Kunce v. Robinson

469 So. 2d 874, 10 Fla. L. Weekly 1209
CourtDistrict Court of Appeal of Florida
DecidedMay 14, 1985
Docket84-2185
StatusPublished
Cited by7 cases

This text of 469 So. 2d 874 (Kunce v. Robinson) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kunce v. Robinson, 469 So. 2d 874, 10 Fla. L. Weekly 1209 (Fla. Ct. App. 1985).

Opinion

469 So.2d 874 (1985)

Thelma Jean Ulery KUNCE and Ruth F. Ulery Whitaker, Appellants,
v.
Duane H. ROBINSON, As Trustee, Appellee.

No. 84-2185.

District Court of Appeal of Florida, Third District.

May 14, 1985.
Rehearing Denied June 17, 1985.

*875 Don R. Livingstone, South Miami, for appellants.

Alfred J. Anton, Miami, for appellee.

Before SCHWARTZ, C.J., and BARKDULL and JORGENSON, JJ.

SCHWARTZ, Chief Judge.

On June 24, 1980, Ruth Freda Ulery executed an instrument creating an entirely revocable inter vivos, so-called "living," trust, into which she placed essentially all her real and personal property. Her nephew Duane H. Robinson was named trustee. The purposes of the trust were stated to be for the benefit of the grantor during her lifetime and then for her children and grandchildren.[1] Accordingly, the key provision, which set forth the beneficiaries, provided:

Management and Distribution of Income and Principal of the Trust
A. During the lifetime of the Grantor, the Trustee shall manage the trust property and shall make distributions of income and principal in accord with the provisions of this Trust for the benefit of the Grantor. After Grantor's death, the Trustee shall manage the trust property and shall make distributions of income and principal in accord with the provisions of this Trust for the benefit of Grantor's children and the natural born children of Grantor's children.
B. After the death of the Grantor, the Trustee may make distributions of income or principal, or both, to or for the benefit of Grantor's children or the natural born children of Grantor's children or both, from time to time and in such amounts as the Trustee, in his sole and exclusive discretion deems necessary or desirable for their health, education, comfort, and general welfare, taking into consideration the standard of living to which they are accustomed at the time of Grantor's death.

On July 31, 1981, when Mrs. Ulery was hospitalized with cancer, she executed the trust instrument which is in issue here. The trust (Trust II) was funded with the identical property which had been contained in, but which was thereby constructively removed from the 1980 trust,[2] as its terms permitted. Robinson, who was entirely responsible for the preparation and execution of the new instrument, was again the trustee. Of more significance, since the witnesses to the trust and Mrs. Ulery's *876 relatives uniformly stated, although it was technically unnecessary because of the terms of the first trust,[3] that the settlor's sole reason for establishing Trust II was to acknowledge a recently-born grandchild, her intentions to benefit her children and grandchildren were restated in almost identical language.[4],[5] The dispositive beneficiary provision, however, contained a drastically different addition. It stated:

Management and Distribution of Income And Principal of the Trust

A. During the lifetime of the Grantor, the Trustee shall manage the trust property and shall make distributions of income and principal in accord with the provisions of this Trust for the benefit of the Grantor. After Grantor's death, the Trustee shall manage the trust property and shall make distributions of income and principal in accord with the provisions of this Trust for the benefit of Grantor's children and the natural born children of Grantor's children, and others as the Trustee in his discretion may deem appropriate.
B. After the death of the Grantor, the Trustee may make distributions of income or principal, or both, to or for the benefit of Grantor's children or the natural born children of Grantor's children, or both, from time to time and in such amounts as the Trustee, in his sole and exclusive discretion deems necessary or desirable for their health, education, comfort, and general welfare, taking into consideration the standard of living to which they are accustomed at the time of Grantor's death. [emphasis supplied]

Mrs. Ulery died on June 17, 1982. In the wake of subsequent disputes concerning the administration of the trust assets, notably a home where one of them lived, between her two daughters and Robinson, they brought the instant action to cancel Trust II on the grounds (a) that it had been the product of his undue influence and (b) that it was unenforceably indefinite. After a non-jury trial, the court entered judgment for Robinson and the daughters have taken this appeal. We strike the clause of the trust which we find rendered it impermissibly vague, but otherwise affirm.

I

We first find no error in the trial judge's rejection of the claim of undue influence. We agree that Robinson's conduct in procuring the 1981 trust document fulfilled virtually every one of the elements of procurement outlined in In re Estate of Carpenter, 253 So.2d 697 (Fla. 1971), thus giving rise, in the light of the confidential relationship he bore to her as her nephew and trustee, to a presumption of undue influence. We likewise do not recommend that an attorney, as did the one involved in this case, draft a dispositive instrument on instructions solely from an interested intermediary without ever seeing or speaking to the settlor or testator whose property is involved. Nonetheless, since there is substantial evidence to support it, we cannot interfere with the finding that, even considering *877 these factors, the 1981 trust was the product of Mrs. Ulery's own unimpeded will. In re Estate of Carpenter, supra; Briscoe v. Florida National Bank of Miami, 394 So.2d 492 (Fla. 3d DCA 1981); Laufer v. Norma Fashions, Inc., 418 So.2d 437 (Fla. 3d DCA 1982).

II

We cannot, however, similarly agree with the conclusion that, as drafted, the 1981 trust may be permitted to stand. To the contrary, it is clear that that portion of the designation of beneficiaries which permits the trustee to make distributions to such "others as the Trustee in his discretion may deem appropriate" does not identify any particular entity, person or class, the members of which can enforce the trust. It must therefore be deemed void for indefiniteness. In re Estate of Kradwell, 44 Wis.2d 40, 170 N.W.2d 773 (1969) ("legacy in trust for heirs, legatees, and such other persons [executrix] may deem deserving and for benevolent objects" void); Moskowitz v. Federman, 72 Ohio App. 149, 51 N.E.2d 48 (1943); In re Dormer's Estate, 348 Pa. 356, 35 A.2d 299 (1944); Fitzsimmons v. Harmon, 108 Me. 456, 81 A. 667 (1911); G. Bogert, Trusts and Trustees, §§ 161 n. 16, 162 n. 57 (rev. 2d ed. 1979); 2 A. Scott, The Law of Trusts § 122 (1967); 1 Restatement (Second) of Trusts § 122 (1959); see Estate of Stewart v. Caldwell, 271 So.2d 754 (Fla. 1973); Railey v. Skaggs, 220 So.2d 689 (Fla. 3d DCA 1969).

While this determination is virtually self-evident, what should legally follow from it is not nearly so clear. In several cases, indefiniteness in the dispositive provision of an instrument has been held to invalidate the entire trust it purports to create.[6]In re Estate of Kradwell, supra.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Lacava v. Oleksyk
M.D. Florida, 2023
Megiel-Rollo v. Megiel
162 So. 3d 1088 (District Court of Appeal of Florida, 2015)
Davis v. Rex
876 So. 2d 609 (District Court of Appeal of Florida, 2004)
Rollins v. Alvarez
792 So. 2d 695 (District Court of Appeal of Florida, 2001)
U.S. v. Kattar
D. New Hampshire, 1999
United States v. Kattar
81 F. Supp. 2d 262 (D. New Hampshire, 1999)
McLemore v. McLemore
675 So. 2d 202 (District Court of Appeal of Florida, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
469 So. 2d 874, 10 Fla. L. Weekly 1209, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kunce-v-robinson-fladistctapp-1985.