Can an Improperly Executed Trust Amendment Be Validated Under the Statute Permitting Reformation to Correct Mistakes of Law Affecting the Settlor’s Intent?

What happens if a trust is created but it was not properly signed by two witnesses? What if a Florida trust is not properly executed? Is a trust that is not properly executed in Florida still valid? Can an amendment’s improper execution be corrected under the statute permitting reformation of mistakes? If you are involved in trust litigation where a mistake was made in the execution of a Florida trust, you may want to read Kelly v. Lindenau, a May 17, 2017 Second DCA opinion.

Here, the validity of a trust amendment was in question. The trust amendment in the Florida probate case conveyed settlor’s residential property to a beneficiary. The issue was that the trust amendment was not signed by a second witness. Therefore, according to Florida trust law, it was not properly executed. The successor tustee brought action against the beneficiary in the aendment seeking declaration as to the validity of the trust amendment. The benefificary filed a counterclaim seeking reformation of the trust amendment, and the trial court ultimately granted the beneficiary’s counterclaim.

However, the Second DCA disagreed with the trial courts decision. The appellate court help that “amendment’s improper execution could not be corrected under statute permitting reformation of mistakes, and constructive trust was improper remedy for error in execution.” To read the entire case, click here.