Zuckerman v. Alter
| Decision Date | 28 January 1993 |
| Docket Number | No. 78693,78693 |
| Citation | 615 So.2d 661 |
| Parties | 18 Fla. L. Week. S82 Sharon ZUCKERMAN, Petitioner, v. Jack ALTER, Respondent. |
| Court | Florida Supreme Court |
Robert W. Goldman and D. Scott Elliott of Steel, Hector and Davis, West Palm Beach, for petitioner.
Joel D. Eaton of Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A., Miami, for respondent.
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:
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.
Celia Kahn died testate in 1986, naming her nephew Jack Alter personal representative, devising all her household goods and personal effects to Alter, and leaving the residuary of her probate estate to her nieces Sharon Zuckerman and Beverly Kanter. A brokerage account containing the majority of Kahn's assets passed outside her will through a 1982 inter vivos trust that Kahn executed as sole trustee for the benefit of Alter. 1 The trust instrument was a standardized form that Kahn obtained and filled out herself. Kahn's signature on the trust instrument was notarized, but was not attested to by two subscribing witnesses.
Zuckerman and Kanter petitioned the court for a determination that Kahn's inter vivos trust contained testamentary aspects and was therefore invalid because the notary public's sole witnessing signature failed to satisfy Florida's will execution requirements. 2 The circuit court entered summary judgment in favor of Zuckerman and Kanter, determining that the inter vivos trust was ineffective to transfer the trust corpus to Alter upon Kahn's death. 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. Under the first test, such a trust instrument need only be executed in accordance with the required formalities 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 death benefits as described in s. 733.808, or any combination thereof, and which has been created by a written instrument shall not be held invalid or an attempted testamentary disposition for any one or more of the following reasons:
* * * * * *
(g) Because the settlor is, at the time of the execution of the instrument, or thereafter becomes, 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.
(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. Sec. 689.01 (), Sec. 689.05 (), Fla.Stat. (1989). However, Florida inter vivos trusts of personal property may be created by deed, may rest entirely on parol, or may be partially in writing and partially in parol, provided the words employed are sufficient to create a trust. In re Estate of Pearce, 481 So.2d 69 (Fla. 4th DCA 1985), review denied, 491 So.2d 280 (Fla.1986); see also In re Estate of Craft, 320 So.2d 874 (Fla. 4th DCA 1975), cert. denied, 336 So.2d 105 (Fla.1976); Fraser v. 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). Words of common usage, when employed in a statute, should be construed in their plain and ordinary sense. Pederson v. Green, 105 So.2d 1 (Fla.1958). Furthermore, the legislature is assumed to have expressed its intent through the words found in a statute. Thayer v. State, 335 So.2d 815 (Fla.1976). 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).
Furthermore, Kahn's trust is not a testamentary "will substitute" that requires compliance with the formalities for the execution of wills. If by the terms of the trust an interest passes to the beneficiary during the life of the settlor, although that interest does not take effect in enjoyment or possession before the death of the settlor, the trust is not testamentary. Restatement (Second) of Trusts Sec. 56, cmt. f (1957). Moreover,
[w]here an interest in the trust property is created in a beneficiary other than the settlor, the disposition is not testamentary and invalid for failure to comply with the requirements of the Statute of Wills merely because the settlor reserves a beneficial life interest or because [s]he reserves in addition a power to revoke the trust in whole or in part, and a power to modify the trust, and a power to control the trustee as to the administration of the trust.
Id. at Sec. 57; see also id. at cmt. h (applying Sec. 57 not only to settlors transferring property to another as trustee, but also to settlors declaring themselves trustee of the property). In the instant case, Kahn's trust created a contingent equitable interest in remainder in Alter during Kahn's life. See id. at Sec. 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.
It is so ordered.
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.
...
To continue reading
Request your trial
-
State ex rel. Ins. Com'R v. Bcbs
...McDonald v. Hartford Trust Co., 104 Conn. 169, 132 A. 902, 908 (1926); Bodley v. Jones, 32 A.2d 436, 438 (Del.1943); Zuckerman v. Alter, 615 So.2d 661, 663 (Fla.1993); Kam Oi Lee v. Fong Wong, 57 Haw. 137, 552 P.2d 635, 639 (Haw.1976); Kite v. Eckley, 48 Idaho 454, 282 P. 868, 870 (Idaho, 1......
-
Knowles v. Beverly Enterprises-Florida
...to do otherwise. "[T]he legislature is assumed to have expressed its intent through the words found in a statute." Zuckerman v. Alter, 615 So.2d 661, 663 (Fla.1993). Thus, "[i]f the language of a statute is clear and unambiguous, the legislative intent must be derived from the words used wi......
-
V.K.E. v. State
...op. at 1278, yet "the legislature is assumed to have expressed its intent through the words found in a statute." Zuckerman v. Alter, 615 So.2d 661, 663 (Fla.1993). When that "language ... is clear and unambiguous, the legislative intent must be derived from the words used without involving ......
-
O.P-G. v. State
...in their plain and ordinary sense." See State v. Hagan, 387 So. 2d 943, 945 (Fla. 1980) (citations omitted); see also Zuckerman v. Alter, 615 So. 2d 661, 663 (Fla. 1993) (words of common usage, when employed in a statute should be construed in their plain and ordinary sense); Seaboard Sys. ......
-
Statutory strict liability for environmental contamination: a private cause of action to remedy pollution or mere legislative jargon?
...interpreted in Askew, to create a separate section "providing for an individual right of action under this law." (20) Zuckerman v. Alter, 615 So. 2d 661, 663 (Flat (21) State v. Webb, 398 So.2d 820,825 (Flat 1981). (22) 1983 Fla. Laws ch. 310, [Section] 84, at 3996, codified at FLA. STAT. [......