PROPERLY DRAFTING A WILL TO DEVISE TRUST ASSETS

Before drafting a will, the testator, i.e., the person who owns the assets that will be distributed after his or her death, must fully understand any restriction placed on the alienation of his or her assets. A testator might erroneously believe he or she has the power to devise an asset as he or she wishes and be left with an unenforceable bequest. Such was the case of Sally Christiansen.

In Cessac v. Stevens, No. 1D12-5834, 2013 Fla. App. LEXIS 18525 (Fla. 1st DCA November 20, 2013), the decedent, Ms. Christiansen, devised the remainder of her estate to Joanne Cessac. Through her will, Ms. Christiansen essentially disinherited her two children. When she died, Ms. Christiansen was the beneficiary of three trusts all of which were created by her father. Normally, the assets in those trusts would be devised to whomever Ms. Christiansen wished in compliance with her will. In this case, Ms. Christiansen intended that the assets in those trusts be devised to Ms. Cessac. The district court, however, found that the assets in those trusts must be distributed to Ms. Christiansen’s children, not to Ms. Cessac.

A person creating a trust may place restrictions on the disposition of the trust’s property. Ms. Christiansen’s father included the following restriction on the trusts:

“Upon the death of my daughter, [Ms. Christiansen], the Trustees shall transfer and deliver the remaining principal of this share of the trust, … as my daughter may, by her will, appoint, making specific reference to the power herein granted.

If [Ms. Christiansen] … dies without exercising the power of appointment granted herein, [her] share of this trust shall be divided into equal shares so that there shall be one share for each child of [Ms. Christiansen]….” Cessac, 2013 Fla. App. LEXIS 18525, at *2.

All three trusts included identical wording. Ms. Christiansen’s will included only the following provision regarding those trusts: “Included in my estate assets are the STANTON P. KELLER TRUST . . . and two (2) currently being held at Northern Trust of Florida in Miami, Florida.” Her will therefore did not make “specific reference to the power” granted by the trusts to devise her share of the trusts through her will. Because Ms. Christiansen made no reference to the power granted by the trusts to devise the trust assets, the trust assets must be devised as the trusts’ creator originally intended: “divided into equal shares” and distributed to Ms. Christiansen’s children.

The district court recognized that this was a harsh result. However, the court also noted that such a result was a function of the intent of the original donor, i.e., Ms. Christiansen’s father. Even though Ms. Christiansen intended that those assets be devised to Ms. Cessac, the intent that matters in this case is that of Ms. Christiansen’s father, who intended that Ms. Christiansen make “specific reference to the [appointment] power” if she were to devise her interest in the trusts by will. Ms. Christiansen failed to make such reference. The court further found that compliance with the trusts’ requirements would not have been difficult because “all that was necessary was some reference to powers of appointment in the [Ms. Christiansen]’s will.” Cessac, 2013 Fla. App. LEXIS 18525, at *14.

This case serves as a cautionary tale to both attorneys and those in the process of estate planning. It is important that the person drafting a will understand the nature and intricacies of the testator’s assets and restrictions thereon. In the case of Ms. Christiansen, because her attorney failed to ensure that her will complied with the trusts’ requirements, Ms. Christiansen’s shares in the trusts were not hers to devise upon her death. It is therefore important that a testator consult with a thorough probate and trust attorney when drafting his or her will.

Florida Probate Attorney Peter T. Mavrick represents clients in probate, trust, and guardianship litigation. This article is not a substitute for legal advice tailored to a particular situation. Peter T. Mavrick can be reached at: Website: www.mavricklaw.com; Telephone: 954-564-2246; Address: 1620 West Oakland Park Boulevard, Suite 300, Fort Lauderdale, Florida 33311; Email: peter@mavricklaw.com.