PROBATE CORNER

By: David M. Garten, Esq.

ARTICLE: When Does A Devise Vest?

The death of the testator is the event that vests the right to devises unless the testator in the will has provided that some other event must happen before a devise vests. Refer to §732.514, Fla. Stat. The same rule applies to revocable Trusts. See,Sorrels v. McNally, 89 Fla. 457, 105 So. 106 (1925); Fla. Nat’l. Bank of Palm Beach Cty. v. Genova, 460 So. 2d 895(Fla. 1984); Brundage v. Bank of Am., 996 So. 2d 877 (Fla. 4th DCA 2008); Bryan v. Dethlefs, 959 So. 2d 314 (Fla. 3rd DCA 2007); Goldentrester v. Richard, 498 So. 2d 1303 (Fla. 3rd DCA 1986); The Wooster School Corp. v. Hammerer, 410 So. 2d 524 (Fla. 4th DCA 1982).

A condition is “precedent” when it must be performed before the estate vests in the beneficiary, and it is “subsequent” when it is to be performed after the estate has vested in the beneficiary. See, Seitter v. Riverside Academy, 144 Fla. 69, 197 So. 764 (1940). Any doubt as to whether an interest is vested or contingent should be resolved in favor of vesting. See, Lumbert v. Estate of Carter, 867 So. 2d 1175 (Fla. 5th DCA 2004). As the Court stated in Estate of Rice v. Greenberg, 406 So. 2d 469 (Fla. 3d DCA 1981): “This Court is committed to the doctrine that remainders vest on the death of the testator or at the earliest date possible unless there is a clear intent expressed to postpone the time of vesting. It is also settled that in case of doubt as to whether a remainder is vested or contingent, the doubt should be resolved in favor of its vesting if possible, but these general rules all give way to the cardinal one that a will must be construed so as to give effect to the intent of the testator.”

The presumption that a legacy was intended to be vested applies with far greater force, where a testator is making provision for a child or grandchild, than where the gift is to a stranger or to a collateral relative. See, Bryan v. Dethlefs, 959 So. 2d 314 (Fla. 3rd DCA 2007), citing, Sorrels v. McNally, 89 Fla. 457, 105 So. 106 (1925).

CONDITION AGAINST PUBLIC POLICY: If the condition is against public policy, the condition is void. See, Jenkins v. Merritt, 17 Fla. 304 (Fla. 1879) (restraint on marriage). As the Restatement (Third) of Property: Wills and Other Donative Transfers § 10.1 cmt. c points out, “American law curtails freedom of disposition only to the extent that the donor attempts to make a disposition or achieve a purpose that is prohibited or restricted by an overriding rule of law.” But what types of dispositions and purposes does the law prohibit or restrict? The Restatement (Third) of Property provides the following non-exhaustive list of situations: (a) spousal rights; (b) creditors’ rights; (c) unreasonable restraints on alienation or marriage; (d) provisions promoting separation or divorce; (e) impermissible racial or other categoric restrictions; (f) provisions encouraging illegal activity; and (g) the rules against perpetuities and accumulations.

See also, The Restatement (Third) of Trusts: Purpose and Provisions That Are Unlawful or Against Public Policy, §29 which reads: “An intended trust or trust provision is invalid if: (a) Its purpose is unlawful or its performance calls for the commission of a criminal or tortuous act; (b) It violates rules relating to perpetuities; or (c) It is contrary to public policy.”

IMPOSSIBILITY OF PERFORMANCE: When it becomes impossible for the condition to be performed without the fault of the beneficiary, performance should be excused. See, Newman v. Newman, 766 So. 2d 1091 (Fla. 5th DCA 2000) (spouse’s ability to perform the condition that she not die prior to distribution of her husband’s estate was made impossible by the acts of her step-son who intentionally and without good cause challenged his father’s will and delayed distribution of his father’s estate to his 91 year old step-mother); In Re Estate of Mollard, 98 So. 2d 814 (Fla. 1st DCA 1957) (a husband, knowing that his wife had bequeathed $5,000 to her private nurse subject to the condition that she was still employed by his wife at the time of her death, arbitrarily discharged the nurse 20 days before his wife’s death); Wooster School Corp. v. Hammerer, 410 So. 2d 524 (Fla. 4th DCA 1982) (beneficiary’s ability to perform the condition of his continued employment after the settlor’s death was made impossible when the settlor’s relatives terminated his employment prior to the settlor’s death). See also, The Restatement of Property, § 438, subsection “d” of the Comment at pp. 2551-2552 and subsection “f” of the Comment at p. 2553.

CONDITION THAT BENEFICARY SURVIVE DISTRIBUTION: In Bryan v. Dethlefs, 959 So. 2d 314 (Fla. 3rd DCA 2007), the trust provided in part that “[u]pon my death, the then balance of principal and accumulated income remaining in the trust fund shall be distributed to my Grandson, ROBERT R. BIZZELL, if he is living at the time of distribution.” [emphasis added]. Bizzell died after the settlor and prior to the distribution of the trust assets. Bizzell’s half-sister asserted that the trust assets vested with Bizzell at the time of the death, and that those assets were therefore part of Bizzell’s estate when he died. But, the other beneficiaries challenged this position and argued that the trust assets vested at the time of their distribution, and thus, those assets that had yet to be distributed at the time of Bizzell’s death were not part of Bizzell’s estate and therefore had to be distributed to them as the settlor’s remaining descendants. The appellate court agreed with the half-sister. Pursuant to the trust’s language, the assets therein could only have vested in Bizzell upon the settlor’s death. The clause “if he is living at the time of distribution” did not establish a requirement that the assets be distributed before Bizzell’s right vested. Second, there was no doubt that Bizzell survived the settlor. As a result, Bizzell’s death did not divest his estate of its interest in the assets of the trust that remained to be distributed.

See also, Lumbert v. Estate of Carter, 867 So. 2d 1175 (Fla. 5th DCA 2004), where the court stated that a requirement in a will or trust that the funds to which the beneficiary was entitled had to be actually distributed to her before her right vested “would place too much power in a trustee or personal representative to alter rights of beneficiaries simply by delaying testamentary trust distributions, or funding of testamentary trusts.”