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Reformation of a Florida Will

Imagine the disappointment brought about when the beneficiary of a will learns, after the passing of his beloved grandfather, that he was disinherited from a specific devise of cherished family heirloom long-promised to him by grandfather, because of a mistaken belief that said grandson had died. Is there a remedy under Florida law?

Effective July 1, 2011 new legislation went into effect in Florida allowing for reformation of wills to be sought. These new statutes allow for any “interested person,” as defined by the Florida probate code, to ask the court to reform or modify the last will and testament of a decedent from the language contained in the document.

Pursuant to Florida Statute § 732.615, an interested person may apply to the court reform the terms of a will, even if unambiguous, to conform to the terms of the testator’s intent if it is proved by clear and convincing evidence that both the accomplishment of the testator’s intent and the terms of the will were affected by a mistake of fact or law, whether in expression or inducement. In determining the testator’s original intent, the court may consider evidence relevant to the testator’s intent even though the evidence contradicts an apparent plain meaning of the will.

The statute is important because it states that the terms of the will may be reformed, even in the absence of ambiguity, provided the testator’s intent is proved by clear and convincing evidence. That standard is between that needed in a civil matter, the preponderance of the evidence, and a criminal matter, beyond a reasonable doubt. So if grandfather had told people that he was no longer leaving grandson his prized trombone because grandson was dead, which was a mistake of fact, a will reformation action could be sought.

Pursuant to Florida Statute §732.616, an “interested person” may apply to the court to modify the terms of a last will and testament in a manner that is not contrary to the testator’s probable intent, to achieve tax objectives. To make a determination of the testator’s tax objectives, the court would probably consider extrinsic evidence even if that evidence was contrary to the terms of the will. It is noteworthy that while no known binding state-wide case law has been published on the statute, it is expected that the preponderance of evidence standard would be applicable, which is significantly less than that necessary to affect the reformation to correct mistakes under F.S. §732.615.

Also enacted effective July 1, 2011 was Florida Statute § 733.1061, which provides for fees and costs for will reformations and modifications under §§ 732.615 and 732.616. In proceedings arising under those two statues, the court shall award taxable costs as in chancery actions, including attorney’s fees and guardian ad litem fees. Further, the court has discretion to direct payment from a party’s interest, if any, in the estate or enter a judgment which may be satisfied from other property of the party, or both. As such, the attorney’s fees provisions of Florida Statute § 733.1061 may be of benefit to both those seeking to reform or modify a will, and those seeking to enforce the terms of a decedent’s last will.

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