Florida Senate - 2011                              CS for SB 648
       
       
       
       By the Committee on Banking and Insurance; and Senator Joyner
       
       
       
       
       597-02875-11                                           2011648c1
    1                        A bill to be entitled                      
    2         An act relating to estates; creating s. 90.5021, F.S.;
    3         creating a fiduciary lawyer-client privilege;
    4         providing that the lawyer-client privilege applies to
    5         the communications between a lawyer and a client that
    6         is a fiduciary; providing that the act does not affect
    7         the crime or fraud exception to the lawyer-client
    8         privilege; amending s. 732.102, F.S.; revising
    9         provisions relating to the intestate share of a
   10         surviving spouse; creating s. 732.615, F.S.; providing
   11         a right to reform the terms of a will to correct
   12         mistakes; creating s. 732.616, F.S.; providing a right
   13         to modify the terms of a will to achieve tax
   14         objectives; creating s. 733.1061, F.S.; providing for
   15         a court to award fees and costs in reformation and
   16         modification proceedings either against a party’s
   17         share in the estate or in the form of a personal
   18         judgment against a party individually; amending s.
   19         732.5165, F.S.; clarifying that a revocation of a will
   20         is subject to challenge on the grounds of fraud,
   21         duress, mistake, or undue influence; amending s.
   22         732.518, F.S.; specifying that a challenge to the
   23         revocation of a will may not be commenced before the
   24         testator’s death; amending s. 733.212, F.S.; requiring
   25         a notice of administration to state that the fiduciary
   26         lawyer-client privilege applies with respect to the
   27         personal representative and his or her attorney;
   28         amending s. 736.0207, F.S.; clarifying when a
   29         challenge to the revocation of a revocable trust may
   30         be brought; amending s. 736.0406, F.S.; providing that
   31         the creation of a trust amendment or trust restatement
   32         and the revocation of a trust are subject to challenge
   33         on the grounds of fraud, duress, mistake, or undue
   34         influence; amending s. 736.0813, F.S.; providing that
   35         the fiduciary lawyer-client privilege applies to
   36         communications between a trustee and an attorney
   37         employed by the trustee; amending s. 744.441, F.S.;
   38         limiting the circumstances under which a guardian of
   39         an incapacitated person may bring a challenge to a
   40         settlor’s revocation of a revocable trust; amending s.
   41         736.0201, F.S.; clarifying that certain payments by a
   42         trustee from trust assets are not taxation of
   43         attorney’s fees and costs subject to a specified Rule
   44         of Civil Procedure; providing for application of the
   45         act; providing effective dates.
   46  
   47  Be It Enacted by the Legislature of the State of Florida:
   48  
   49         Section 1. Section 90.5021, Florida Statutes, is created to
   50  read:
   51         90.5021 Fiduciary lawyer-client privilege.—
   52         (1) For the purpose of this section, a client acts as a
   53  fiduciary when serving as a personal representative or a trustee
   54  as defined in ss. 731.201 and 736.0103, an administrator ad
   55  litem as defined in s. 733.308, a curator as described in s.
   56  733.501, a guardian or guardian ad litem as defined in s.
   57  744.102, a conservator as defined in s. 710.102, or an attorney
   58  in fact as described in chapter 709.
   59         (2) A communication between a lawyer and a client acting as
   60  a fiduciary is privileged and protected from disclosure under s.
   61  90.502 to the same extent as if the client were not acting as a
   62  fiduciary. In applying s. 90.502 to a communication under this
   63  section, only the person or entity acting as a fiduciary is
   64  considered a client of the lawyer.
   65         (3) This section does not affect the exception to the
   66  lawyer-client privilege which is provided for crime or fraud as
   67  set forth in s. 90.502(4)(a).
   68         Section 2. Effective October 1, 2011, subsections (2) and
   69  (3) of section 732.102, Florida Statutes, are amended, and
   70  subsection (4) is added to that section, to read:
   71         732.102 Spouse’s share of intestate estate.—The intestate
   72  share of the surviving spouse is:
   73         (2) If the decedent is survived by one or more descendants
   74  there are surviving descendants of the decedent, all of whom are
   75  also lineal descendants of the surviving spouse, and the
   76  surviving spouse has no other descendant, the entire intestate
   77  estate the first $60,000 of the intestate estate, plus one-half
   78  of the balance of the intestate estate. Property allocated to
   79  the surviving spouse to satisfy the $60,000 shall be valued at
   80  the fair market value on the date of distribution.
