In Timmons v. Ingrahm, 36 So. 3d 861 (Fla. Dist. Ct. App. 2010), the testator’s will created a marital trust and a family trust. The spouse was given a 5 and 5 withdrawal power in the marital trust and the co-trustees, one of whom was the surviving spouse, had a power to invade principal for the spouse. At the spouse’s death, any remaining principal is to be added to the family trust which is then to be divided into shares for the testator’s children and deceased children leaving issue living at that time. The will defined the term “children” to include the testator’s adopted children and the children of the surviving spouse whom the testator never adopted. The spouse also had a special power of appointment over the family trust allowing her to appoint the trust property to the testator’s “living lineal descendants.” The spouse purported to exercise the power to appoint all of the trust property to her children. The testator’s children brought an action against the co-trustees challenging the purported exercise of the power of appointment. The trial court granted summary judgment for co-trustees which the Florida intermediate appellate court reversed on appeal, holding that the term “lineal descendants” should be accorded its technical meaning which does not include step-children.
Special thanks to William P. LaPiana (Rita and Joseph Solomon Professor of Wills, Trusts,and Estates, New York Law School) for bringing this to my attention.
