# Third District Court of Appeal

State of Florida

Opinion filed June 15, 2016.

Not final until disposition of timely filed motion for rehearing.

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No. 3D15-171

Lower Tribunal No. 14-1054

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### Oscar F. Bernal, individually and as Personal Representative of the

Estate of Renee Maria Zintgraff

, Appellant,

vs.



### Christiane E. Marin, as Trustee of the Renee Maria Zintgraff

Revocable Living Trust dated October 15, 2004

,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Celeste Hardee

Muir

, Judge.

Golden Glasko & Associates, P.A., and William H. Glasko

, for appellant.

Sloto & Associates, P.L., and Seth S. Diamond

, for appellee.

Before SUAREZ, C.J., and ROTHENBERG and SCALES, JJ.

ROTHENBERG, J.Oscar F. Bernal, the named personal representative and beneficiary of Renee

Maria Zintgraff’s Last Will and Testament (“Will”), appeals the trial court’s order

granting summary judgment and the subsequently issued Final Declaratory

Judgment in favor of the appellee, Christiane E. Marin, the successor trustee of

Zintgraff’s Revocable Living Trust (“Trust”). The trial court’s decision is based

on its interpretation of section 736.0602(3), Florida Statutes (2008), and

conclusion that Zintgraff’s later-executed Will did not validly revoke her earlier

Trust. For the reasons that follow, we reverse.

Summary of the Underlying Facts

On October 15, 2004, Zintgraff executed the Trust naming herself as the

initial trustee and her cousin, Marin, as the successor trustee. The Trust directed

that upon Zintgraff’s death, a specific bequest of $5,000 was to be distributed to

her cousin, Lisa Cardozo, and the remainder of her Trust property was to be

equally divided and distributed to the Zoological Society of Florida, Defenders of

Wildlife, International Wolf Center, and Parrot Jungle of Miami. Zintgraff funded

the Trust with her solely owned residence and with her Wells Fargo brokerage

account, both of which were titled in the name of the Trust. It is undisputed that in

the Trust, Zintgraff specifically reserved her right to revoke the Trust during her

lifetime but that the Trust did not provide a method for revocation of the Trust.

2Four years later, on November 8, 2008, Zintgraff met with Sara Saba, an

attorney, and executed her Will appointing Bernal as her personal representative

and devising all of her tangible personal property and residuary estate to Bernal.

The Will reads in pertinent part, “I, RENEE MARIA ZINTGRAFF, a resident of

Miami-Dade County, Florida, and a citizen of the United States, declare this to be

my Last Will and Testament, revoking all other wills, trust and codicils previously

made by me.” (emphasis added). Although Zintgraff’s Will provides that she is

revoking her “trust,” the Will does not name or specifically refer to the “Renee

Maria Zintgraff Revocable Living Trust.”

Upon Zintgraff’s death in 2013, Bernal filed an emergency petition for

administration seeking to admit Zintgraff’s Will to probate, and alleging that

Zintgraff’s real property and the Wells Fargo account were assets of the estate to

be distributed pursuant to Zintgraff’s Will. The Will was admitted to probate, and

Bernal was appointed personal representative of Zintgraff’s estate.

Thereafter, Marin filed a complaint seeking a temporary injunction and a

declaratory judgment finding that the alleged revocation of the Trust in Zintgraff’s

Will was ineffectual and that the Trust remained valid. The parties conducted

discovery; Marin filed a motion for summary judgment; and after conducting a

hearing, the trial court granted Marin’s motion and entered a Final Declaratory

Judgment in favor of Marin. The trial court concluded that because Zintgraff’s

3Will did not specifically name or expressly refer to the Trust or specifically devise

her real property and the Wells Fargo account, the Will did not revoke the Trust

and Zintgraff’s real property and the Wells Fargo account remained Trust assets to

be disbursed according to the Trust.

Analysis

This appeal presents an issue of first impression, namely the interpretation

of section 736.0602(3), “Revocation or amendment of revocable trust,” which

provides as follows:

(3) Subject to s. 736.0403(2), the settlor may revoke or amend a

revocable trust:

(a) By substantial compliance with a method provided in the

terms of the trust; or

(b) If the terms of the trust do not provide a method, by:

1. A later will or codicil that expressly refers to the trust or

specifically devises the property that would otherwise have passed

according to the terms of the trust; or

2. Any other method manifesting clear and convincing evidence

of the settlor’s intent.

