HB 325

1
A bill to be entitled
2An act relating to estates; amending s. 732.102, F.S.;
3revising provisions relating to the intestate share of a
4surviving spouse; creating s. 732.615, F.S.; providing a
5right to reform the terms of a will to correct mistakes;
6creating s. 732.616, F.S.; providing a right to modify the
7terms of a will to achieve tax objectives; creating s.
8733.1061, F.S.; providing for a court to award fees and
9costs in reformation and modification proceedings either
10against a party's share in the estate or in the form of a
11personal judgment against a party individually; amending
12s. 732.5165, F.S.; clarifying that a revocation of a will
13is subject to challenge on the grounds of fraud, duress,
14mistake, or undue influence; amending s. 732.518, F.S.;
15specifying that a challenge to the revocation of a will
16may not be commenced before the testator's death; amending
17s. 736.0207, F.S.; clarifying when a challenge to the
18revocation of a revocable trust may be brought; amending
19s. 736.0406, F.S.; providing that the creation of a trust
20amendment or trust restatement and the revocation of a
21trust are subject to challenge on the grounds of fraud,
22duress, mistake, or undue influence; amending s. 744.441,
23F.S.; limiting the circumstances under which a guardian of
24an incapacitated person may bring a challenge to a
25settlor's revocation of a revocable trust; amending s.
26736.0201, F.S.; clarifying that certain payments by a
27trustee from trust assets are not taxation of attorney's
28fees and costs subject to a specified Rule of Civil
29Procedure; providing effective dates.
30
31Be It Enacted by the Legislature of the State of Florida:
32
33     Section 1.  Effective October 1, 2011, subsections (2) and
34(3) of section 732.102, Florida Statutes, are amended, and
35subsection (4) is added to that section, to read:
36     732.102  Spouse's share of intestate estate.-The intestate
37share of the surviving spouse is:
38     (2)  If the decedent is survived by one or more descendants
39there are surviving descendants of the decedent, all of whom are
40also lineal descendants of the surviving spouse, and the
41surviving spouse has no other descendant, the entire intestate
42estate the first $60,000 of the intestate estate, plus one-half
43of the balance of the intestate estate. Property allocated to
44the surviving spouse to satisfy the $60,000 shall be valued at
45the fair market value on the date of distribution.
46     (3)  If there are one or more surviving descendants of the
47decedent who, one or more of whom are not lineal descendants of
48the surviving spouse, one-half of the intestate estate.
49     (4)  If there are one or more surviving descendants of the
50decedent, all of whom are also descendants of the surviving
51spouse, and the surviving spouse has one or more descendants who
52are not descendants of the decedent, one-half of the intestate
53estate.
54     Section 2.  Effective July 1, 2011, section 732.615,
55Florida Statutes, is created to read:
56     732.615  Reformation to correct mistakes.-Upon application
57of any interested person, the court may reform the terms of a
58will, even if unambiguous, to conform the terms to the
59testator's intent if it is proved by clear and convincing
60evidence that both the accomplishment of the testator's intent
61and the terms of the will were affected by a mistake of fact or
62law, whether in expression or inducement. In determining the
63testator's original intent, the court may consider evidence
64relevant to the testator's intent even though the evidence
65contradicts an apparent plain meaning of the will.
66     Section 3.  Effective July 1, 2011, section 732.616,
67Florida Statutes, is created to read:
68     732.616  Modification to achieve testator's tax
69objectives.-Upon application of any interested person, to
70achieve the testator's tax objectives the court may modify the
71terms of a will in a manner that is not contrary to the
72testator's probable intent. The court may provide that the
73modification has retroactive effect.
74     Section 4.  Effective July 1, 2011, section 733.1061,
75Florida Statutes, is created to read:
76     733.1061  Fees and costs; will reformation and
77modification.-
78     (1)  In a proceeding arising under s. 732.615 or s.
79732.616, the court shall award taxable costs as in chancery
80actions, including attorney's fees and guardian ad litem fees.
81     (2)  When awarding taxable costs, including attorney's fees
82and guardian ad litem fees, under this section, the court in its
83discretion may direct payment from a party's interest, if any,
84in the estate or enter a judgment which may be satisfied from
85other property of the party, or both.
