Summary
Florida House Staff Analysis of HB 325 (2011) proposes significant changes to Florida probate and trust law. Key provisions include: expanding the intestate share of a surviving spouse to the entire estate when all descendants are also the spouse’s descendants; allowing courts to reform unambiguous wills to correct mistakes of fact or law and to achieve tax objectives; permitting post-death challenges to the revocation of wills (by act or writing) and revocable trusts on grounds of fraud, duress, mistake, or undue influence; and clarifying the application of civil procedure rules to attorney fee awards in trust proceedings.
Topics
Practice areas
Key quotations
“The paramount objective in constructing a will is to ascertain the intent of the testator. The will as a whole should be considered in order to ascertain the testamentary scheme. The construction of the will which leads to a valid testamentary disposition is favored over one which results in intestacy. If possible, the intent should be determined from the will itself. However, in case of ambiguity, extrinsic evidence is admissible to explain the intent of the testator.” (4)
“[A] workable definition of clear and convincing evidence must contain both qualitative and quantitative standards...clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.” (5)
“...there is utterly no ambiguity in the subject will and codicils which would authorize the taking of parol evidence herein...the mistake of which Patricia claims amounts, at best, to the draftsman's alleged professional negligence in failing to apprise the [father] of the need to expressly provide for Patricia in the second codicil; this is not the type of mistake which voids a will under Section 732.5165, Florida Statutes.” (5)
“The courts have no place in trying to save person such as Mrs. Genova, the otherwise competent settlor of a revocable trust, from what may or may not be her own imprudence with her own assets. When she created this trust, she provided a means to save herself from her own incompetence, and the courts can and should zealously protect her from her own mental capacity. However, when she created this trust, she also reserved the absolute right to revoke it if she were not incompetent. In order for this to remain a desirable feature of a trust instrument, the right to revoke should also be absolute.” (8)
Factual background
This document is a legislative staff analysis for HB 325, which proposes changes to Florida probate and trust law. It describes existing intestate succession statutes, will reformation rules, will revocation procedures, and trust law, and explains how the bill would alter them. The document is not a court opinion and contains no case-specific facts.
Procedural history
This is a staff analysis of proposed legislation (HB 325) by the Florida House of Representatives Civil Justice Subcommittee, not a judicial opinion. No case history exists.