Blogs from September, 2013


I Made a Mistake!

Particularly in their later years, people begin addressing how their assets will be distributed amongst their loved-ones.  Whether by creating a trust for the first time or by amending a previous one, people try to make sure that everyone they want to take care of after their death is actually provided for in their testamentary documents.  However, what happens if a mistake is found in trust?  What happens if that mistake is found after the testator passes away?  Is there any recourse provided by Florida Statutes or in case law that allows for some type of relief in such instances?

The Florida legislature codified the reformation of a trust instrument based upon a mistake in 2007 by the passing of Fla. Stat. 736.0415, which reads as follows:

Upon application of a settlor or any interested person, the court may reform the terms of the trust, even if it is unambiguous, to conform to the terms of 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.  

Although there is a lack of comprehensive case law that discusses this statute, the Court in Reid v. Estate of Sonder, 63 So.3d 7 (Fla. 3d DCA 2011), assessed such a request under Fla. Stat. § 736.0415 and stated as follows:

A trust with testamentary aspects may be reformed after the death of the settlor for a unilateral drafting mistake so long as the reformation is not contrary to the interest of the settlor.  However as we [the Court] also have recognized, the party seeking reformation at all times has the burden to prove, by clear and convincing evidence, that the trust, as written, does not reflect the settlor’s intent.  This standard is an intermediate standard of proof between the “preponderance of the evidence” standard used in most civil cases, and the “beyond a reasonable doubt standard” of criminal cases. . . .

Therefore, if substantial evidence exists that a mistake, either in the expression or the inducement of the Trust, was made by the testator, an interested person in the trust may request that the Court enter an Order reforming the trust so that it comports with the true testamentary intent of the testator even after his or her death. 

However, such a request is not something that can be done readily or easily; as such, you should contact an experienced probate and trust litigator if you have any questions or concerns regarding whether or not such a request can and should be made to the Court.


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