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Florida Probate Blog

Category: Trust Litigation

Trust Reformation

Written by on Jun 23, 2010| Posted in: Trust Litigation

Breathing Life Into An Otherwise Unenforceable Trust Instrument The following is based on real events, only the names have been changed to protect the guilty.  Jane Settlor created her revocable trust in 2005, naming herself as the initial trustee and sole income beneficiary during her lifetime, and upon her death, the remainder of the trust estate is to be divided amongst numerous individuals (some family, some not), charities and a charitable foundation that she created.  The drafting attorney, John Lawyer, is also the nominated successor trustee and the CEO of Mrs. Smith’s charitable foundation. A couple years after executing her trust, Jane Settlor pulled out her estate planning documents to re-review her estate plan.  Upon reviewing her revocable trust, and to her surprise, she noticed that many of the residuary beneficiaries of her trust were people that she hardly knew at all, and should not have been included as beneficiaries […]

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Florida Trusts and Real Property

Written by on Jun 17, 2010| Posted in: Trust Litigation

What’s a beneficiary to do? Many people utilize revocable trusts in an effort to avoid probate.  Often, the primary asset of a revocable trust is real estate.  The person who signs the trust (Settlor) customarily chooses the individual(s) to serve as a successor trustee upon the Settlor’s death or incapacity. Once the Settlor dies and a successor trustee accepts the position, a set of laws mandates the trustee’s conduct under Florida law.  These laws are found in Chapter 736 of the Florida Statutes, also known as the Florida Trust Code.  In particular, sections 736.0801 (duty to administer trust), 736.0802 (duty of loyalty) 736.0803 (impartiality), and 736.0804 (prudent administration) are triggered.  The Florida Trust Code was modified substantially in recent years and the current version took effect on July 1, 2007.    

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Trust Reformation

Written by on Jun 29, 2009| Posted in: Trust Litigation

Does a Trustee, Acting Alone, Have Standing to Seek Trust Reformation? The enactment of Florida’s new Trust Code invited many unanswered questions, and the question of whether a trustee, acting solely in her capacity as trustee, has standing to seek reformation of a trust was presented to our appellate court in Reid v. Temple Judea, 994 So.2d 1146 (Fla. 3rd DCA 2007).  The case involved a trust executed by Edgar Sonder who named Ceclia as trustee.  On May 17, 2000, Edgar Sonder executed a trust naming himself as trustee.   After Sonder’s death, his estate was probated and finding trust funds insufficient to pay all of the gifts provided for in Sonder’s will, Reid moved to abate the enumerated pecuniary gifts proportionately. Reid also claimed that the apartment was a devise, not subject to abatement.

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Revocable Trusts and Undue Influence

Written by on May 29, 2009| Posted in: Trust Litigation

Court of Appeals Expands Reach of Genova There is growing concern over our legislature’s inability to make laws protecting the elderly and vulnerable against having their revocable trust funds taken from them during their lives. This is a topic I have previously discussed. (See blog dated September 25, 2008, Undue Influence and Trust Revocation.) The problems addressed in my earlier blog articles arise from the Florida Supreme Court’s opinion issued twenty-five years ago in Florida National Bank of Palm Beach County v. Genova, 460 So. 2d 895 (Fla. 1984). As is evident from the Fourth District Court of Appeals ruling this week in MacIntyre v. Wedell, (Fla. 4th DCA, 08-754), 34 Fla.L.Weekly D1011a (May 20, 2009), Genova is alive and will remain so unless and until our elected officials decide to change the law.

