Can a Florida Trust be Contested?

Can a Florida Trust be Contested?

By Phil Rarick, Weston Trust Attorney, and Jasmine Benitez, Legal Assistant

Estate planning is essential for ensuring your wishes are carried out after you are gone. Today, the preferred choice for estate planning is a living revocable trust. But what happens if a qualified beneficiary disagrees with the terms of the trust? Can a Florida trust be contested? The short answer is yes. However, contesting a trust in Florida is not easy; there are specific legal grounds and procedures to follow.

Why Would a Florida Trust Be Contested?

The five most common reasons for challenging a Florida trust are as follows:

1. Lack of Mental Capacity The person who created the trust (the settlor or grantor) must have been of sound mind when executing it. If the settlor was mentally incapacitated due to illness, age, or other factors, the trust could be contested.
2. Undue Influence If someone can prove that the settlor was pressured or manipulated into creating or altering the trust, it may be invalidated. This could include family members or caregivers influencing the settlor’s decisions.
3. Fraud If the trust was created under fraudulent circumstances, such as misrepresentation or deceit, it can be contested in court.
4. Improper Execution Trusts must follow Florida’s legal requirements to be valid. If the trust wasn’t executed properly—such as failing to sign, witness, or notarize the document correctly—it may be challenged. A Florida trust must be signed with the same formalities as a Florida will – the settlor must sign first in the presence of two witnesses.
5. Changes to the Trust Amendments or revocations to the trust can be contested, especially if there are concerns that these changes were made under suspicious circumstances and contrary to the grantor’s intent. Changes made within a few months of a grantor’s death are often suspicious, as are changes made by a grantor who has been isolated from his or her family by a caregiver or family member.

How Can a Florida Trust Be Contested?

Contesting a Florida trust involves a legal process that requires specific steps:

1. Filing a Petition

The person contesting the trust must file a timely petition with the probate court where the trust is being administered.

Note: Challenges to a trust must typically be done within 3 months of receiving notice of the trust or the trust’s offering for probate.

2. Gathering Evidence

Contesting a trust requires solid evidence to back up the claim. This might include medical records showing that the grantor lacked mental capacity or testimonies indicating undue influence or fraud.

3. Proving Grounds for Contesting

The person challenging the trust must prove that it is invalid due to one of the legal grounds—such as incapacity, undue influence, or improper execution. Without adequate evidence, the court will likely uphold the trust.

4. Mediation, Arbitration or Trial Today, most trust disputes are resolved through mediation or arbitration, but if the case goes to trial, the court will ultimately decide the outcome. Many trusts now require a process called mediation-arbitration: first, the contesting party must try to resolve the dispute through mediation; failing mediation, the dispute is submitted to binding arbitration. A judge or arbitrator will review all the evidence and determine if the trust stands or if it should be modified or invalidated.

Protecting Your Trust from Being Contested

Although trusts can be contested, there are steps you can take to minimize the chances of a challenge:

• Proper Execution: Work with an experienced estate planning attorney to ensure the trust is executed correctly and follows all legal requirements.
• Clear Intentions: Be clear about your wishes and discuss them openly with your beneficiaries to avoid confusion or misunderstandings.
• No-Contest Clause: A no-contest clause is not valid in Florida; however, as a practical matter, it may be advisable to include it in your trust for psychological purposes and as an expression of the grantor’s intent.

Conclusion

While Florida trusts can be contested, doing so requires strong legal grounds and a formal process. This is one reason why you do not want to try to save money doing it yourself or using an attorney who does not concentrate on trusts. You have heard this before, but you certainly would not want a general surgeon doing brain surgery. The same common sense applies to trust drafting.

If you’re considering creating a trust or have concerns about a trust being contested, consulting with an experienced estate planning attorney can help protect your interests and give you peace of mind.

For more information, contact Phil Rarick, Weston Trust Attorney, at info@raricklaw.com.

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Special Note

The information on this blog is of a general nature and is not intended to answer any individual’s legal questions. Do not rely on the information presented herein to address your individual legal concerns. If you have a legal question about your individual facts and circumstances, you should consult an attorney who is experienced in Florida trust law. Your receipt of information from this website, blog, or Miami trust attorney does not create an attorney-client relationship and the legal privileges inherent therein.