               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED

                                               IN THE DISTRICT COURT OF APPEAL

                                               OF FLORIDA

                                               SECOND DISTRICT

MARGUERITE VIGLIANI; GLORIA                    )
VIGLIANI; SYLVIA VIGLIANI; MARIO A.            )
VIGLIANI; LINA CLARK; ALESSANDRA               )
CLARK BENSON; CAMILLA CLARK;                   )
JULIA CLIVE; and PIA CLIVE,                    )
                                               )
              Appellants,                      )
                                               )
v.                                             )        Case No. 2D14-4595
                                               )
BANK OF AMERICA, N.A., in its capacity         )
as trustee for the Mario Vigliani              )
Revocable Living Trust,                        )
                                               )
              Appellee.                        )
                                               )

Opinion filed March 9, 2016.

Appeal from the Circuit Court for Sarasota
County; Deno G. Economou, Judge.

Susan E. Stenger, Brian D. Bixby, and
Melissa E. Sydney of Burns & Levinson
LLP, Boston, Massachusetts, for
Appellants.

Bernard A. Jackvony of Pannone Lopes
Devereaux & West LLP, Boca Raton; and
John R. Hargrove of Hargrove Law Group,
Boca Raton (withdrew after briefing), for
Appellee.

ALTENBERND, Judge.

              The appellants in this case are the children and grandchildren of Mario

Vigliani, who is the deceased settlor of the trust that is at the center of this dispute.
When this lawsuit commenced in the trial court, Maryann Vigliani, the wife of the settlor,

was a co-trustee along with the Appellee, Bank of America, N.A. Unfortunately, Mrs.

Vigliani died following the recent oral argument in this case, and the bank is now the

sole trustee. The children and grandchildren are the beneficiaries of the "Family Trust,"

and we will refer to them as "the Beneficiaries." We will refer to the bank as the

"Trustee."

              The very narrow issue presented by this case is whether the terms of the

settlor's revocable living trust required the funding of the Family Trust at the time of the

settlor's death with $3.5 million, $5 million, or perhaps with some other amount. The co-

trustees filed an action for declaratory relief, and the Beneficiaries fully cooperated to

obtain a judicial determination at summary judgment. The trial court decided that the

Family Trust should be funded with $3.5 million, which would increase the marital share

payable to the wife outside of the Family Trust. 1 On de novo review, we conclude that

the trial court erred in establishing this amount.

              The Beneficiaries would have this court hold that the amount payable to

the Family Trust must be $5 million. In reviewing the trust agreement, and specifically

Article VIII and the "Statements of Intentions" therein, we are unconvinced that this

court can safely set the amount at $5 million based on the record before us. If in fact

the co-trustees filed an estate tax return in which they utilized a $5 million estate tax



              1Mrs. Vigliani was not a party in her own right in the trial court. From the
record, we believe that a transfer of the trust funds to Mrs. Vigliani did not occur prior to
her death and that her estate is not a necessary party to this appeal. Whether her
estate may become a necessary party in the trial court will be a matter for that court to
consider.

                                            -2-
exemption, the Beneficiaries may be correct in their position. Because the "Statement

of Intentions" played no role in the trial court's decision, we simply are not confident that

this record allows us to resolve a question that appears to involve significant tax issues

upon which the parties have not stipulated or presented undisputed evidence.

Moreover, the actual division of the trust depending on the circumstances at the date of

the settlor's death would appear, under both the terms of the trust and statutory law, to

be a task for Bank of America to perform as trustee. See § 736.0801, Fla. Stat. (2009).

Thus, on remand, it may be appropriate for the Trustee to make a new decision about

the division of the trust before the trial court is called upon to take any action.

Accordingly, we reverse the judgment and remand for further proceedings in the trial

court.

              The facts involved in this case, at least to this point, are undisputed and

relatively simple. The estate tax laws applicable to the facts, however, are complex.

Mario Vigliani created a revocable trust in 1994. He executed a "Restatement of the

Trust Agreement" (the "Restatement") in September 2009. The Restatement provided

that its interpretation and the meaning and effect of the terms of the Restatement would

be governed by the laws of Florida. Mario Vigliani died on May 1, 2010.

              Under the terms of the Restatement, upon Mr. Vigliani's death, the co-

trustees were required to make certain distributions and then divide the remainder of the

trust corpus, or the "Trust Estate," into two shares so long as Mr. Vigliani's wife survived

Mr. Vigliani. The first share is described as the "Marital Share," and the second share is

the Family Trust. Article VII of the Restatement describes the division. The Marital

Share is the balance of the Trust Estate after the share for the Family Trust has been

                                             -3-
funded. Article VII continues: "The Family Trust shall be funded with that portion of the

Trust Estate equal to the federal individual exemption amount, undiminished by any

estate, inheritance, succession, death or similar taxes, subject to the provisions of

Article VIII." (Emphasis added.)