86     Section 5.  Section 732.5165, Florida Statutes, is amended
87to read:
88     732.5165  Effect of fraud, duress, mistake, and undue
89influence.-A will is void if the execution is procured by fraud,
90duress, mistake, or undue influence. Any part of the will is
91void if so procured, but the remainder of the will not so
92procured shall be valid if it is not invalid for other reasons.
93If the revocation of a will, or any part thereof, is procured by
94fraud, duress, mistake, or undue influence, such revocation is
95void.
96     Section 6.  Section 732.518, Florida Statutes, is amended
97to read:
98     732.518  Will contests.-An action to contest the validity
99of all or part of a will or the revocation of all or part of a
100will may not be commenced before the death of the testator.
101     Section 7.  Section 736.0207, Florida Statutes, is amended
102to read:
103     736.0207  Trust contests.-An action to contest the validity
104of all or part of a revocable trust, or the revocation of part
105of a revocable trust, may not be commenced until the trust
106becomes irrevocable by its terms or by the settlor's death. If
107all of a revocable trust has been revoked, an action to contest
108the revocation may not be commenced until after the settlor's
109death., except This section does not prohibit such action by the
110guardian of the property of an incapacitated settlor.
111     Section 8.  Section 736.0406, Florida Statutes, is amended
112to read:
113     736.0406  Effect of fraud, duress, mistake, or undue
114influence.-A trust is void If the creation, amendment, or
115restatement of a the trust is procured by fraud, duress,
116mistake, or undue influence, the trust or. any part so procured
117of the trust is void. if procured by such means, but The
118remainder of the trust not procured by such means is valid if
119the remainder is not invalid for other reasons. If the
120revocation of a trust, or any part thereof, is procured by
121fraud, duress, mistake, or undue influence, such revocation is
122void.
123     Section 9.  Subsection (11) of section 744.441, Florida
124Statutes, is amended to read:
125     744.441  Powers of guardian upon court approval.-After
126obtaining approval of the court pursuant to a petition for
127authorization to act, a plenary guardian of the property, or a
128limited guardian of the property within the powers granted by
129the order appointing the guardian or an approved annual or
130amended guardianship report, may:
131     (11)  Prosecute or defend claims or proceedings in any
132jurisdiction for the protection of the estate and of the
133guardian in the performance of his or her duties. Before
134authorizing a guardian to bring an action described in s.
135736.0207, the court shall first find that the action appears to
136be in the ward's best interests during the ward's probable
137lifetime. There shall be a rebuttable presumption that an action
138challenging the ward's revocation of all or part of a trust is
139not in the ward's best interests if the revocation relates
140solely to a devise. This subsection does not preclude a
141challenge after the ward's death. If the court denies a request
142that a guardian be authorized to bring an action described in s.
143736.0207, the court shall review the continued need for a
144guardian and the extent of the need for delegation of the ward's
145rights.
146     Section 10.  Subsection (1) of section 736.0201, Florida
147Statutes, is amended, and subsection (6) is added to that
148section, 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
152shall be commenced by filing a complaint and shall be governed
153by the Florida Rules of Civil Procedure.
154     (6)  Rule 1.525, Florida Rules of Civil Procedure, shall
155apply to judicial proceedings concerning trusts, except that the
156following do not constitute taxation of costs or attorney's fees
157even if the payment is for services rendered or costs incurred
158in a judicial proceeding:
159     (a)  A trustee's payment of compensation or reimbursement
160of costs to persons employed by the trustee from assets of the
161trust.
162     (b)  A determination by the court directing from what part
163of the trust fees or costs shall be paid, unless the
164determination is made under s. 736.1004 in an action for breach
165of fiduciary duty or challenging the exercise of, or failure to
166exercise, a trustee's powers.
167     Section 11.  Except as otherwise expressly provided in this
168act, this act shall take effect upon becoming a law and shall
169apply to all proceedings pending before such date and all cases
170commenced on or after the effective date.


CODING: Words stricken are deletions; words underlined are additions.