In the Florida case of Jervis v. Tucker, 37 Fla. L. Weekly D349 (Fla. 4th DCA 2012)
Bernice J. Meikle executed a revocable trust agreement in 1991, which she subsequently amended by executing a first amendment. Her trust, as amended by the first amendment,
provided that Meikle's power to revoke or amend the trust would be suspended upon her being "adjudicated incapacitated by a court of appropriate jurisdiction." The trust further provided that Meikle's powers could be restored by an order of an appropriate court having jurisdiction over Meikle, or upon the issuance and receipt by the Trustee of a written opinion from two licensed physicians after their examination of Meikle.
Meikle was adjudicated incapacitated in 2000. On December 27, 2001, Meikle executed a second amendment to her trust without obtaining a court order authorizing the amendment or restoring her capacity to amend the trust,and without written opinions from two licensed physicians.
The second amendment attempted to reallocate the distribution of her assets. Meikle died in 2007 and the second amendment to her trust was subsequently challenged by beneficiaries under her first trust amendment. In granting a motion for summary judgment, the trial court ruled that the second amendment was "void and of no legal effect." On appeal, Appellant argued that the record evidence showed that Meikle did not lack testament capacity when she executed the second amendment in 2001. The Fourth District found that the plain meaning of the trust agreement, as amended by the first amendment, required Meikle to either have her capacity restored by the court or through the written opinion of two licensed physicians.
Although the trial court had judicially restored certain of Meikle's rights before her death, it had not restored her rights concerning her property. Moreover, at the trial level, Appellant only offered the opinions of one licensed physician in support of his argument that Meikle had testamentary capacity. Although Appellant also offered the opinion of a licensed nursing home health care administrator, the Fourth District noted this witness, even though possessed of expert experience, was without a physician's license.
Therefore, because the unambiguous provisions of the trust had not been met, the Fourth District affirmed the trial court's ruling that Meikle lacked the requisite testamentary capacity to execute the second amendment to her trust.
It is important to understand and comply with the terms of the trust when making changes. You not only have to comply with the trust but with state laws that may override the terms of the trust. In this case, the Ward did not have their ability to deal with property restored by the court nor did they have two doctors state that she was not incapacitated. Even with two doctors the court order determining incapacity would have seemed to have not restored the power to deal with property including her trust.