              The content of Article VIII in its entirety, with the most important portions

underlined to assist the reader, states:

                      Economic Growth and Tax Relief Reconciliation
              Act Control Article Introductory Provision. Congress
              enacted the Economic Growth and Tax Relief Reconciliation
              Act (the Act), which has created some uncertainty as to the
              application and the extent of the application of the federal
              estate tax and the generation-skipping tax on an individual's
              estate. It is also possible that Congress will make further
              changes in the application of these taxes. The preceding
              Article reflects my plan for division into shares/trusts for my
              beneficiaries based on my death occurring at the time this
              Trust Agreement is executed. This Article is intended to
              control the actual division in shares/trusts depending on the
              circumstances at my actual date of death. It is, therefore,
              my intention that this Article at my death will control whether
              the disposition of the Trust Estate is as provided in the
              preceding Article or as specifically modified or provided in
              this Article. In this Article reference to "the Trust Estate" shall
              mean that portion of the Trust Estate disposed of by the
              preceding Article.

                      (1) Federal Estate Tax Repealed And Wife
              Survives. If the federal estate tax has been repealed and is
              not in effect upon my death, rendering no federal estate
              taxes due, and my wife shall survive the Settlor, then the
              Trust Estate shall be divided into two shares. One share
              shall be made up of the 2009 federal exemption amount of
              $3.5 million and one share shall be the remainder of my
              Trust Estate. The share made up of the 2009 federal
              exemption amount of $3.5 million shall be held in the Family
              Trust, as provided herein. The remainder share shall be
              distributed outright to my wife as the Marital Share, as
              provided herein.



                                             -4-
       (2) Federal Estate Tax Repealed And Wife Does
Not Survive. If the federal estate tax has been repealed
and is not in effect upon my death, and my wife shall not
survive the Settlor, then the Trust Estate shall be held,
administered and distributed under the Family Trust as
provided herein.

      (3) Statement of Intentions.

             (a) These are statements of my intentions:

                    (i) that my wife be adequately provided
             for during her lifetime;

                    (ii) that, after my wife's death, my
             children and a child's issue, if a child is
             deceased, be adequately provided for;

                     (iii) that the smallest amount of estate
             taxes (if any) be paid at my death and my
             wife's subsequent death;

                    (iv) that the smallest amount of
             generation-skipping transfer tax (if any) be paid
             at my death and my wife's subsequent death;

                    (v) if carryover basis is in effect at my
             death, the Settlor intends for his personal
             representative or trustee to allocate basis
             exemptions in a way to benefit his family as
             described above;

                   (vi) that no adverse tax consequences
             occur as a result of some subsequent act by
             Congress not anticipated by the Settlor[.]

       (4) Discretion to Deal with Carryover Basis. If
carryover basis becomes applicable, the Settlor grants to the
personal representative and/or trustee the authority to make
decisions and allocations of any exemptions associated with
carryover basis to benefit my Trust Estate consistent with the
statement of intentions of the Settlor as may be provided in
this Trust Agreement and to take any other actions which
would be beneficial in achieving these objectives.



                             -5-
              To understand Article VIII, one must understand the historical context in

which it was written. As explained in the parties' filings in the trial court and in this

court, 2 when the Restatement was executed, the applicable federal estate tax law was

provided for under the "Economic Growth and Tax Relief Reconciliation Act of 2001,"

Pub. L. No. 107-16, 115 Stat. 38 (2001). That law provided for a gradually increasing

estate tax exemption that peaked for individuals who died in 2009 at $3.5 million. Pub.

L. No. 107-16, § 521(a). The exemption was accompanied by a step-up in the basis for

any inherited assets, meaning that for purposes of income taxes on capital gains the

basis of these assets would be valued at whatever their fair market value was at the

time of the decedent's death. See 26 U.S.C. § 1014(a) (2001); cf. Pub. L. No. 107-16 §

541. The 2001 act also provided for the repeal of the estate tax for individuals dying in

2010. Pub. L. No. 107-16 §§ 501(a), 901(a)(2); see also Beim v. Hulfish, 83 A.3d 31, 38

(N.J. 2014) (discussing aspects of the 2001 act). The tax savings associated with this

repeal, however, were offset to some extent by the creation of a carry-over of the

decedent's basis on inherited assets, which in theory would ultimately increase income

tax paid by the inheritors on capital gains experienced upon disposition of the inherited

property. See Pub. L. No. 107-16 §§ 541, 542. 3 The act was also subject to sunset in


              2This   record contains no expert affidavit from an accountant or a tax
attorney concerning the tax issues involved in this case. The attorneys who have
briefed these issues have not supported their positions with citations to authoritative
treatises or similar information. The limited record compels this court to reverse the
order on appeal but does not allow us to make an alternative legal ruling.
              3The  2001 act provided that property acquired from an individual dying in
2010 "shall be treated . . . as transferred by gift" and that the basis of such property
would be the lower of either the adjusted basis of the decedent or the fair market value
of the property at the date of the decedent's death. Pub. L. No. 107-16 § 542.

