Cessac v. Stevens

127 So.3d 675 (2013)


The decedent died in January 2011. Her will devised $5,000 to Peeples and devised 'the rest and remainder of [her] estate, both personal and real property' to Cessac (D). The will also included a provision stating: Included in my estate assets are the STANTON P. KETTLER TRUST, FBO, SALLY CHRISTIANSEN, under will dated July 30, 1970, currently held at the Morgan Stanley Trust offices in Scottsdale, Arizona, and two (2) currently being held at Northern Trust of Florida in Miami, Florida. The will did not contain any other references to the trusts, nor did it mention any powers of appointment held by the decedent. The trust included a provision authorizing the decedent to direct who would receive the assets in the trust upon her death. If the power was not exercised the trust was to be divided into equal shares so that there shall be one share for each child of my daughter who is then living and one share for each child of my daughter who has predeceased her but is represented by issue. Nearly identical language was included in the two other trusts of which the decedent was a beneficiary. The decedent's will was admitted to probate. Marcia Stevens (P), the decedent's daughter, filed a petition for declaratory judgment, construction of the will, and other relief. P sought a declaration that the assets in the trusts are not the property of the estate because the decedent's will did not properly exercise the powers of appointment granted by the trusts. Thus, the assets in the trusts would be distributed to P, and the decedent's son, Christopher Evans rather than to D. The court ruled for P. The court reasoned that the decedent's will did not include a valid exercise of the powers of appointment provided in the trusts because it 'failed to reference the power of appointment in the Trusts as required by the grantor.' D appealed.