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Divorce Does Not Dissolve Beneficial Interest in Trust

Written by on Apr 29, 2009| Posted in: Trust Litigation

Court Refuses to Use Merger to Disinherit Former Spouse.What is the doctrine of merger? The doctrine of merger is set forth in the Restatement of (Third) Trusts §69, which provides that if the legal title to the trust property and the entire beneficial interest become united in one person, the trust terminates. The comments to this section of the Restatement also states that if by inter vivos transfer, will, or operation of law the entire beneficial interest in trust property passes to the trustee, the trust terminates and the trustee holds the property free of trust. Thus, if the sole beneficiary of a trust dies intestate and his interest passes to the trustee as his heir, merger occurs and the trust terminates. Similarly, if the trustee is also the life beneficiary of the trust, and if the sole remainder beneficiary, holding an indefeasibly vested remainder interest in the trust, assigns […]

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Substance over Form: What is necessary for a valid transfer of property into a trust?

Written by on Apr 16, 2009| Posted in: Trust Litigation

Court holds trust instrument was effective in transferring both real and personal property to the trust.Prior to Florida’s adoption of the new Trust Code, which became effective on July 1, 2007, the common law held that in order for a trust to be created, the settlor was required to make a present and unequivocal disposition of property so that he or she is no longer vested with its full legal and equitable ownership. For example, it has been held in Florida that the failure of a settlor to execute a deed which conveyed real estate to the trustees of a trust precluded the creation of a “living trust” for the realty. Flinn v. Van Devere, 502 so.2d 454 (Fla. 3d DCA 1986). Although the new Trust Code is now effective, it provides that the common law of trusts and principles of equity supplement the Code, except to the extent modified […]

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Can a child be unintentionally excluded from a parent’s revocable trust?

Written by on Apr 16, 2009| Posted in: Trust Litigation

In Florida, and many other states, there are protections written into the probate code which purport to protect children from unintentional disinheritance by one or both of their parents. Florida’s pretermitted child statute is codified at Fla. Stat. §732.302 and is intended avoid an unintentional or inadvertent disinheritance of a child. Florida’s statute is modeled in part after the position adopted by the Restatement of Property and the Uniform Probate Code. The Restatement of Property provides: § 9.6 Protection Of Child Or Descendant Against Unintentional Disinheritance (a) A child of the testator, or under some statutes a descendant of the testator, who was not provided for in the testator’s will may be entitled to a specified share of the testator’s estate as provided by statute. Most of the statutes, including the Original and Revised Uniform Probate Code, only protect a child who was born or adopted after the will was […]

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Breach of Trust

Written by on Mar 6, 2009| Posted in: Trust Litigation

Third District Finds Miami Probate Court Erred in Requiring Litigants to Prove Undue Influence as Part of a Breach of Fiduciary Claim. Court Finds Lawyer Used Client’s Money as His Own “Piggy bank.” On February 25, 2009, the Third District Court of Appeals released its much anticipated opinion regarding the Brigham Tree Farms Trust litigation. Brigham v. Brigham, –So.2d–, 2009 WL 454492; (Fla. 3rd DCA, Feb. 25. 2009), 34 Fla.L.Weekly D443b involved, in part, a dispute over the trust assets which originated as a the multimillion dollar tree farm encompassing around 800 acres of land in western North Carolina. In order to understand the facts of the case, you will probably need to make a family tree outlining the various parties and there relevance in connection with EFP Brigham and his wife Marion, and the table consanguinity:

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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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Trust Litigation and Forum Non Conveniens

Written by on Dec 17, 2008| Posted in: Trust Litigation

Second District Court of Appeals Finds Old Trust Code Inapplicable to Action Based on Undue Influence and Breach of Fiduciary Duty and Notes Distinction Between Concepts of Venue and Jurisdiction Frequently, when representing trust beneficiaries or trustees, I encounter a defensive argument that Florida isn’t the proper venue for the trust litigation. Venue is the legal concept of the appropriate location for a lawsuit to be heard by a Court. Venue is a concept distinct from jurisdiction, which focuses on the authority of a court to hear a particular case. Venue is concerned with the geographical location of the court where a lawsuit is commenced. However, unlike personal jurisdiction, there is no constitutional requirement for proper venue in order to have a valid judgment.

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