Grimsley, Florida Law of Trusts § 11-6, at 168; The Florida Bar, Administration of Trusts in Florida § 2.32, at 50. The 1969 enactment differed in several respects from the present version of the statute. Chapter 69-192, Laws of Florida, provided: Section 1. Chapter 689, Florida Statutes, is amended by adding section 689.075, to read: 689.075 Inter vivos trusts; powers retained by settlor....
...[1a] Although the 1969 act embodied the approach taken in the Restatement (Second) of Trusts, § 57, the 1969 statute deviated in one material respect: where the settlor was to be the sole trustee, the instrument was required to be executed in accordance with the formalities for the execution of wills. § 689.075(2), Fla....
...The 1969 act, however, required compliance with the statute of wills whenever the settlor was sole trustee, and the 1969 act applied this requirement to trusts executed before, as well as after, July 1, 1969 by settlors who were still alive as of July 1, 1969. § 689.075(4), Fla....
...1973), to be discussed below. In 1971 the statute was amended by deleting the requirement for compliance with the statute of wills where the settlor serves as sole trustee, and substituting the following: Section 1. Paragraph (g) of subsection (1) of section 689.075, Florida Statutes, is amended to read: 689.075 Inter vivos trusts; powers retained by settlor....
...The opinion construed the 1969 version of the statute, without discussion of the 1971 amendment. In 1975 the legislature again amended the statute. This was done at least in part in response to Castellano. The 1975 legislation provided: Section 1. Section 689.075, Florida Statutes, 1974 Supplement, is amended to read: 689.075 Inter vivos trusts; powers retained by settlor....
...e living on or *311 after said date. However, the requirement of conformity with the formalities for the execution of wills as found in subsection (1)(g) shall not be imposed upon any trust executed prior to July 1, 1969. Section 2. The amendment of s. 689.075, Florida Statutes, by section 1 of this act is intended to clarify the legislative intent of s. 689.075 at the time of its original enactment, that s. 689.075 applies to all otherwise valid trusts which are created by written instrument and which are not expressly excluded by the terms of such section, and that no such trust shall be declared invalid for any of the reasons stated in subsections (1) and (3) of such section regardless of whether the trust involves or relates to an interest in real property. ... . Ch. 75-74 §§ 1-2, Laws of Fla., codified as § 689.075, Fla. Stat. (1975). [7] Plainly, one of the principal objectives of the 1975 legislation was to make clear that the legislature had intended for section 689.075 to cover personalty, as well as realty, from the time of its original enactment in 1969....
...This accomplished two objectives. First, it removed any remaining field of operation for Hanson with respect to trusts existing prior to July 1, 1969. Second, it effectively eliminated any further Castellano -based question about the constitutionality of section 689.075. Zuckerman argues, however, that her position is supported by the statement of legislative intent found in section 2 of the 1975 amendment (now codified as § 689.075(5), Fla....
...[8] Although we deny the motion for rehearing, we agree that it would be desirable from a planning standpoint that there be an authoritative resolution of the question presented. Accordingly we certify that we have passed upon a question of great public importance: WHETHER PARAGRAPH 689.075(1)(g), FLORIDA STATUTES (1989), CREATES A SINGLE TEST, OR TWO ALTERNATIVE TESTS, FOR THE VALIDITY OF AN INTER VIVOS TRUST EXECUTED ON OR AFTER JULY 1, 1969, WHERE THE SETTLOR IS THE SOLE TRUSTEE? Rehearing denied; question certified....
...ance with the 1969 law. See Roth, Rebirth of the Revocable Trust in Florida, 44 Fla. B.J. 82, 84-85 (1970). [3a] If, of course, a pre-1969 inter vivos trust would have failed under Hanson v. Denckla, then it would also fail under the 1971 version of section 689.075, unless it had been executed in accordance with the statute of wills....
...nt. Zuckerman argues alternatively that paragraph (1)(g) is intended to apply only to non-Florida settlors because the statutory language refers to the validity of the trust instrument "under the laws of the jurisdiction in which it is executed...." § 689.075(1)(g), Fla....
...Indeed, if the word "jurisdiction" in the proviso in paragraph (1)(g) means "foreign jurisdiction," then (1) the proviso does not apply to inter vivos trusts executed in Florida, and (2) any such Florida trust is governed by the general requirements of subsection 689.075(1) which the trusts in the present case satisfy.
