Florida Trust Reformation / Construction

Lawyer's can make mistakes preparing trusts or draft Trusts that have unclear language. Florida law has a specific statute which allows a Trust to be revised (reformed), even after the testator's death, if the provisions of the law are met. A Trust can be reformed to correct seemingly glaring mistakes so long as you can prove the testator's intent.

Likewise, when attorneys write documents that have unclear, ambiguous or confusing Trust language, or when lawyers botch issues regarding trustee appointments and resignations; trustee's powers and duties; whether money must be held in Trusts or distributed outright; the identity of the beneficiaries; the termination date of the Trust; or whether to divide Trust assets into separate Trusts for different beneficiaries, the law allows a judge to solve these problems even after the death of the person who created the Trust.

Two recent trust reformation cases which our firm has handled are follows:

Adrian P. Thomas represented a very prominent national university which was the primary beneficiary of an 8 million trust. The Palm Beach lawyers for the decedent prepared a ninth amendment at the direction of the Grantor. Unfortunately, the lawyers printed the eight amendment instead of the ninth. The eight amendment to the trust was signed instead of the ninth and at the time of the signing none of the witnesses, lawyer nor the Grantor noticed the mistake. A trust reformation case was filed and the court ruled that it was the clear intention of the decedent to sign her ninth amendment to the trust and but for the lawyers' mistake of presenting the eight amendment the Grantor would have signed the ninth. Thus, the court reformed the second signed eighth amendment so that it read exactly like the unsigned ninth amendment.

In another case, Adrian P. Thomas represented the biological son of a decedent who had already received $50,000.00 pursuant to his father's trust. The lawyers before Mr. Thomas were unsuccessful in the representation of the child in a trust litigation action wherein they argued that the decedent had gone to great lengths to change his trust to include his son but was unable to complete the change prior to his death. After the defeat, the court granted the child a limited period of time to retain new counsel at which time Adrian P. Thomas was hired. After our independent investigation, a witness was located to support the trust reformation lawsuit filed by Mr. Thomas wherein it was argued that the Grantor, at the time he hired his attorney to prepare his trust, instructed his lawyer to include his child as a beneficiary of a majority of his estate, if the Grantor and son we reunited prior to his death. A trust reformation lawsuit was filed asking the court to reform the trust to include language which would give a majority of the trust to the child because they were, in fact, reunited prior to death. The case is still pending.

Other examples of reported Trust Reformation cases are listed below:

Trust reformed to include adopted out issue excluded because of attorney's drafting error. A grandmother's inter vivos trust directed that at her death the trust property would pass to her son "per stirpes." The lawyer testified that the grandmother intended to include all five of her son's children if her son predeceased her and neither she nor her son informed the lawyer that two of those children had been adopted by their mother's second husband. Although "per stirpes" is unambiguous and excludes adopted outs under local law, the lawyer's testimony was clear and convincing evidence of a unilateral drafting error and equity was available to reform the trust to include the adopted out children. Schroeder v. Gebhart, 825 So. 2d 442 (Fla. Dist. Ct. App. 2002).

Trust reformed to remedy both typographical and substantive tax-related errors. In Colt v. Colt, 777 N.E.2d 1235 (Mass. 2002), the court reformed an inter vivos trust to remedy two typographical errors (an omitted date referring to grantor's husband's trust and a mistaken cross-reference to the husband's trust) as well as language that might be construed as having adverse generation-skipping transfer tax consequences. The court characterized all of these mistakes as scrivener's errors.

General residuary clause in will does not revoke inter vivos trust. The decedent created a revocable inter vivos trust to which he transferred substantially all of his property. At the same time, he executed a pour over will. One year later, he executed a new will drafted by a different attorney that did not mention the trust. After his death, a will beneficiary sued alleging that the will revoked the trust. In In re Estate of Furst, 55 P.3d 664 (Wash. Ct. App. 2002), the court held that the will did not have a latent ambiguity, that extrinsic evidence was not admissible, and that the will could not revoke the trust because it did not mention the trust.