Florida Trust Litigation 

Trust Contests are treated the same way as Will Contests in a lot of ways, but there are some significant differences between the two.  The Florida Trust Code, F.S. Chapter 736, governs most trust matters. 

Execution of Trusts and Resulting Enforceability

For a Trust to be enforceable, it must generally be executed by the settlor in the same manner and with the same formalities for execution of a Will.  See F.S. 732.502. F.S. 736.0403(2)(b).  There is an exception for Trusts that were executed prior to October 1, 1995, that do not comply with the provisions for execution of a will or the requirements for disposition of an interest in real property in which event the law is that the Trust is valid as to the disposition of tangible or intangible property but is invalid as to the disposition of real property.  It is therefore conceivable that a Trust executed prior to October 1, 1995, may be valid in one respect and not valid in another.

What are the Statutory Grounds to Contest a Trust?

The same statutory grounds that apply to contest of a will are available to contest a trust. Pursuant to F.S. 736.0406, fraud, duress, mistake, or undue influence may be asserted as grounds for contest.  See

https://www.flforeclosuredefensefirm.com/blog/will-contests-frequently-asked-questions

Can a Trust be Revoked?

It may be possible for a trust to be revoked under certain circumstances.  A trust can be revoked either in writing or by physical act.  For trusts that were created on or after July 1, 2007, a settlor may revoke or amend the trust so long as the trust does not expressly provide that it is irrevocable.

For trusts created before July 1, 2007, a settlor has the power to revoke the trust if the trust document gives that power or the settlor is the sole beneficiary. 

Lawsuits to Challenge Trusts Require the Filing of an Independent Action

Lawsuits seeking to nullify a trust are independent civil actions governed by the Florida Rules of Civil Procedure, not by the Florida Probate Rules. 

Where Should Lawsuits to Challenge Trusts be Filed?

The appropriate venue to file a lawsuit seeking to challenge a trust is where the beneficiary suing or being sued resides or has its principal place of business or the county where the trust has its principal place of administration.

Foreign Trusts & Jurisdictional Challenges

Sometimes trusts are executed outside of Florida which can create jurisdictional challenges.  Fortunately, pursuant to F.S. 736.0202(2)(a), many situations are covered that allow a Florida court to hear the dispute.  The court acquires personal jurisdiction over a trustee, trust beneficiary, or other person irrespective of whether he is a citizen or resident of Florida, if he or she, through an agent, engages in any of following acts related to a trust:

-Accepts trusteeship of a trust having its principal place of administration in Florida at the time of acceptance.

-Moves the principal place of administration of a trust to Florida.

Serves as trustee of a trust created by a settlor who was a resident of Florida at the time of creation of the trust or serves as trustee of a trust having its principal place of administration in Florida.

-Accepts or exercises a delegation of powers or duties from the trustee of a trust having its principal place of administration in Florida.

-Commits a breach of trust in Florida, or commits a breach of trust with respect to a trust having its principal place of administration in Florida at the time of the breach.

-Accepts payment from a trust having its principal place of administration in Florida.

-Performs any act or service for a trust having its principal place of administration in Florida.

-Accepts a distribution from a trust having its principal place of administration in Florida with respect to any matter involving the distribution.

Standing & Statute of Limitation Issues

Standing is required to maintain a lawsuit seeking to challenge a trust.  Standing is a sufficient stake in the outcome.  All “interested persons” have standing to sue in trust litigation however sometimes determining exactly who qualifies as an “interested person” can be challenging.  A beneficiary under the trust is generally considered to be an interested person and one who has standing.

There is a four-year statute of limitations is applicable to trust actions, however there is a provision that enables a trustee to shorten the 4-year statute of limitations to 6 months by sending a person a copy of the trust notice informing a person of the trust existence, the trustee’s name and address, and the time allowed to commence a proceeding. There is a presumption that a “trust notice” properly addressed, stamped, and mailed was timely received by the addressee.

“In Terrorem” Clauses are Unlawful

F.S. 736.1108 states that a provision in a trust that penalizes someone for contesting the trust is unenforceable for all trusts that were created on or after October 1, 1993.

Are Fees Recoverable in Trust Actions?

Yes, in some instances.  A trustee engaged in a lawsuit cannot appear pro se and representation by an attorney is required. F.S. 736.1006 allows for the assessment of costs and the court has discretion to “direct from what part of the trust the costs shall be paid.” Additionally, F.S. 736.1004 states that attorneys’ fees are assessable against a trustee for breach of fiduciary duty and permits the assessment of fees when any attorney has rendered services to a trust.  Similarly, F.S. 736.1005 provides for the allowance of legal fees by court order for services rendered to a trust. The statute applies to the fees incurred by a third party if the services benefit the trust. 

Contact a Florida Trust Litigation Lawyer

Florida Trust and Probate Litigation requires the use of a skilled advocate to aggressively represent your interests and protect your rights against unscrupulous family members and greedy parties.  If you are a party to a Florida Will or Trust Contest, call Miami trust litigation lawyer Andrew J. Pascale to help you better your legal footing.  This blog does not constitute legal advice and is for illustrative purposes only.