It is undisputed that the Trust did not provide a method for revocation and

thus subsection (a) of section 736.0602(3) does not apply. It is also undisputed

that Zintgraff’s later Will did not name or expressly refer to the Renee Maria

Zintgraff Revocable Living Trust or specifically devise her real property or the

Wells Fargo account to Bernal, and therefore, the Will did not comply with

subsection (b)(1) of section 736.0602(3). Instead, her Will simply devised all of

her tangible personal property and residuary estate to Bernal and declared the Will

4“to be my Last Will and Testament, revoking all other wills, trust and codicils

previously made by me.” The question that must be answered in this appeal

is whether Bernal may rely on subsection (b)(2) which allows for the revocation or

amendment of a trust by “[a]ny other method manifesting clear and convincing

evidence of the settlor’s intent.” The trial court found that the “[a]ny other

method” of revocation permitted under subsection (b)(2) does not include a will

that fails to satisfy the requirements of subsection (b)(1). We conclude that such a

narrow interpretation of the statute is in conflict with the purpose of revocable

trusts and the plain language of the statute.

The Florida Supreme Court has specifically recognized that “[a] revocable

trust is a unique type of transfer

. . . [and] [s]ince [the settlor] is the sole

beneficiary of the trust during [the settlor’s] lifetime, [the settlor] has the absolute

right to call the trust to an end and distribute the trust property in any way [the

settlor] wishes.” Fla. Nat’l Bank of Palm Beach Cnty. v. Genova

, 460 So. 2d 895,

897 (Fla. 1985); Siegel v. Novak

, 920 So. 2d 89, 95 (Fla. 4th DCA 2006) (holding

that “[t]he central characteristic of a revocable trust is that the settlor ‘has the right

to recall or end the trust at any time, and thereby regain absolute ownership of the

trust property’”). It is this retention of control over the property which

distinguishes a revocable trust from other types of conveyances. Genova

, 460 So.

2d at 897. Based on the uniqueness of revocable trusts, which includes the

5settlor’s retention of control over the property and the settlor’s absolute right to

revoke his or her trust, the Florida Supreme Court concluded in Genova that even

the principle of undue influence cannot defeat the settlor’s revocation of a

revocable trust. Id. at 897-98. The Court therefore concluded that when Mrs.

Genova created the revocable trust in question, she “reserved the absolute right to

revoke if she were not incompetent. In order for this to remain a desirable feature

of a trust instrument, the right to revoke should also be absolute.” Id. at 898.

Prior to the enactment of section 736.0602(3) in 2008, there was no statutory

mechanism to revoke a trust, but under the common law and section 330(1) of the

Restatement of Trusts (Second), the settlor’s intent was the polestar for

determining whether a revocation of the trust had occurred, and this intent was a

question of fact to be resolved by the trier of fact.

Section 330(1) of the Restatement of Trusts (Second) provides:

(1) The settlor has the power to revoke the trust if and to the extent

that by the terms of the trust he reserved such a power.

Comment (i) of section 330 of the Restatement of Trusts (Second) further states:

(i) Where no method of revocation specified. If the settlor reserves a

power to revoke the trust but does not specify any mode of revocation,

the power can be exercised in any manner which sufficiently

manifests the intention of the settlor to revoke the trust.

Any definitive manifestation by the settlor of his intention that the

trust should be forthwith revoked is sufficient.

. . .

See also Euart v. Yoakley

, 456 So. 2d 1327, 1329 (Fla. 4th DCA 1984) (holding

6that “the settlor’s intention is the polestar by which courts must be guided in

determining whether a revocation of an inter vivos trust has occurred”).

The enactment of section 736.0602(3) has simplified the process somewhat.

If the trust provides for a specific method for revocation or if a later will or codicil

specifically references the trust and/or specifically devises the property that would

have passed under the terms of the trust, then no determination of the settlor’s

intent is needed to revoke the trust. To revoke or amend a trust without having to

prove the settlor’s intent, the settlor need only substantially comply with the

method provided in the terms of the trust for revoking the trust, § 736.0602(3)(a),

or execute “[a] later will or codicil that expressly refers to the trust or specifically

devises the property that would otherwise have passed according to the terms of

the trust,” § 736.0602(3)(b)(1).

