Trust Reformation in Florida

PersanteZuroweste handles Trust litigation matters in Clearwater, St. Petersburg and Tampa. If you Trust dispute in Florida and believe you need legal assistance, please do not hesitate to contact our firm at (727) 796-7666.

Trust Reformation:

Have you ever said something that you thought came out right, but the person you were talking to completely misunderstood what you meant? Hopefully, you clarified what you meant during the conversation and cleared the air. 

Trusts can sometimes have the same problem. There are times when language of the Trust says one thing, but the creator of the trust really meant something different. Unfortunately, the creator of the trust is usually no longer alive to clarify what they meant.

In Florida there is a process to modify or reform the Trust to correct these types of mistakes. If a person believes that the trust does not reflect the intent of the person creating the trust (often called a settlor), then the person can file a lawsuit asking the court to modify the trust.

What types of mistakes can be reformed?

There are many types of mistakes that can be corrected by reformation. A person must show that the accomplishment of the settlor’s intent and the terms of the trust were affected by a mistake of fact of law.

The most common cases of reformation occur when there is a mistake as to the beneficiaries of the Trust. So, if there is a drafting error that affects the beneficiaries of the trust, a reformation action may be appropriate.

Who can file the trust reformation lawsuit?

A person’s right to file a lawsuit is called “standing” in Florida.

The settlor or any “interested person” may file a suit to reform the terms of the trust. The term “interested person” is very broad. It includes any person who may reasonably be expected to be affected by the outcome of the particular proceeding.

And, a Trustee that believes the trust does not reflect the settlor’s intent, can file the action. This issue was recently decided by the Third District Court of Appeals in Reid v. Temple Judea, 994 So. 2d 1146, 1148 (Fla. 3d DCA 2008).

What is the burden of proof in a Trust Reformation action in Florida?

A person filing a lawsuit to reform a trust must prove the settlor’s intent by clear and convincing evidence.

What exactly does “clear and convincing mean?” The answer is that it is not entirely clear. It means that you must show that it is “substantially more likely than not” that the settlor intended the trust modification you are requesting.

To provide a frame of reference, a Plaintiff is held to a “preponderance of the evidence” standard in most civil lawsuits. That standard requires proving that something “more likely than not” occurred. If looking at it as a percentage, the preponderance of the evidence standard requires you to prove that there is at least a 51% chance that you are correct. In criminal cases, the burden is “beyond a reasonable doubt,” which is as close to proving 100% as possible. The “clear and convincing” standard fits somewhere in between. There is no percentage comparison, but it must be proved by more than 51% and less than 100%. A safe estimate would be 75%.

Trust Modification:

In addition to Trust reformation, there are several different ways that a Trust can be modified. A trust may be modified by agreement. Additionally, a Court may modifiy a trust under specific circumstances.

Trust Modification by Agreement:

In Florida, a trustee and all qualified beneficiaries may unanimously agree to modify a trust. This is usually the most efficient way to modify a trust, because this process does not require extended litigation. Of course, it is easier said than done. If just one person disagrees, the trust cannot be modified by agreement.

This process is expressly codified in Florida Statutes Section 736.0412.

Judicial Modification of Trusts:

For trusts, a person may file a lawsuit asking the court to modify the trust under certain circumstances.

• When the purposes of the trust have been fulfilled
• When the purposes of the trust have become illegal, impossible, wasteful, or impracticable
• When circumstances that were not anticipated by the settlor has caused problems that would defeat or substantially impair the main purpose of the trust
• A material purpose of the trust no longer exists
• When the modification is in the best interest of the beneficiaries.

This process is expressly codified in Florida Statutes Section 736.04113 and 736.04115.

Contact Us:

The Persante Law Group brings actions against brokers and broker-dealers. If you believe that you may need legal assistance regarding a Florida securities litigation matter, please contact us at (727) 796-7666.

About PersanteZuroweste

PersanteZuroweste has established a reputation as prominent trial lawyers serving clients throughout Florida. Our office is conveniently located to the Clearwater, St. Petersburg, and Tampa Bay communities.