As of July 1, 2011, Florida law now allows beneficiaries to contest the revocation of a will or revocable trust on the grounds of fraud, duress, mistake, and undue influence. Fla. Stat. §§732.518 and 736.0207. If it is shown that the revocation of a will (or any part thereof) or a trust (or any part thereof) is procured by fraud, duress, mistake, or undue influence, then such revocation is void. Fla. Stat. §§732.5165 and 736.0406 (2011). With respect to trusts, if the creation of a trust, or any amendments or restatements, is procured by fraud, duress, mistake, or undue influence, then the trust, amendment, or restatement will also be void. Fla. Stat. §736.0406 (2011).
In addition, Florida law also allows any interested person to petition the court to reform the terms of a will, even if the terms are unambiguous, to conform with the testator’s intent where the evidence shows 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.” Fla. Stat. §732.615 (2011). The statute goes on to state that “[i]n determining the testator’s original intent, the court may consider evidence relevant to the testator’s intent even though the evidence contradicts the apparent plain meaning of the will.” Fla. Stat. §732.615 (2011). Another new statute now allows for modification of a will to be consistent with the testator’s tax objectives. Fla. Stat. §732.616 (2011).
In addition to §§732.615 and732.616, §732.1061 was added to allow for the court to award taxable costs related to a proceeding for modification, including attorney’s fees. Fla. Stat. §732.1061(1) (2011). The court has the discretion of directing that the costs be paid from a party’s interest in the estate or from other property. Fla. Stat. §732.1061(2) (2011).
[author] [author_image timthumb=’on’]http://www.bretjonespa.com/main/wp-content/uploads/2012/06/BJones-90-86-square.jpg[/author_image] [author_info]An intensely critical thinker, Attorney Cazobon focuses on the facts and the application of the law to the acts, rather than through social needs or media. Attorney Cazobon is one of the significant reasons that Bret Jones, P.A. rarely does “basic” estate plans but rather customized and creative means to accomplish a client’s personal goals whether those be short-term, long-term, tax-related, or part of an overall business or life plan.[/author_info] [/author]