In a Florida Trust Lawsuit, Can Reformation of the Trust Occur When Amendments to the Trust Were Not Validly Executed?

In a Florida trust lawsuit, can reformation of the trust occur when amendments to the trust were not validly executed? NO! Kelly v. Lindenau, a March 17, 2017 Second DCA opinion, discusses this issue.

Here, the trial court granted the decedent’s girlfriend, Lindenau, a final judgment reforming a trust. The court 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.