   81         (3) If there are one or more surviving descendants of the
   82  decedent who, one or more of whom are not lineal descendants of
   83  the surviving spouse, one-half of the intestate estate.
   84         (4) If there are one or more surviving descendants of the
   85  decedent, all of whom are also descendants of the surviving
   86  spouse, and the surviving spouse has one or more descendants who
   87  are not descendants of the decedent, one-half of the intestate
   88  estate.
   89         Section 3. Effective July 1, 2011, section 732.615, Florida
   90  Statutes, is created to read:
   91         732.615 Reformation to correct mistakes.—Upon application
   92  of any interested person, the court may reform the terms of a
   93  will, even if unambiguous, to conform the terms to the
   94  testator’s intent if it is proved by clear and convincing
   95  evidence that both the accomplishment of the testator’s intent
   96  and the terms of the will were affected by a mistake of fact or
   97  law, whether in expression or inducement. In determining the
   98  testator’s original intent, the court may consider evidence
   99  relevant to the testator’s intent even though the evidence
  100  contradicts an apparent plain meaning of the will.
  101         Section 4. Effective July 1, 2011, section 732.616, Florida
  102  Statutes, is created to read:
  103         732.616 Modification to achieve testator’s tax objectives.
  104  Upon application of any interested person, to achieve the
  105  testator’s tax objectives the court may modify the terms of a
  106  will in a manner that is not contrary to the testator’s probable
  107  intent. The court may provide that the modification has
  108  retroactive effect.
  109         Section 5. Effective July 1, 2011, section 733.1061,
  110  Florida Statutes, is created to read:
  111         733.1061 Fees and costs; will reformation and
  112  modification.—
  113         (1) In a proceeding arising under s. 732.615 or s. 732.616,
  114  the court shall award taxable costs as in chancery actions,
  115  including attorney’s fees and guardian ad litem fees.
  116         (2) When awarding taxable costs, including attorney’s fees
  117  and guardian ad litem fees, under this section, the court in its
  118  discretion may direct payment from a party’s interest, if any,
  119  in the estate or enter a judgment which may be satisfied from
  120  other property of the party, or both.
  121         Section 6. Section 732.5165, Florida Statutes, is amended
  122  to read:
  123         732.5165 Effect of fraud, duress, mistake, and undue
  124  influence.—A will is void if the execution is procured by fraud,
  125  duress, mistake, or undue influence. Any part of the will is
  126  void if so procured, but the remainder of the will not so
  127  procured shall be valid if it is not invalid for other reasons.
  128  If the revocation of a will, or any part thereof, is procured by
  129  fraud, duress, mistake, or undue influence, such revocation is
  130  void.
  131         Section 7. Section 732.518, Florida Statutes, is amended to
  132  read:
  133         732.518 Will contests.—An action to contest the validity of
  134  all or part of a will or the revocation of all or part of a will
  135  may not be commenced before the death of the testator.
  136         Section 8. Paragraph (b) of subsection (2) of section
  137  733.212, Florida Statutes, is amended to read:
  138         733.212 Notice of administration; filing of objections.—
  139         (2) The notice shall state:
  140         (b) The name and address of the personal representative and
  141  the name and address of the personal representative’s attorney,
  142  and that the fiduciary lawyer-client privilege in s. 90.5021
  143  applies with respect to the personal representative and any
  144  attorney employed by the personal representative.
  145         Section 9. Section 736.0207, Florida Statutes, is amended
  146  to read:
  147         736.0207 Trust contests.—An action to contest the validity
  148  of all or part of a revocable trust, or the revocation of part
  149  of a revocable trust, may not be commenced until the trust
  150  becomes irrevocable by its terms or by the settlor’s death. If
  151  all of a revocable trust has been revoked, an action to contest
  152  the revocation may not be commenced until after the settlor’s
  153  death., except This section does not prohibit such action by the
  154  guardian of the property of an incapacitated settlor.
  155         Section 10. Section 736.0406, Florida Statutes, is amended
  156  to read:
  157         736.0406 Effect of fraud, duress, mistake, or undue
  158  influence.—A trust is void If the creation, amendment, or
  159  restatement of a the trust is procured by fraud, duress,
  160  mistake, or undue influence, the trust or. any part so procured
  161  of the trust is void. if procured by such means, but The
  162  remainder of the trust not procured by such means is valid if
  163  the remainder is not invalid for other reasons. If the
  164  revocation of a trust, or any part thereof, is procured by
  165  fraud, duress, mistake, or undue influence, such revocation is
  166  void.
