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Florida Probate Blog

Posts Tagged: Trust Litigation

Trust Revocation

Written by on Feb 20, 2009| Posted in: Trust Litigation

Can a joint and contractual trust be revoked by sole surviving settlor? Florida law recognizes that parties may execute joint and mutual testamentary instruments. One Florida court held that a joint and mutual will may be the product of a contract providing that it cannot be revoked except by the mutual consent of the parties and providing that it be binding on the survivor, and where the terms of the will clearly disclose that it is the product of such a contract, the will itself is sufficient evidence to establish the contract. See, In re Estate of Rowland, 504 So.2d 543 (Fla. 4th DCA 1987).

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Indispensible Parties in Trust Lawsuits

Written by on Feb 6, 2009| Posted in: Estate Litigation

Necessary and Indispensable Parties in Trust Lawsuits:  Second District Clarifies Rule in Trust Probate Dispute Who is a Necessary Party? The term “necessary party” has been defined in a variety of ways, but generally most litigators will agree that a “necessary party” is: (1) as a party whose rights and interests are to be affected by a court order; and (2) whose actions with reference to the subject matter of litigation are to be controlled by the court order; or (3) a person without whose joinder as a party an effective court order or judgment cannot be rendered in the plaintiff’s favor; or (4) A person who is materially interested in the subject matter of a suit and who will be directly affected by an adjudication of the controversy. Whatever definition one uses, it is undisputed and well-settled law that if a necessary party hasn’t been named in any kind of […]

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De Facto Trustee Doctrine Recognized

Written by on Jan 23, 2009| Posted in: Estate Litigation

Washington joins other states in growing trend The doctrine of de facto trustee is gaining popularity in its recognition by state court’s and trust and estate jurisprudence. A person is a de facto trustee where the person (1) assumed the office of trustee under a color of right or title and (2) exercised the duties of the office. A person assumes the position of trustee under color of right or title where the person asserts “an authority that was derived from an election or appointment, no matter how irregular the election or appointment might be.” A de facto trustee’s good-faith actions are binding on third persons. Because the purported successor trustee in Allen Trust acted as trustee and assumed its office through an appointment it reasonably believed to be effective, it was a de facto trustee and was entitled to compensation for its services. Washington recently joined the growing number […]

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What is a Resulting Trust?

Written by on Nov 10, 2008| Posted in: Trust Litigation

Resulting trusts are a fiction of the law that arises where property is transferred or acquired by one under facts and circumstances which indicate that the beneficial interest is not intended to be enjoyed by the holder of legal title. A case some readers may have read about in recent newspaper headlines involved a legal theory based on a resulting trust remedy. In City of Boston v. Roxbury Action Program, Inc., 68 Mass. 1101, 865 N.E2d 1140 (2007) the city of Boston became aware that a landowner, which was obligated to convey land to the city due to an inability to obtain a government commitment for housing development on property. The City went to Court claiming that the landowner was holding the property for the City under a resulting trust, since it wasn’t, in the city’s view, the parties’ intention for the landowner to hold the beneficial interest in the […]

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Trust Language and Settlor’s Intent

Written by on Oct 23, 2008| Posted in: Trust Litigation

Learn the Language: Fifth District Court of Appeals Reverses Probate Judge and Predicates Opinion On its Own Perception of Trust Language and “Settlor’s Intent”In Brown v. Miller, — So.2d —-, 2008 WL 4600940, 33 Fla.L.Weekly D2433c, Fla.App. 5 Dist., October 17, 2008 (NO. 5D07-1356, 5D07-1288) the Fifth District Court of Appeals reversed Orange County Judge Lawrence Kirkwood’s order which had invalidated a seven million dollar transfer from a testamentary trust to its lifetime beneficiary. The Wife Elinor Miller set up a trust naming her husband Bill as the trustee and lifetime beneficiary (the “Elinor Miller Trust”). After her death the assets remaining in the trust (after her charitable bequests and distributions to family members) were divided into three separate sub-trusts, designated as Trust A-1, Trust A-2 and Trust B with each serving a distinct purpose. The Elinor Miller Trust provided that the Trustee should pay Bill the income from A-1 […]

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Undue Influence and Trust Revocation

Written by on Sep 25, 2008| Posted in: Trust Litigation

Is Florida legislation needed to address the presence of undue influence in trust revocation situations involving vulnerable elderly adults? It is no secret that Florida is home to a geriatric population, many of whom are vulnerable to exploitation due to the infirmities of age and diminished mental capacity.  A recent study discovered that the prevalence of dementia is estimated to double every five years in the elderly, growing from a disorder that affects 1 percent of persons 60 years old to a condition afflicting approximately 30 percent to 45 percent of persons 85 years old.[1] Many Floridians who have revocable trusts as an aspect of their estate planning are susceptible to what I consider to be an area of concern as to the existing status of the law as it stands in Florida.  Specifically, I am concerned that existing decisional case law in Florida allows for persons, whose capacity to […]

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Florida Uniform Trust Code

Written by on Sep 24, 2008| Posted in: Trust Litigation

FLORIDA UNIFORM TRUST CODE Is it Time for Trusts to Take a Trip to the Repair Shop?  Florida Court Gives Liberal Application of New Trust Code Provision Allowing for Repair of Mistakes in Trust Language Upon Application of an Interested Person. The Florida Legislature’s adoption of the Uniform Trust Code fostered a welcome change to the way mistakes in trust documents are now treated. Formerly, beneficiaries were shackled by mistakes made by their relative in drafting provisions of their trust documents, sometimes neglecting gift or similar provisions when there was clear evidence that the relative intended to give someone an inheritance. The Reformation Now, the new trust code under section 736.0415, an interested person may ask the Court through probate litigation, to reform the terms of a trust to conform to the settlor’s intentions if it is proved by clear and convincing evidence that both the accomplishment of the settlor’s […]

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Contingent Beneficial Interest in Express Trust

Written by on Sep 22, 2008| Posted in: Trust Litigation

Can a Trust Exist Where the Beneficiaries’ Interest Are Contingent on Surviving the Settlor or Other Events? This interesting question was raised not only discussions leading up to the drafting of the Third Restatement of Trusts, but also in recent case law. For example, in Hoggan v. Hoggan, 169 P.3d 750, 588 Utah Adv. Rep. 24, 2007 UT 78 (2007) the Court was presented with the following: The Eleventh Hour Amendment Shortly before she passed away, Leona Hoggan amended a trust that she had created some fifteen years earlier. The amendment provided that, upon Loena’s death, her son John would be forgiven a loan Leona had made to him, rather than receiving a one-third interest in the trust property.

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