However, if either of these two options are not available because either the

trust did not specify a method for revocation or there is no later will or codicil that

complies with section 736.0602(3)(b)(1), then “[a]ny other method manifesting

clear and convincing evidence of the settlor’s intent” may be utilized. §

736.0602(3)(b)(2). In other words, section 736.0602(3) established two methods to

revoke or amend a trust that if complied with require no evidence of the settlor’s

intent, and retained the “any other method” mechanism for revocation or

amendment of a trust previously found in section 330(1) of the Restatement of

7Trusts (Second). However, if the “any other method” under section

736.0602(3)(b)(2) is alleged, the proponent must not only prove the settlor’s intent,

he must do so by clear and convincing evidence.

Thus, based on the clear language of section 736.0602(3), the Florida

Legislature has: (1) reduced the burden of establishing a revocation or amendment

of a trust if the trust provides for a method to revoke or amend or if a later will or

codicil complies with the specific requirement of section 736.0602(3)(b)(1); and

(2) increased the burden when neither of these methods is available by requiring

clear and convincing evidence of the settlor’s intent.

The trial court concluded that the Will, as written, does not and cannot

satisfy the clear and convincing evidence requirement to revoke or amend the Trust

by “any other method.” While it is true that the Will by itself does not reach the

clear and convincing evidence threshold, the Will is not the only record evidence

of Zintgraff’s intent. The record also includes the deposition of Sara Saba, the

lawyer who drafted the Will for Zintgraff, and an affidavit submitted by Gary

Tacon, a “friend and close confidant” of Zintgraff.

Saba testified in her deposition that she was hired by Zintgraff to draft her

Will. During their initial meeting, Zintgraff told Saba “that she wanted to leave

everything to [Bernal].” When Saba asked Zintgraff if she had executed any prior

wills or created any trusts, Zintgraff told her that there were no prior wills but she

8had a trust which she wished to revoke. She explained that since the creation of

her Trust, she had developed a very close relationship with Bernal and the Trust no

longer represented her wishes with regard to her property. Zintgraff did not

provide Saba with any further details about the Trust or a copy of the Trust, which

she explained was in Marin’s possession.

Saba, a young and relatively new lawyer, explained that she had never

revoked a trust before, but she included the language revoking Zintgraff’s Trust in

the Will because Zintgraff told her she had a Trust and she wanted to revoke the

Trust. Saba explained that she did not provide any details in the Will about the

Trust because Zintgraff only had one Trust and Zintgraff did not give her a copy of

the Trust. Specifically Saba testified: “[Zintgraff] had no other wills, she had a

trust, and that’s the one that she wanted revoked. I didn’t have the trust. I couldn’t

see the details of the trust but I made sure I

– there was only one, and I put the trust

in there.”

When Saba was questioned about who Zintgraff wanted to be the beneficiary

of her estate, she stated the following:

A. Do you want the wife of Oscar, do you want anyone else to be a

beneficiary? I mean, we went through all of that. And she was like,

no, just Oscar.

Q. Is there any question in your mind that Renee Zintgraff, by

executing the November 11, 2008 will, intended for Oscar Bernal to

be the sole beneficiary of her estate?

A. Is there any question in my mind?

Q. Is there any question in your mind?

9. . . .

Q. I want to be clear as to what you’re saying. Is there any doubt

in your mind that it was Renee Zintgraff’s intent to revoke the trust

that was in place prior to the execution of this will?

A. There’s no doubt in my mind at all. She wanted to revoke the

trust.

In addition to Saba’s sworn deposition testimony, the record includes a

sworn affidavit executed by Gary Tacon, Zintgraff’s friend and close confidant.

Tacon explains in his affidavit that he had known Zintgraff for over forty-four

years and that they had remained close until Zintgraff’s death. When Zintgraff

spoke of her family, which was not often, “it was not in a positive light.”