                                             -6-
2011, which would have revived the estate tax law in existence prior to the effective

date of the 2001 act. Pub. L. No. 107-16 § 901; see also Beim, 83 A.3d at 38.

              In 2009, there were political pressures to revise the 2001 law, but no one

knew what the final outcome might be. Thus, Article VIII in the Restatement directly

addresses two possible outcomes in sections (1) and (2) and then provides a

"Statement of Intentions" to guide other possible outcomes.

              Congress did not allow the federal estate tax to be repealed. Instead, it

enacted the "Tax Relief, Unemployment Insurance Reauthorization, and Job Creation

Act of 2010," Pub. L. No. 111-312, 124 Stat. 3296 (2010). The new act created two

possibilities for the estates of individuals like Mr. Vigliani, who died in 2010. First, the

act created a default rule that voided the repeal of the estate tax provided for in the

2001 act and allowed for a continuation of the individual federal estate tax exemption

and a step-up in the basis for inherited assets. See Pub. L. No. 111-312 § 301(a), (b).

However, the 2010 act increased the individual exemption from $3.5 to $5 million so

that only estates larger than $5 million were required to pay an estate tax under the

default rule. See Pub. L. No. 111-312 § 302(a)(1). Second, the personal representative

of these estates could affirmatively elect to opt out of the default rule and to disregard

the provisions of the 2010 act repealing the 2001 act. See Pub. L. No. 111-312 §

301(c). If an estate opted out, the step-up in basis would not occur. Instead, the

carryover basis rules from the 2001 act would apply for inherited assets, resulting in a

likely increase in capital gains taxes paid by the parties inheriting the property. See id.;

see also 9 Susan Kalinka, Jeffrey W. Koonce, & Philip T. Hackney, La. Civ. L. Treatise,

LLC & P'ship: A Guide to Bus. & Tax Planning § 3:23 (4th ed. 2015).

                                             -7-
              From the pleadings in this case, it is our understanding that the co-

trustees filed an estate tax return relying on the default rule and the $5 million

exemption; that is, they did not affirmatively elect to opt out of the default rule. But the

record contains only an edited copy of that tax return, and we cannot establish from the

evidence in the record that the co-trustees in fact relied on the higher exemption.

              As presented by the parties, the issue in this case is whether the Family

Trust—which, according to Article VII of the Restatement, "shall be funded" with an

amount "equal to the federal individual exemption amount, . . . subject to the provisions

of Article VIII"—shall be funded with the $3.5 million exemption that applied at the time

the Restatement was executed or the $5 million exemption that applied at the time of

Mr. Vigliani's death. The Trustee argues that the trial court correctly determined that the

Family Trust should be funded with $3.5 million, the exemption available when the

Restatement was executed in 2009, because language in Article VIII makes clear that

Mr. Vigliani intended the amount to be determined as if he had died on the date the

Restatement was executed. The Beneficiaries argue that this interpretation incorrectly

isolates a single portion of Article VIII; fails to properly interpret the Restatement as a

whole, including the Statement of Intentions; and thus fails to honor the settlor's intent in

funding the Family Trust, which was largely to "avoid paying estate taxes to the extent

possible."

              The trial court's order does not contain any extensive explanation of its

decision to grant the Trustee's motion for summary judgment. The court did, however,

explain its reasoning on the record in open court; it essentially accepted the co-trustees'

argument. The trial court concluded that the reference in Article VIII to the "preceding

                                             -8-
Article, meaning Article VII, reflect[ing] my plan for division into share/trusts for my

beneficiaries based on my death occurring at the time this Trust Agreement is

executed," required the Family Trust to be funded with the 2009 exemption amount of

$3.5 million. As a result, the trial court had no occasion to consider the provisions in the

Statement of Intentions in section (3) of Article VIII.