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 1989 WL 95303
...tee and sole beneficiary of the inter vivos trust. Thus, the legal and equitable estates have merged in her irrespective of the trust's terms. Axtell v. Coons,
82 Fla. 158,
89 So. 419 (1921). Furthermore, we reject Mrs. Hendrickson's contention that section
689.075, Florida Statutes (1985), which preserves the validity of inter vivos trusts despite retention of broad powers by the settlor, makes the merger doctrine unavailable to the surviving spouse....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2009 Fla. App. LEXIS 3446, 2009 WL 1066296
...Bothe incorrectly argues that the marital settlement agreement "dissolved" the trust because the grantors and trustees divorced. The trust has no such provision. Ms. Bothe cites to no relevant Florida law that requires the survival of the grantors or trustees for the trust to survive. To the contrary, section 689.075(1), Florida Statutes (2005), validates trusts with testamentary provisions....
CopyPublished | United States Bankruptcy Court, M.D. Florida | 1983 Bankr. LEXIS 5382
...Thus there is a clear and material distinction between the rights of the parties under the Totten Trust doctrine on the one hand and under the law governing ordinary inter vivos trusts on the other. In the leading Florida case decided on the subject of Totten Trusts subsequent to the adoption of F.S. 689.075 in 1969, Litsey v....
...money was not his but was rather held for his daughter’s benefit. It is true in Florida that retention and use of broad powers by the trustee do not invalidate an otherwise valid inter vivos trust if that trust is created by written declaration, F.S. 689.075(1) and (3)....
CopyPublished | United States Bankruptcy Court, S.D. Florida.
...st be narrowly construed. Rollins v. Pizzarelli,
761 So.2d 294 (Fla.2000). There is no dispute that the Trust in the case, the Stanley Jack Trust, as amended, is a valid express trust created in 1992 by Stanley Jack as Settlor and Trustee. Fla.Stat. §
689.075(1) (stating that inter vivos trusts are valid even where settlor is sole trustee and beneficiary, and retains the right to modify or amend the trust)....
CopyPublished | District Court of Appeal of Florida | 13 Fla. L. Weekly 1403, 1988 Fla. App. LEXIS 2479
...long time, (and it is doubtful that “trust” is of the same kind as “will”). Appellants respond that revocable inter vivos trusts as means of disposing of property upon one’s death were considered invalid because illusory, until what is now section 689.075, Florida Statutes, was enacted in 1969. (They have given no response to the matter stated above in parentheses, since appellees did not state that argument.) Appellants may not have done themselves a service by calling that statute to our attention. Section 689.075 says in part the following: (1) A trust which is otherwise valid, including, but not limited to, a trust the principal of which is composed of real property, intangible personal property, tangible personal property, the possible expectancy of receiving as a named beneficiary death benefits as described in s....
...Like the Kelley court, this court could hold here that to construe the mortmain statute to extend to an inter vivos trust would confuse estate planning in much the way that court feared would result from making a deeded home subject to administration and the elective share. We think section 689.075 makes inter vivos trusts a legitimate way of reducing the assets that are subject to administration, just as a proper deed to real property is, and it is not the legislature’s intent, at least since 1969, to prevent property owners...
CopyPublished | District Court of Appeal of Florida | 14 Fla. L. Weekly 1958, 1989 Fla. App. LEXIS 4664
...nd sole beneficiary of the inter vivos trust. Thus, the legal and equitable estates have merged in her irrespective of the trust’s terms. Axtell v. Coons,
82 Fla. 158 ,
89 So. 419 (1921). Furthermore, we reject Mrs. Hendrickson’s contention that section
689.075, Florida Statutes (1985), which preserves the validity of inter vivos trusts despite retention of broad powers by the settlor, makes the merger doctrine unavailable to the surviving spouse....
CopyPublished | Court of Appeals for the Eleventh Circuit
...A trust agreement is not rendered invalid merely because the settlor possesses the power to revoke, alter, or modify the trust in whole or in part, invade its principal, or has retained the right to receive all or part of the income of the trust during his lifetime. Fla.Stat.Ann. § 689.075....
