Contesting a Trust? We Can Help.

What are the Grounds for Contesting a Trust in Florida?

Trust Contests: A trust contest can be initiated in a variety of ways. An interested person may bring an action to challenge the validity of a trust, to interpret trust provisions, to set aside conveyances to trusts, to include or exclude beneficiaries, remove trustees, and reform the trust. Many of the same claims asserted in will contests can be made in trust contests — particularly lack of mental capacity, undue influence, duress, forgery, fraud, and mistake. Trusts that were improperly created, executed, or funded may also be set-aside.

Trust Reformation/Construction: The law provides that even unambiguous provisions of a trust may be reformed, or re-written, where there is sufficient evidence that the language of the trust does not reflect the settlor’s intent.

Trust Fraud: A trust fraud usually involves the intentional use of deceit, a trick, or some dishonest means to deprive the trust or its beneficiaries of money, property or a legal right.

Undue Influence: Generally, undue influence occurs when a person exerts undue force against someone to execute a trust or amendment to leave assets in a particular way. The key element is that the influence was so great that the grantor of the trust lost his or her ability to exercise his or her judgment and could not refuse to give in to the pressure.

Lack of Mental Capacity: A person who executes a trust (a grantor) must have the requisite mental capacity to do so. If a grantor lacks mental capacity at the time he or she signs the trust, that trust may be invalidated.

Surcharge of Trustee: When a trustee commits bad acts, the trustee may be subject to a surcharge action, in which the trustee is forced to pay money back to the trust.

Removal of Trustee: Removal of a trustee is a drastic remedy and usually results from an intentional violation of a fiduciary duty or from other wrongful conduct, especially where the wrongful conduct is likely to continue without removal of the trustee.

Excessive Trustee Compensation: Trustees are only entitled to receive a reasonable fee for their services, and are not entitled to excessive compensation.

Self-Dealing: Self-dealing occurs when a trustee takes advantage of his or her position as trustee in a transaction and acts for his or her own interests, rather than for the interests of the beneficiaries of the trust.

Breach of Fiduciary Duty: A trustee is a fiduciary to the trust and its beneficiaries, and must uphold the highest duty of care in administering his or her duties. A trustee’s fiduciary duty is breached when the trustee fails to live up to the required duty of care owed to the trust and its beneficiaries.

Trustee Investment Losses: Trustees are held to the standard of “a reasonably prudent trustee” in investing trust assets. Trustees can become personally liable when they fail to live up to their duty to properly invest.

Forgery and Alteration of Instruments: The court may invalidate a forged or altered trust instrument.

Our lawyers sue and defend personal representatives in probate litigation disputes.

Breach of Fiduciary Duty: The personal representative is a fiduciary to the estate and beneficiaries of the estate, and must maintain the highest duty of care in administering his or her duties. The personal representative must act honestly, honorably, and in good faith. Their actions must be completely transparent at all times. When a personal representative does not live up to those standards, he or she has breached his or her fiduciary duty to the estate and its beneficiaries.

Beneficiary Rights: After the death of a decedent, the beneficiaries of the decedent’s estate have the right to information from the personal representative. For example, beneficiaries have the right to an accounting of all activity in the estate. If a beneficiary disagrees with the way that the personal representative is managing estate funds, he or she can go to court and seek relief.

Abuse of Power of Attorney: The law allows a person (a principal) to delegate his or her personal decision-making power to another person (an agent), and that relationship is governed by a legal contract called a power of attorney. When an agent abuses his or her position, the principal has the right to seek relief.

Guardianships and Conservatorships: A guardianship is a legal relationship that gives one or more individuals or agencies the responsibility of the personal affairs of the protected person. A conservatorship is limited to the management of the property and financial affairs of a protected person.

Surcharge of Personal Representative: When a personal representative commits bad acts, the personal representative may be subject to a surcharge action, in which the personal representative is forced to pay money back to the estate.

Removal of Personal Representative: Removal of a personal representative is a drastic remedy and usually results from an intentional violation of a fiduciary duty or from other wrongful conduct, especially where the wrongful conduct is likely to continue without removal of the personal representative.