| 1 | A bill to be entitled |
| 2 | An act relating to estates; amending s. 732.102, F.S.; |
| 3 | revising provisions relating to the intestate share of a |
| 4 | surviving spouse; creating s. 732.615, F.S.; providing a |
| 5 | right to reform the terms of a will to correct mistakes; |
| 6 | creating s. 732.616, F.S.; providing a right to modify the |
| 7 | terms of a will to achieve tax objectives; creating s. |
| 8 | 733.1061, F.S.; providing for a court to award fees and |
| 9 | costs in reformation and modification proceedings either |
| 10 | against a party's share in the estate or in the form of a |
| 11 | personal judgment against a party individually; amending |
| 12 | s. 732.5165, F.S.; clarifying that a revocation of a will |
| 13 | is subject to challenge on the grounds of fraud, duress, |
| 14 | mistake, or undue influence; amending s. 732.518, F.S.; |
| 15 | specifying that a challenge to the revocation of a will |
| 16 | may not be commenced before the testator's death; amending |
| 17 | s. 736.0207, F.S.; clarifying when a challenge to the |
| 18 | revocation of a revocable trust may be brought; amending |
| 19 | s. 736.0406, F.S.; providing that the creation of a trust |
| 20 | amendment or trust restatement and the revocation of a |
| 21 | trust are subject to challenge on the grounds of fraud, |
| 22 | duress, mistake, or undue influence; amending s. 744.441, |
| 23 | F.S.; limiting the circumstances under which a guardian of |
| 24 | an incapacitated person may bring a challenge to a |
| 25 | settlor's revocation of a revocable trust; amending s. |
| 26 | 736.0201, F.S.; clarifying that certain payments by a |
| 27 | trustee from trust assets are not taxation of attorney's |
| 28 | fees and costs subject to a specified Rule of Civil |
| 29 | Procedure; providing effective dates. |
| 30 |
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| 31 | Be It Enacted by the Legislature of the State of Florida: |
| 32 |
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| 33 | Section 1. Effective October 1, 2011, subsections (2) and |
| 34 | (3) of section 732.102, Florida Statutes, are amended, and |
| 35 | subsection (4) is added to that section, to read: |
| 36 | 732.102 Spouse's share of intestate estate.-The intestate |
| 37 | share of the surviving spouse is: |
| 38 | (2) If the decedent is survived by one or more descendants |
| 39 | there are surviving descendants of the decedent, all of whom are |
| 40 | also lineal descendants of the surviving spouse, and the |
| 41 | surviving spouse has no other descendant, the entire intestate |
| 42 | estate the first $60,000 of the intestate estate, plus one-half |
| 43 | of the balance of the intestate estate. Property allocated to |
| 44 | the surviving spouse to satisfy the $60,000 shall be valued at |
| 45 | the fair market value on the date of distribution. |
| 46 | (3) If there are one or more surviving descendants of the |
| 47 | decedent who, one or more of whom are not lineal descendants of |
| 48 | the surviving spouse, one-half of the intestate estate. |
| 49 | (4) If there are one or more surviving descendants of the |
| 50 | decedent, all of whom are also descendants of the surviving |
| 51 | spouse, and the surviving spouse has one or more descendants who |
| 52 | are not descendants of the decedent, one-half of the intestate |
| 53 | estate. |
| 54 | Section 2. Effective July 1, 2011, section 732.615, |
| 55 | Florida Statutes, is created to read: |
| 56 | 732.615 Reformation to correct mistakes.-Upon application |
| 57 | of any interested person, the court may reform the terms of a |
| 58 | will, even if unambiguous, to conform the terms to the |
| 59 | testator's intent if it is proved by clear and convincing |
| 60 | evidence that both the accomplishment of the testator's intent |
| 61 | and the terms of the will were affected by a mistake of fact or |
| 62 | law, whether in expression or inducement. In determining the |
| 63 | testator's original intent, the court may consider evidence |
| 64 | relevant to the testator's intent even though the evidence |
| 65 | contradicts an apparent plain meaning of the will. |
| 66 | Section 3. Effective July 1, 2011, section 732.616, |
| 67 | Florida Statutes, is created to read: |
| 68 | 732.616 Modification to achieve testator's tax |
| 69 | objectives.-Upon application of any interested person, to |
| 70 | achieve the testator's tax objectives the court may modify the |
| 71 | terms of a will in a manner that is not contrary to the |
| 72 | testator's probable intent. The court may provide that the |
| 73 | modification has retroactive effect. |
| 74 | Section 4. Effective July 1, 2011, section 733.1061, |
| 75 | Florida Statutes, is created to read: |
| 76 | 733.1061 Fees and costs; will reformation and |
| 77 | modification.- |
| 78 | (1) In a proceeding arising under s. 732.615 or s. |
| 79 | 732.616, the court shall award taxable costs as in chancery |
| 80 | actions, including attorney's fees and guardian ad litem fees. |
| 81 | (2) When awarding taxable costs, including attorney's fees |
| 82 | and guardian ad litem fees, under this section, the court in its |
| 83 | discretion may direct payment from a party's interest, if any, |
| 84 | in the estate or enter a judgment which may be satisfied from |
