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Can an Oral Will or Trust be Enforced in Florida?


Every state has developed their laws regarding wills and estates independently of one another – that means that each state will have different rules. This is why it is so imperative to check and make sure that the estate plan and documents you have in place are going to work within the state that you plan to live in for the rest of your life. Florida is one of the most popular states to retire to – so if you find yourself a retiree on our Suncoast, it is essential to understand the Florida law regarding wills and estates.

No Oral Last Will and Testament

One of the cardinal rules of wills and estates law in Florida is that these documents must be in writing, personally signed by the testator (person writing the will) and signed in the presence of at least two witnesses. These requirements clearly cannot be met via a strictly oral will, which means that the Florida probate court does not recognize oral wills.

An oral trust – however, may be a different story. Florida statute 735.0407 does, expressly, allow for trusts and could potentially allow for an oral trust, so long as the creation of the trust and the trust terms are established by “clear and convincing evidence.”

Proving that an Oral Trust Exists

Explaining the mechanics of how an oral trust may be established is best done by discussing some example scenarios. So, first, a hypothetical situation: Let’s say that Adam gave Becky $3,000. He explains to Becky that Becky’s young daughter, Camilla, means a lot to his old soul and he wants the money to benefit her and go toward paying for the young girl’s college tuition when she grows up. Instead of following Adam’s wishes, Becky goes and spends the money on a luxury vacation for herself.

A Florida court could construe the above as a breach of an oral trust. That a grantor (Adam) gave property to Becky as a trustee for the benefit of a third party (Camilla). Becky’s disregard of Adam’s instruction and use of the money in a contradictory way, for the benefit of herself, would have been a breach in such fiduciary duty as trustee. In this situation, if accepted by the court as a breach of an oral trust, Camilla could be successful in a suit against her mother for breach.

Now a real-life example.

Calderon v. Vazquez

In 2018 Florida’s Third District Court of Appeal heard the case of two brothers. The history – a man named Rene Vazquez took out a $120,000 life insurance policy for himself, and designated his brother as beneficiary. However, he told Juan that those proceeds must be held in trust for the benefit of his son and wife. This was done because his wife and son lived out of the U.S., in their native Bolivia. Rene also signed a Bolivian will which stated that he had taken out a life insurance policy with the express purpose of the proceeds benefiting his wife and son.

When Rene passed away, the $120,000 insurance policy was paid out to the beneficiary on file – the brother, Juan. Juan did use half of the insurance money to pay for Rene’s son’s college tuition. However, Juan took the other half of the money and used it for himself to fund his own house renovation. Rene’s second son demanded that Juan hand over the remainder of the insurance money in order to fund his own college tuition, and Juan refused.

The second son sued his uncle and the court of appeal ruled that the issue at hand was whether Juan had become a trustee over the insurance policy funds. Because Florida law recognizes oral trusts that are proven by clear and convincing evidence, the appellate court held that the second son was due a claim for relief.

Contact Suncoast Civil Law

The law is complex, nuanced, and ever changing. The experienced Sarasota wills & probate lawyers at Suncoast Civil law can help you navigate through any estate building or probate litigation issue with confidence. Contact our office today.