Florida Probate Blog

Proving that a will was procured by the undue influence of another can sometimes be difficult.  Often, this type of conduct occurs in secret, away from the watchful eyes of family and loved ones and involves the victimization of an elderly, ill person at the hands of someone he or she trusts.  Florida law recognizes this realty and the legislature has provided a means by which plaintiffs may not only prove undue influence, but also shift the burden of proof so that that defendant must offer his own evidence. Fla. Stat. §733.107 provides that, when contesting the validity of a will, the burden of proof shifts.  First, the proponent of the will, i.e. the defendant, must establish that the will was properly executed.  If the defendant initially proves that the Will was signed and properly witnessed, then the burden to prove undue influence shifts to the plaintiff.  Fla. Stat. § […]

It has come to our attention that an individual claiming to be Attorney Adrian Thomas is contacting people around the country about buying and selling time shares.  This is a SCAM.  Do not give this individual any information about you or about your bank accounts.  The man calling leaves a message that he is “Attorney Adrian Thomas” calling about timeshares and leaves the following callback numbers:  321-200-0097, 321-250-6903, 321-250-9121.  Directions are sent to send money to the Dominican Republic via Western Union.   The matter has been reported to the Federal Bureau of Investigation and the Federal Trade Commission.  If you are contacted by someone claiming to be Attorney Adrian Thomas about a timeshare, please provide this office with the information so we can pass it along to the FBI. If you have lost money through this scam, please log on to www.ic3.gov to file a complaint with the FBI. Thank you to those of you who took the […]

Can a court consider extrinsic evidence when asked to modify a trust under the judicial modification statutes even if the trust instrument is unambiguous?  YES! Historically, common law rules of construction provided that the intent of a settlor of a trust should be ascertained from the “four corners” of the trust and that extrinsic evidence of the settlor’s intent should only be considered if there was an ambiguity in the trust instrument.  The effect of this common law rule was that a trustee or beneficiary seeking to modify the terms of the trust would only be permitted to do so if the court found that the trust, or a portion thereof, was ambiguous.  Absent ambiguity, the court was unable to consider any other evidence of the settlor’s intent and the beneficiaries were stuck with whatever the trust said on its face.  The old analysis changed when Florida adopted the Florida […]

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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 trust or 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 […]

People create trusts for a variety of reasons.  Some create them for creditor protection.  Others create them because they are concerned about providing the beneficiaries with large sums of money all at once.  Although these reasons may be valid and appropriate at the time that the trust is created, what happens if that purpose is no longer in existence?  What if there is a substantial change of circumstances that causes the trust to be inconsistent with the settlor’s purposes (i.e. to benefit the beneficiaries)? Fla. Stat. 736.04113 states, in relevant part, as follows: Upon application of a trustee of a trust or any qualified beneficiary, a court at any time may modify the terms of a trust that is not then revocable in the manner provided in subsection (2) if: The purposes of the trust have been fulfilled or have become illegal, impossible, wasteful, or impractical to fulfill; Because of […]

What rights does a divorced spouse have to inherit from a former spouse’s estate? Fla. Stat. § 732.703 became effective in 2012 and concerns beneficiary designations on life insurance policies, annuities, IRAs, 401ks and other employee benefit plans.  The statute is perceived as a legislative reaction to some decisional case law and also to the problem that surfaced when divorced clients never returned to their estate planning attorneys to revise their estate planning documents and beneficiary designations. The statute provides: § 732.703. Effect of divorce, dissolution, or invalidity of marriage on disposition of certain assets at death. (1)  As used in this section, unless the context requires otherwise, the term: (a)  “Asset,” when not modified by other words or phrases, means an asset described in subsection (3), except as provided in paragraph (4)(j). (b)  “Beneficiary” means any person designated in a governing instrument to receive an interest in an asset upon the death of […]

Can we agree to something else? The law in Florida is clear in its intentions to protect a surviving spouse from being disinherited.  Fla. Stat. 732.201-732.2155 specifies the applicable rules for a surviving spouse to claim the elective share, which essentially provides that a spouse is entitled to receive 30% of the decedent’s assets upon his or her demise.  This law effectively prevents a spouse from being completely disinherited. Additionally, “no contest” clauses are provisions in trusts that attempt to prevent or discourage beneficiaries from filing lawsuits relating to a trust by penalizing the beneficiary (typically by causing that beneficiary’s share of the trust to be forfeit).  However, Fla. Stat. 736.1108(1) provides that “no contest” clauses in trusts are unenforceable because they may wrongfully punish a beneficiary who is attempting to remedy the bad acts of another and/or effectuate someone true testamentary intent. However, can the settlor of a trust […]

In Florida, one of the pleading requirements for a Will Contest or Trust Contest is a general allegation in the complaint that the contestant renounces any benefit he or she receives under the challenged document. The “renunciation rule” is an equitable doctrine in Florida.  Fintak v. Fintak, 120 So.3d 177 (Fla. 2d DCA 2013).  It was originally established by the English ecclesiastical courts but has been interpreted by American courts to require that one who receives and retains a gift under a will is estopped to contest the validity.  Id.  In Barnett Nat’l Bank of Jacksonville v. Murrey, 49 So.2d 535 (Fla. 1950), the Florida Supreme Court articulated three reasons for the renunciation rule: (1) to protect a fiduciary in the event the contested document is held invalid; (2) to demonstrate sincerity of the contestant; and (3) to have the property available for disposition at the conclusion of the contest. Interestingly, […]

A No Contest Clause is a provision in a will or trust that penalizes an interested person who seeks to contest or challenge the validity of the will or trust instrument.  These clauses are sometimes referred to as in terrorem clauses.  Generally, a no contest clause penalizes a person contesting the will or trust by providing that the person loses all rights to receive any gift or devise under the will or trust if he or she contests its validity or challenges the terms of the instrument. Florida law invalidates no contest clauses in both wills and trusts.  Florida Statute section 732.517 provides that “[a] provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable.”  Similarly, Florida Statute section 736.1108 (1) provides that “[a] provision in a trust instrument purporting to penalize any interested person for contesting the trust instrument or […]