| 85 | other property of the party, or both. |
| 86 | Section 5. Section 732.5165, Florida Statutes, is amended |
| 87 | to read: |
| 88 | 732.5165 Effect of fraud, duress, mistake, and undue |
| 89 | influence.-A will is void if the execution is procured by fraud, |
| 90 | duress, mistake, or undue influence. Any part of the will is |
| 91 | void if so procured, but the remainder of the will not so |
| 92 | procured shall be valid if it is not invalid for other reasons. |
| 93 | If the revocation of a will, or any part thereof, is procured by |
| 94 | fraud, duress, mistake, or undue influence, such revocation is |
| 95 | void. |
| 96 | Section 6. Section 732.518, Florida Statutes, is amended |
| 97 | to read: |
| 98 | 732.518 Will contests.-An action to contest the validity |
| 99 | of all or part of a will or the revocation of all or part of a |
| 100 | will may not be commenced before the death of the testator. |
| 101 | Section 7. Section 736.0207, Florida Statutes, is amended |
| 102 | to read: |
| 103 | 736.0207 Trust contests.-An action to contest the validity |
| 104 | of all or part of a revocable trust, or the revocation of part |
| 105 | of a revocable trust, may not be commenced until the trust |
| 106 | becomes irrevocable by its terms or by the settlor's death. If |
| 107 | all of a revocable trust has been revoked, an action to contest |
| 108 | the revocation may not be commenced until after the settlor's |
| 109 | death., except This section does not prohibit such action by the |
| 110 | guardian of the property of an incapacitated settlor. |
| 111 | Section 8. Section 736.0406, Florida Statutes, is amended |
| 112 | to read: |
| 113 | 736.0406 Effect of fraud, duress, mistake, or undue |
| 114 | influence.-A trust is void If the creation, amendment, or |
| 115 | restatement of a the trust is procured by fraud, duress, |
| 116 | mistake, or undue influence, the trust or. any part so procured |
| 117 | of the trust is void. if procured by such means, but The |
| 118 | remainder of the trust not procured by such means is valid if |
| 119 | the remainder is not invalid for other reasons. If the |
| 120 | revocation of a trust, or any part thereof, is procured by |
| 121 | fraud, duress, mistake, or undue influence, such revocation is |
| 122 | void. |
| 123 | Section 9. Subsection (11) of section 744.441, Florida |
| 124 | Statutes, is amended to read: |
| 125 | 744.441 Powers of guardian upon court approval.-After |
| 126 | obtaining approval of the court pursuant to a petition for |
| 127 | authorization to act, a plenary guardian of the property, or a |
| 128 | limited guardian of the property within the powers granted by |
| 129 | the order appointing the guardian or an approved annual or |
| 130 | amended guardianship report, may: |
| 131 | (11) Prosecute or defend claims or proceedings in any |
| 132 | jurisdiction for the protection of the estate and of the |
| 133 | guardian in the performance of his or her duties. Before |
| 134 | authorizing a guardian to bring an action described in s. |
| 135 | 736.0207, the court shall first find that the action appears to |
| 136 | be in the ward's best interests during the ward's probable |
| 137 | lifetime. There shall be a rebuttable presumption that an action |
| 138 | challenging the ward's revocation of all or part of a trust is |
| 139 | not in the ward's best interests if the revocation relates |
| 140 | solely to a devise. This subsection does not preclude a |
| 141 | challenge after the ward's death. If the court denies a request |
| 142 | that a guardian be authorized to bring an action described in s. |
| 143 | 736.0207, the court shall review the continued need for a |
| 144 | guardian and the extent of the need for delegation of the ward's |
| 145 | rights. |
| 146 | Section 10. Subsection (1) of section 736.0201, Florida |
| 147 | Statutes, is amended, and subsection (6) is added to that |
| 148 | section, to read: |
| 149 | 736.0201 Role of court in trust proceedings.- |
| 150 | (1) Except as provided in subsections subsection (5) and |
| 151 | (6) and s. 736.0206, judicial proceedings concerning trusts |
| 152 | shall be commenced by filing a complaint and shall be governed |
| 153 | by the Florida Rules of Civil Procedure. |
| 154 | (6) Rule 1.525, Florida Rules of Civil Procedure, shall |
| 155 | apply to judicial proceedings concerning trusts, except that the |
| 156 | following do not constitute taxation of costs or attorney's fees |
| 157 | even if the payment is for services rendered or costs incurred |
| 158 | in a judicial proceeding: |
| 159 | (a) A trustee's payment of compensation or reimbursement |
| 160 | of costs to persons employed by the trustee from assets of the |
| 161 | trust. |
| 162 | (b) A determination by the court directing from what part |
| 163 | of the trust fees or costs shall be paid, unless the |
| 164 | determination is made under s. 736.1004 in an action for breach |
| 165 | of fiduciary duty or challenging the exercise of, or failure to |
| 166 | exercise, a trustee's powers. |
| 167 | Section 11. Except as otherwise expressly provided in this |
| 168 | act, this act shall take effect upon becoming a law and shall |
| 169 | apply to all proceedings pending before such date and all cases |
| 170 | commenced on or after the effective date. |