Approximately ten years before Zintgraff’s death, she called Tacon and asked him

whether he would be willing to take possession of her ashes after her death and

take them to Alaska and dispose of them into the ocean. Not long after that

conversation, Zintgraff sent him a legal document stating her request, which he

signed and returned to her. Also not long after that conversation, Zintgraff told

Tacon that Bernal had moved into her home and he was helping her with the “day

to day things.” Throughout the years, Tacon got to know Bernal, who Tacon

believed genuinely cared for Zintgraff, and Zintgraff consistently told Tacon how

grateful she was to Bernal for everything he had done for her.

Tacon also stated that on several occasions, Zintgraff told him that she

intended to leave all of her possessions to Bernal when she died to thank him for

all he had done for her over the years. A few years before her death, Zintgraff

10actually told Tacon that “when I pass, I will rest in peace knowing he [Bernal] is

taking care of the house and in turn the house will be taking care of him.” Lastly,

Tacon stated: “I feel it is a shame that there is litigation surrounding Renee Maria

Zintgraff’s estate, as I have always known it to be very clear that Renee Maria

Zintgraff intended on leaving all of her possessions, including her home to Oscar

Bernal.”

This evidence, when considered with the Will, is highly compelling

evidence of Zintgraff’s intent. What this evidence reflects, if unrebutted, is that

several years after creating her revocable Trust, Zintgraff decided to revoke her

Trust and leave all that she had left (her house and the Wells Fargo account) to

Bernal who had lived with her and cared for her for many years. To effectuate her

wishes, she hired Saba to draft her Will and revoke her Trust. Saba, a lawyer, who

had never revoked a trust before, drafted Zintgraff’s Will, included what she

believed was the correct language regarding Zintgraff’s intent to revoke her one

and only Trust and to leave all of her property to Bernal. Zintgraff was clear and

unequivocal when she met with Saba and spoke with Tacon, her friend of fortyfour years, that she wanted to revoke her Trust and leave all of her possessions to

Bernal. However, because the trial court interpreted section 736.0602 to preclude

consideration of evidence manifesting Zintgraff’s intent under section

736.0602(3)(b)(2), this evidence was not considered.

11Such an interpretation of the statute is contrary to the plain language of the

statute, the Restatement of Trusts (Second), years of law regarding revocation and

amendments to revocable trusts, and logic. Section 736.0602(3)(b)(2) provides

that a trust may be revoked or amended by “[a]ny other method manifesting clear

and convincing evidence of the settlor’s intent.” See also Macfarlane v. First Nat’l

Bank of Miami

, 203 So. 2d 57, 60 (Fla. 3d DCA 1967) (“No magic art is necessary

to revoke a trust.

. . . [ A ] ny mode sufficiently manifesting an intention of the

trustor to revoke is effective”) (emphasis added). If Zintgraff had simply written a

letter to Tacon telling him that she no longer wanted to leave $5,000 to Lisa

Cardozo and the rest of her property to the four entities listed in her Trust, but,

instead, wanted to leave everything to Bernal, or she had scribbled the exact same

thing on a napkin or a piece of paper and left it in her dresser drawer, then clearly,

the “any other method” provision of section 736.0602(3)(b)(2) would be applicable

and evidence of Zintgraff’s intent would be admissible. Further, if this evidence

clearly and convincingly manifested Zintgraff’s intent to revoke her trust, then

Zintgraff’s intent would be honored. But, under the trial court’s interpretation, a

will drafted by a lawyer that was then executed by the testator, witnessed and

notarized and that says the same thing, may not be considered.

Based on the plain language of section 736.0602 (3) and sheer logic, a settlor

may revoke or amend a trust under subsection (3)(a) by substantially complying

12with the method provided in the terms of the trust, or under subsection (3)(b)(1), if

the terms of the trust do not provide a method, by executing a later will or codicil

that expressly refers to the trust or specifically devises the property that would

otherwise have passed according to the terms of the trust. Under these two

methods, no further evidence is required. However, if the settlor revokes or

amends his or her trust under the “any other method” provision under subsection

(3)(b)(2), then the settlor’s intent must be established by clear and convincing

evidence.

We, therefore, reverse the Final Declaratory Judgment entered in favor of

the appellee and remand for further proceedings consistent with this opinion.

Reversed and remanded.

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