december 2012 - Hillsborough County Bar Association

JERVIS ANDJASSER JUXTAPOSED: TESTAMENTARY CAPACITY IN GUARDIANSHIP
Real Property Probate & Trust Section
Chairs: Eric Page, Hill Ward Henderson; and Katie Everlove-Stone, Everlove Legal, PLLC
Can a person under a
guardianship create or
amend a trust? That is
the question posed by
two recent Florida cases, Jervis v.
Tucker and Jasser v. Saadeh. 82 So.
3d 126 (Fla. 4th Dist. Ct. App. 2012)
and Case No. 4D09-3974 (Fla. 4th
Dist. Ct. App. July 18, 2012).
In Jervis, Bernice J. Meikle was
under a plenary guardianship with
her brother serving as her guardian.
Prior to her guardianship, Meikle
executed a revocable trust. After
the imposition of the guardianship,
Meikle signed an amendment to
her trust that drastically changed
the disposition of her estate. After
she died, the beneficiaries under
the original trust sued to have the
amendment declared void, arguing
that she was incapacitated at the
time it was signed. The guardian,
who stood to benefit from the
amendment, argued that although
she was under a guardianship at the
time the amendment was signed,
Meikle had the testamentary
capacity necessary to execute the
trust amendment.
Under the terms of the original
trust, if there was a question
of capacity, the trust could be
amended if the trustee received
opinions from two licensed
physicians who have examined the
grantor. Here, the trustee received
opinions from Meikle’s treating
physician and from a licensed
nursing home
health care
administrator that
Meikle had
testamentary
capacity when the
amendment was
signed. The court
held that the
second opinion
from the nursing
home health care
administrator
did not qualify
as an opinion
from a “licensed
physician” and
concluded that
the trust
amendment
was invalid.
In the case of
Jasser v. Saadeh,
Karim Saadeh
was a widower in
his eighties who began dating a
younger woman. Saadeh loaned
money to his girlfriend, upsetting
his children. The children brought
a petition to determine him to
be incapacitated, and the court
appointed an emergency temporary
guardian. In the weeks that
followed, the parties reached
an agreement whereby the
guardianship petition would be
dismissed if Saadeh created a
trust with his children serving as
co-trustees. Saadeh was convinced
that this would be the best option
for him, so he signed the trust.
Of note in this case is that two
rounds of examining committees
were ordered. Five out of the six
examining committee members
found that Saadeh did not need a
guardianship and had full capacity.
Thus, the guardianship proceedings
were dismissed and Saadeh sought
to have the trust declared void.
The Jervis court used
testamentary capacity
to determine the validity
of the trust, and the
Jasser court used
contractual capacity
to determine the validity
of the trust. Why?
In ruling
on the issue
of whether
the trust was
valid, the court
determined that
because. Saadeh
was under an
emergency
temporary
guardianship
and his right
to contract had
been removed,
the trust
was void.
The
interesting
contrast
between these
two cases is
that in Jervis,
the court was
willing to
entertain the
argument that if testamentary
capacity could be shown, then the
trust amendment would be valid.
In Jasser, the court concluded that
the plain fact that a guardianship
was in place meant that any trust
signed by the ward was invalid
even though five out of the six
examining committee members
concluded that Saadeh had full
capacity when the trust was signed.
The Jervis court used testamentary
capacity to determine the validity
of the trust, and the Jasser court
used contractual capacity to
determine the validity of the trust.
Why? Reading these two cases
together begs the question, under
what circumstances can an adult
ward of a guardianship create or
amend a trust? This is certainly
one of life’s great mysteries.
Author: Katie Everlove-Stone,
Everlove Legal, PLLC
52 DEC 2012 - JAN 2013 | HCBA LAWYER