  167         Section 11. Paragraphs (a) and (b) of subsection (1) of
  168  section 736.0813, Florida Statutes, are amended to read:
  169         736.0813 Duty to inform and account.—The trustee shall keep
  170  the qualified beneficiaries of the trust reasonably informed of
  171  the trust and its administration.
  172         (1) The trustee’s duty to inform and account includes, but
  173  is not limited to, the following:
  174         (a) Within 60 days after acceptance of the trust, the
  175  trustee shall give notice to the qualified beneficiaries of the
  176  acceptance of the trust, and the full name and address of the
  177  trustee, and that the fiduciary lawyer-client privilege in s.
  178  90.5021 applies with respect to the trustee and any attorney
  179  employed by the trustee.
  180         (b) Within 60 days after the date the trustee acquires
  181  knowledge of the creation of an irrevocable trust, or the date
  182  the trustee acquires knowledge that a formerly revocable trust
  183  has become irrevocable, whether by the death of the settlor or
  184  otherwise, the trustee shall give notice to the qualified
  185  beneficiaries of the trust’s existence, the identity of the
  186  settlor or settlors, the right to request a copy of the trust
  187  instrument, and the right to accountings under this section, and
  188  that the fiduciary lawyer-client privilege in s. 90.5021 applies
  189  with respect to the trustee and any attorney employed by the
  190  trustee.
  191  
  192  Paragraphs (a) and (b) do not apply to an irrevocable trust
  193  created before the effective date of this code, or to a
  194  revocable trust that becomes irrevocable before the effective
  195  date of this code. Paragraph (a) does not apply to a trustee who
  196  accepts a trusteeship before the effective date of this code.
  197         Section 12. Subsection (11) of section 744.441, Florida
  198  Statutes, is amended to read:
  199         744.441 Powers of guardian upon court approval.—After
  200  obtaining approval of the court pursuant to a petition for
  201  authorization to act, a plenary guardian of the property, or a
  202  limited guardian of the property within the powers granted by
  203  the order appointing the guardian or an approved annual or
  204  amended guardianship report, may:
  205         (11) Prosecute or defend claims or proceedings in any
  206  jurisdiction for the protection of the estate and of the
  207  guardian in the performance of his or her duties. Before
  208  authorizing a guardian to bring an action described in s.
  209  736.0207, the court shall first find that the action appears to
  210  be in the ward’s best interests during the ward’s probable
  211  lifetime. There shall be a rebuttable presumption that an action
  212  challenging the ward’s revocation of all or part of a trust is
  213  not in the ward’s best interests if the revocation relates
  214  solely to a devise. This subsection does not preclude a
  215  challenge after the ward’s death. If the court denies a request
  216  that a guardian be authorized to bring an action described in s.
  217  736.0207, the court shall review the continued need for a
  218  guardian and the extent of the need for delegation of the ward’s
  219  rights.
  220         Section 13. Subsection (1) of section 736.0201, Florida
  221  Statutes, is amended, and subsection (6) is added to that
  222  section, to read:
  223         736.0201 Role of court in trust proceedings.—
  224         (1) Except as provided in subsections subsection (5) and
  225  (6) and s. 736.0206, judicial proceedings concerning trusts
  226  shall be commenced by filing a complaint and shall be governed
  227  by the Florida Rules of Civil Procedure.
  228         (6) Rule 1.525, Florida Rules of Civil Procedure, shall
  229  apply to judicial proceedings concerning trusts, except that the
  230  following do not constitute taxation of costs or attorney’s fees
  231  even if the payment is for services rendered or costs incurred
  232  in a judicial proceeding:
  233         (a) A trustee’s payment of compensation or reimbursement of
  234  costs to persons employed by the trustee from assets of the
  235  trust.
  236         (b) A determination by the court directing from what part
  237  of the trust fees or costs shall be paid, unless the
  238  determination is made under s. 736.1004 in an action for breach
  239  of fiduciary duty or challenging the exercise of, or failure to
  240  exercise, a trustee’s powers.
  241         Section 14. Except as otherwise expressly provided in this
  242  act, this act shall take effect upon becoming a law, and shall
  243  apply to all proceedings pending before such date and all cases
  244  commenced on or after the effective date.