TRUSTS: GUARDIANSHIP: CIVIL PROCEDURE: SUMMARY JUDGMENT: ORDERS: RULES OF CONSTRUCTION: AMBIGUOUS ORDER: PAROL EVIDENCE: TRIAL COURT ERRED BY ENTERING SUMMARY JUDGMENT DETERMINING THAT STIPULATION AND GUADIANSHIP ORDER UNAMBIGUOUSLY PREVENTED MAKER FROM AMENDING HER TRUST: ON REMAND, TRIAL COURT SHOULD CONSIDER PAROL EVIDENCE

Whiting v. Whiting, ___ So. 3d ___, 40 Fla. L. Weekly D539 (Fla. 5th DCA February 27, 2015)

The mother created a trust, which provided for equal distributions to her three sons upon her death. Three years before she died, “concerns about [the mother’s] mental competency arose,” and two of her sons filed competing petitions for appointment as her guardian. Before a determination of mental capacity was made, the parties entered into a Stipulation for Limited Guardianship, which limited the mother’s ability to dispose of her assets. Although the trial court entered an order adopting the Stipulation, the mother amended her trust to make one of her sons the sole residuary beneficiary. After the mother’s death, the trial court entered summary judgment determining that the amendment was invalid because of the limitations imposed by the guardianship order. The appellate court reversed because the order was ambiguous. The order did not specify whether the guardianship was voluntary or involuntary. A voluntary guardianship requires a judicial determination of the ward’s mental competency, but there was no determination of competency in this case. An involuntary guardianship requires a judicial determination of the ward’s lack of capacity, but there was no determination of incapacity in this case. The lack of a judicial determination of incapacity pointed to a voluntary guardianship, but the lack of a certificate of competency from a physician and the mother’s inability to terminate the guardianship without a court order were inconsistent with a voluntary guardianship. To add to the confusion, the stipulation and order did not specifically address the mother’s ability to amend the trust, but it did prevent her from making gifts in excess of $1,500; however, the mother’s lawyer executed an affidavit stating that both she and he “rejected the inclusion of any language in the Stipulation and Guardianship Order that would limit her ability to alter her estate plan.” Based on these circumstances, a genuine issue of material fact existed whether the mother had the power to amend the trust, and the trial court erred by entering summary judgment setting aside the amendment. The trial court was directed on remand to consider parol evidence to assist in interpreting the Stipulation and Guardianship Order.

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