HomeMy WebLinkAbout1238 There are few Florida cases dealing with thz termination of
trust, however, in the case of First National Bank of Miaini v. Kerness,
Fla., 142 So 2d. 777, the Third District Court of Appeal appears to
recognize the general rule that if some of the beneficiaries refuse
to consent to the revocation or madification of the trust, or are
under an incapacity, or are not ascertained, or are unborn, the settlor
cannot revoke the trust although the other beneficiaries consent. In
Kerness, the Court held that under the terms of the trust, ,
"...Kerness was the beneficiary and her infant child
and the appellees Stuart Allen Rado and Jackie Lynn
Gugman were contingent beneficiaries. The result ~s '
that, in the light of the facts as they appear from
the record, the trust executed by the appe?lee Kerness
on Jtiine 10, 1960, is irrevocable. All interested
parties have not applied for its dissolution; the designs
and objects of the trust scheme have not been practically
accomplished; all the interests created by it have not_
vested; all the parties beneficially interested do not
desire its termination; the trustee has not assented
to its termination. Further, there is a person, the
infant child of the appellee Kerness, who is interested
therein but who was not before the Court." .
, There are some distinguishing factual ~ifferences between
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Kerness and the matter-presently under consideration, however, these
do not effec~ the underlying principal of lai,~. This court determines
th~ rule of law in Florida to be that settlors of a trust cannot revoke
the trust, if they have not reserved a power of revocation, unless all
of the beneficiaries consent. If some of the beneficiaries refuse to
consent to the revocation of the trust, or as in the case under con-
siderat ion, are under an incapacity, or are not ascertained, or are
unborn, the settlors cannot revoke the trust although the other bene-
ficiaries consent.
~ Applying this principal of law to the second question raised
by the Trustee, the Court determines f:hat Amendment No. 1 to the Trust
is not effective legally in view of the limitation upon the right of
revocation or termination of the trust prior to ten (lOj y~ears of the
date of the Trust, as provided therein. The provision of Amendment
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