              We review de novo the trial court's ruling, which was based on the

language of the Restatement. See Roberts v. Sarros, 920 So. 2d 193, 194-95 (Fla. 2d

DCA 2006). "[T]he polestar of trust interpretation is the settlor['s] intent." Id. at 195

(quoting L'Argent v. Barnett Bank, N.A., 730 So. 2d 395, 397 (Fla. 2d DCA 1999)). If

the language in the trust is unambiguous, the settlor's intent as expressed therein

controls and the court cannot rely on extrinsic evidence. Id. To determine the settlor's

intent, "the court should construe 'the instrument as a whole,' taking into account the

general dispositional scheme." Id. (quoting Pounds v. Pounds, 703 So. 2d 487, 488

(Fla. 5th DCA 1997)). It "should not 'resort to isolated words and phrases.' " Id.

(quoting Pounds, 703 So. 2d at 488). This is true whether the court is interpreting the

entire trust or only a specific clause. Bryan v. Dethlefs, 959 So. 2d 314, 317 (Fla. 3d

DCA 2007).

              The trial court erred when it isolated select provisions of Articles VII and

VIII and did not interpret that language in the context of the remaining provisions in

those two articles, in particular the Statement of Intentions in Article VIII. Simply put,

the settlor did not die at the time the Restatement was executed. As a result, it is clear

from the language of the Restatement that "the circumstances at [his] actual date of

death" were to be considered in dividing the trust. When read together, we conclude

                                             -9-
that the settlor is explaining in these two articles that he wants the Family Trust to be

funded with the federal individual exemption amount applicable in 2009 unless the

"circumstances at [his] actual date of death" required a different outcome. The four

sections in Article VIII give guidance to the Trustee as to what "circumstances"

concerned the settlor and what the settlor's intentions were as to those "circumstances."

It is obvious from the content of Article VIII that the primary circumstance creating

uncertainty for the settlor was the unresolved status of federal estate tax law.

              We note that although sections (1) and (2) in Article VIII illustrate the

settlor's concern with this uncertainty in the tax law, these sections are not directly

applicable to a reading of the Restatement in this case because the federal estate tax

was not repealed as provided for in the 2001 Act. See Pub. L. No. 111-312 § 301(a),

(b). Because the provisions on which the trial court focused do not specify the amount

of the share for the Family Trust once it was established that a major change in estate

tax law occurred in 2010, it is necessary to consider the Statement of Intentions in

making the division.

              From the arguments of both sides, it appears that "intentions" (i) and (ii)

do not involve circumstances that will be important in making the division. Fortunately,

the settlor's assets were sufficient to provide adequately for his wife during her lifetime

and presumably to provide for the Beneficiaries as well. Intention (iii) requires that the

"smallest amount of estate taxes (if any) be paid" at the settlor's death and that of his

wife. The Beneficiaries at least believe that a $5 million allocation will or has already

fulfilled this intention. This position is intuitively reasonable, but there is no evidence or




                                            - 10 -
stipulation in the record to confirm this belief. Given the complexity of these tax issues,

intuition may fail us.

               Intention (iv) requires one to consider "that the smallest amount of

generation-skipping transfer tax (if any) be paid" at the time of the settlor's death and

that of his wife. Again, this record does not safely establish the outcome that fulfills this

goal. We can make the same conclusion as to (v) and (vi). In particular, (vi) states the

settlor's general intent "that no adverse tax consequences occur as a result of some

subsequent act by Congress not anticipated by the Settlor." This may authorize the

Trustee to consider a broader array of tax issues, including income tax consequences

for the settlor's wife and the Beneficiaries, in determining the amount of the Family

Trust.

               Finally, section (4) of Article VIII gives the Trustee discretion to deal with

any applicable carryover basis. If the Beneficiaries are correct that the default rule and

the $5 million exemption applied, then seemingly no carryover basis would be

applicable. But again, from this record, we cannot determine what decisions the co-

trustees made or what decision the Trustee may need to make under section (4).

               We conclude that it is clear from Article VIII that other "circumstances"—

namely, significant changes in the applicable tax law—existed at the time of the settlor's

death that likely required funding the Family Trust with an amount other than the $3.5

million exemption available at the time the Restatement was executed. It was error for

the trial court not to consider Articles VII and VIII in their entirety in ruling on the parties'

motions for summary judgment. However, a proper resolution of this issue involves

significant and likely complex issues of tax law, which may include questions of fact that

                                              - 11 -
were not addressed by the trial court or agreed upon by the parties. We are not entirely

certain that $3.5 million and $5 million are the only two options available to the decision-

maker. As a matter of trust law, it seems that the Trustee should be given the

opportunity to exercise its fiduciary duties and to be the decision-maker on this issue.

Thus, we cannot hold that the Family Trust must be funded with the $5 million

exemption amount, and we must remand for a proper resolution. The parties, to their

credit, have cooperated fully in this case up to this point. With their continued

cooperation, this dispute should reach a speedy resolution on remand.

              Reversed and remanded.


SILBERMAN and SLEET, JJ., Concur.




                                           - 12 -
