Florida Statute 736.0415: Can an Improperly Executed Trust Amendment Be Validated Through Reformation?

Was your dad’s trust executed despite an error in drafting? Was a required signature to make a Florida trust valid forgotten? Do you know what remedies the West Palm Beach probate court might have under such circumstances? You may want to look at the court’s powers of reformation. Take a look at what happened in this recent case out of Florida’s Second District Court of Appeals.

Probate lawyers know that, in some special circumstances, the courts may edit a Florida trust, even though it had been executed and the donor is deceased. This can happen when an error by draftsmen may have made the document stray from the donor’s original intent. Do you know how to prove this intent when the donor has already passed away? When a court feels it is appropriate, it may reform a trust or other document to conform to the true meaning given to it by the donor originally. Have you read Fla. Stat. 736.0415 which may allow reformation? Experienced Palm Beach probate lawyers know how to use courts effectively and bring about reformation, when necessary, to effectuate the intent of a donor. Did you know that if a court denies such ability when cause exists, this may be appealable?

Kelly v. Lindenau  was a March 17, 2017 Second DCA opinion regarding a trust amendment and a final judgment reforming it. Here, the trial court granted the decedent’s girlfriend, Lindenau, a final judgment reforming a trust and required the trustee to transfer title to real property to Lindenau, who was the trust beneficiary of the property. The trust amendment that was reformed, devising the property to Lindenau, was executed in the presence of two witnesses but was ONLY signed by ONE of the witnesses, not both. Lindenau argued that the error in failing to have two witnesses sign the amendment was a mistake of law. The decedent’s children argued that the amendment was invalid because it was not executed in accordance with Florida Law. According to Florida Statute 736.0403(s)(b), the testamentary aspects of a revocable trust are invalid unless the trust document is executed by the settlor of the trust with the same formalities as are required for the execution of a will. The Florida Probate Code requires that wills must be signed in the presence of two attesting witnesses and that those attesting witnesses must themselves sign the will in the presence of the testator and of each other. Therefore, the same is required for Florida trusts. Ultimately the court held that the trial court erred in applying Florida Statute 736.0415 to reform the amendment because the amendment was not validly executed. To read the entire case, click here.