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Florida Probate Blog

Category: Trust Litigation

Testamentary Capacity: Do We Need Legal Reform?

Written by on Nov 11, 2008| Posted in: Estate Litigation

Previous blog posts have discussed the fundamentals of will contests in Florida. These actions occur when a will is offered for probate (See Post dated October 28, 2008 What is the Definition of Probate) which is always after the testator has died. One of the most common grounds for a person seeking to invalidate a will offered for probate is that the will was executed at a time when the testator (the person signing the will) lacked testamentary capacity. The legal standard for testamentary capacity is that the testator knew the nature and extent of his or her property, the natural objects of his or her bounty (property) and the contents of his or her estate plan. See, In re Estate of Tolin, 622 So.2d 988, 990 (Fla. 1993). Since the person signing the will isn’t alive to testify or be examined in order to determine testamentary capacity, the court […]

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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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Trustee’s Duties

Written by on Sep 16, 2008| Posted in: Estate Litigation

TRUSTEE’S DUTIES What is the legal duty of a fiduciary? The answer from Justice Cardozo is still quoted today:  “A trustee is held to something stricter than the morals of the market place.  Not honesty alone, but the punctillo of an honor most sensitive, is then the standard of behavior.” Meinhardt v. Salmon, 249 N.Y. 458, 464, 164 N.E. 545, 546 (1928).

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Florida Trust Modification: Trustee Has Standing to Reform and Modify Trust Language

Written by on Sep 16, 2008| Posted in: Trust Litigation

Trust Language Isn’t Set in Stone — Should the Nurse Get the Apartment? Maybe. The Trustee Has Standing to Argue She Should Via Reforming the Language of the Trust. Cecilia Reid was Edgar Sonder’s nurse for several years.  Being a responsible man, Edgar Sonder created a “pour over” trust in May 2000, naming himself as trustee.  (A “pour over” trust is a trust that is funded by assets “pouring over” from an estate, and is a common vehicle used in estate planning.) Later, Mr. Sonder amended the trust, naming Nurse Reid as its sole successor trustee.  The trust in its final version (Edgar Sonder amended the document twice before he died) included instructions on how his assets were to be distributed; several gifts were itemized. First, $31,000 was to be distributed among ten different charities (Art. II, section 1); second, and importantly, after the first gifts were completed, $125,000 was […]

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