Thursday, April 12, 2012

From BryanCaveFiduciaryLitigation.com

Let’s say that you have a will executed in 2005 that provides something like “I give all the residue of my estate, including my homestead, to the Trustee serving under my Irrevocable Trust Agreement dated October 26, 1999, as amended or hereafter amended.”  In other words, you have a trust incorporated into the  will.

Now, let’s say you want to challenge the validity of that trust.  What should you do when you receive a notice of administration regarding that 2005 will?

In Pasquale v. Loving, a Florida appellate court held that, in order to challenge the validity of that trust incorporated into the will, you will first have to pursue remedies available at probate.  That’s what Dominic Pasquale, Jr. and Anthony Pasquale did when they received a notice of administration regarding the administration of the estate of Mary N. Porter.

When the Pasquales received a notice of administration, they filed a complaint against several individuals and trustees and a notice of independent action stating that a claim had been filed against the estate regarding all trust documents and the probate administration.  They later filed an amended complaint adding another trustee and personal representative of the estate as a defendant.  The “subject matter” of the complaint involved the alleged incapacity of the decedent and listed a number of trust amendments and will codicils that resulted in revocation of bequests to the Pasquales and reduction of the trust res.  The 2005 will was not specifically included in the list, but the complaint alleged that all testamentary documents executed after 2000 were null and void.

The trial court dimissed the complaint on the grounds that the complaint was not a will contest.  The court of appeals reversed.

The appellate court determined that the complaint was a will contest.  The will incorporated the trust and the will and trust documents had to be read together.  So to get at the trust, you had to get at the will first.  While the complaint didn’t specifically mention the 2005 will, it challenged the validity of all testamentary documents executed after 2000, and was filed in response to the notice of administration of the 2005 will.  Thus, while the complaint was “not a model of clarity,” it was still a will contest.

For a more in-depth discussion on the use of Pourover Wills and Revocable Trusts, see our post, “Why Do I Need a Trust?”

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