Blogs from July, 2011


Section 736.0415 of the Florida Trust Code expressly provides that unambiguous provisions of a trust may be reformed where clear and convincing evidence shows that the language of the trust does not reflect the settlor’s intent, even where the evidence regarding the settlor’s intent is contrary to the trust itself:

Upon application of a settlor or any interested person, the court may reform the terms of a trust, even if unambiguous, to conform the terms to the settlor’s intent if it is proved by clear and convincing evidence that both the accomplishment of the settlor’s intent and the terms of the trust were affected by a mistake of fact or law, whether in expression or inducement. In determining the settlor’s original intent, the court may consider evidence relevant to the settlor’s intent even though the evidence contradicts an apparent plain meaning of the trust instrument. See § 736.0415, Fla. Stat. (2010) (emphasis added).

The express purpose of section 736.0415 is to permit reformation of an otherwise clear, unambiguous written trust signed by a settlor where evidence exists that the “plain meaning of the trust instrument” does not evidence the settlor’s intent. A trust with testamentary aspects may even be reformed after the death of the settlor for a drafting mistake so long as the reformation is not contrary to the interest of the settlor. The reformation under the section is available for mistakes of law and of fact. Florida case law also supports reformation to cure scriveners or drafting errors. [See In re Estate of Robinson, 720 So.2d 540 (Fla. 4th DCA 1998)]. The party seeking reformation of trust with testamentary aspects has the burden to prove, by clear and convincing evidence, that the trust, as written, does not reflect the settlor’s intent.


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