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Trust Contest Lawyers | Tampa Bay Trust Dispute Litigation

Clearwater Trust Challenge Attorneys

Our lawyers handle trust dispute lawsuits in Florida, which typically involve contesting the validity of trust. In most cases, a party is contesting a trust, a trust restatement, or a trust amendment. There may also be a last will and testament involved, which "pours" a decedent's assets into a trust.

What are the grounds for contesting a Trust in Florida?

There are several grounds for bringing a trust contest in Florida. Those grounds include:

1. Technical problems with the execution of the Trust.

2. Lacking Testamentary Capacity to Execute the Trust

3. The Trust was a result of Undue Influence

4. The Trust was executed for fraud

5. The Settlor signed the trust under duress.

6. The Settlor suffered from an insane delusion when they signed the Trust.

What are execution problems with a Trust?

In Florida, if a trust has testamentary aspects (meaning, it gives property away upon dead of the trust's creator), then the trust must be executed with the same formalities of a will. This is a technical requirement that cannot be avoided. The Florida Legislature has made this a requirement for the validity of a trust. The applicable statute provides as follows:

736.0403 Trusts created in other jurisdictions; formalities required for revocable trusts.

(1) A trust not created by will is validly created if the creation of the trust complies with the law of the jurisdiction in which the trust instrument was executed or the law of the jurisdiction in which, at the time of creation, the settlor was domiciled.
(2) Notwithstanding subsection (1):
(a) No trust or confidence of or in any messuages, lands, tenements, or hereditaments shall arise or result unless the trust complies with the provisions of s. 689.05.
(b) The testamentary aspects of a revocable trust, executed by a settlor who is a domiciliary of this state at the time of execution, are invalid unless the trust instrument is executed by the settlor with the formalities required for the execution of a will in this state. For purposes of this subsection, the term “testamentary aspects” means those provisions of the trust instrument that dispose of the trust property on or after the death of the settlor other than to the settlor’s estate.
(3) Paragraph (2)(b) does not apply to trusts established as part of an employee annuity described in s. 403 of the Internal Revenue Code of 1986, as amended, an individual retirement account as described in s. 408 of the Internal Revenue Code of 1986, as amended, a Keogh (HR-10) Plan, or a retirement or other plan that is qualified under s. 401 of the Internal Revenue Code of 1986, as amended.
(4) Paragraph (2)(b) applies to trusts created on or after the effective date of this code.1Former s. 737.111, as in effect prior to the effective date of this code, continues to apply to trusts created before the effective date of this code.

Florida Statutes Section 736.0403.

Since the execution of a trust requires the same requirements as a will, it is important to review the statute governing will formalities:

1. Age Requirement: The Testator must be at least 18 years old (or an emancipated minor) and of sound mind. If the testator meets these conditions, they may execute a will.

2. Statutory Formalities (Fla. Stat. § 732.502):

What is a Trust Contest for Lack of Mental Capacity in Florida?

A Settlor (the person who creates the trust) must be of “sound mind” at the time the trust is signed.  This means that the settlor must be able to understand the nature and extent of their property, the relationship of those who would be the natural objects of the testator’s bounty, and the practical effect of the trust.

This is often a factually intensive claim. A trust contest based on the settlor's incompetence is fact intensive because it cannot be based solely on age or failing memory. Even if a testator suffers from a mental condition, a trust may be validly executed during a “lucid interval.” A person challenging the Trust has the burden of proving the settlor lacked capacity because there is a presumption that the testator had the requisite capacity at the time he or she signed the trust. There are lots of evidence that can prove lacking capacity such as medical records or diagnoses of a mental condition or infirmity, witness testimony about the settlor's confusion or mental weakness, court determinations in a guardianship proceedings, the settlor's inability to pay bills or manage their finances, etc. As you can imagine, these cases are evaluated on a case-by-case basis. 

What is a Trust Contest for Undue Influence in Florida?

Undue influence occurs when the Settlor (the person making the trust) is induced to act contrary to his or her own wishes and the will provisions are another person's wishes, not actually the testator's. 

It is important to know that it is not just any influence. Simply asking your grandparents for a larger inheritance than your siblings is influence, but doesn't necessarily rise to the level of being undue influence. The term undue contemplates that the testator's mind was was not under their control, but was instead controlled by persuasion, pressure, or outside influences that were so strong that he or she did not act on their own. 

Many times, clients come to our office wit a trust that doesn't make sense given what they knew the Settlor had once desired. The trust terms just don't seem "right." Of course, often they weren't there when it was signed, but the circumstances surrounding the execution are suspect.

Maybe the beneficiary who received more had isolated and lied to the Settlor about what was going on. Maybe they took the Settlor to their lawyer to have paperwork done. All of these circumstances can point to undue influence.

For more information about a claim for undue influence, visit our undue influence page

What are the requirements for a Trust Contest for Fraud in Florida?

In Florida, fraud is a statutory method of invalidating a trust. Where undue influence relies on a person inducing a settlor into signing a trust, fraud occurs through deceit or tricking the settlor into signing a trust. For example, if a sibling gives a settlor with poor vision an amended trust and lies about the terms, the trust could be set aside for fraud. The sibling did not unduly influence the settlor, but deceived them into signing something different than what they believed.

This is different from undue influence, which relies on undue pressure or persuading the settlor to make a decision to change or alter the trust.

What is a Trust Contest for Duress in Florida?

Duress is perhaps the rarest forms of contesting a trust in Florida. Although it is technically possible and available under the statute, it is rarely used as a method for undoing a trust. Duress results from a change in the trust from a threat or blackmail. For example, if a sibling threatens to withhold groceries or medication from the settlor until they sign the trust amendment. 

Contact us

If you believe that there has been undue influence or if you have been wrongly accused of unduly influencing someone, please contact us. At PersanteZuroweste, we pursue and defend undue influence claims for wills and trusts. If you believe you need a Probate or Trust Litigation law firm in Pinellas, Pasco, or Hillsborough County, Florida please do not hesitate to contact us at (727) 796-7666.