Blogs from September, 2014


Florida Statute § 736.0406 Effect of fraud, duress, mistake, or undue influence.— If the creation, amendment, or restatement of a trust is procured by fraud, duress, mistake, or undue influence, the trustor any part so procured is void. The remainder of the trust not procured by such means is valid if the remainder is not invalid for other reasons. If the revocation of a trust, or any part thereof, is procured by fraud, duress, mistake, or undue influence, such revocation is void.

In 2006, the Florida legislature passed into law the new Florida Trust Code. Of the numerous provisions codified into statute under Chapter 736, about 40% were found in prior Florida law, while roughly 60% were based on the Uniform Trust Code, a non-binding, model legal code utilized to form the basis for various state laws throughout the country.  Although comprehensive in scope, Chapter 736 does not purport to address every potential question of Florida trust law.  Instead, § 736.0106 specifically provides that the Code is supplemented by the common law of trusts and by principles of equity.

For litigants who wish to challenge the validity of a trust or a specific portion of a trust procured by fraud, duress, mistake, or undue influence, the Trust Code’s specific provision that courts should look to common law, or judge-made rules and principles, and principles of equity are extremely helpful. This means that the Florida Trust Code has built-in flexibility to enable courts to address the endless unique methods utilized to procure an invalid trust through undue influence, fraud, or other means.  Did someone in a position of trusts, such as a caretaker or relative use his or her influence over an elderly person to procure a trust contrary to the settlor’s true intent?  Was the trust procured at a time when the settlor was suffering from a condition affecting his mental capacity?  Does the person who procured the invalid trust benefit substantially, contrary to the settlor’s prior estate plan?  The Florida Trust Code provides the basic tools to enable litigants to challenge invalid trusts and correctly assumes that one-size of undue influence or fraud does not fit all situations.

If you believe that someone has procured a trust through undue influence or fraud, contact the attorneys at Adrian Philip Thomas for a consultation.


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