House Bill 0599

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    Florida House of Representatives - 2000                 HB 599

        By Representatives Goodlette and Gottlieb






  1                      A bill to be entitled

  2         An act relating to the rule against

  3         perpetuities; amending s. 689.225, F.S.;

  4         revising certain criteria for application of

  5         the rule to certain trusts; specifying

  6         exclusivity of application of the rule;

  7         excluding common-law expressions; creating ss.

  8         737.4031, 737.4032, and 737.4033, F.S.;

  9         providing for judicial and nonjudicial

10         modifications of certain trusts under certain

11         circumstances; providing for representation of

12         certain persons in modification actions;

13         specifying nonapplication to certain trusts;

14         providing definitions; providing construction;

15         providing application relating to common law;

16         providing for award of costs and attorney fees

17         in modification proceedings; providing an

18         effective date.

19

20  Be It Enacted by the Legislature of the State of Florida:

21

22         Section 1.  Paragraph (f) is added to subsection (2) of

23  section 689.225, Florida Statutes, and subsection (7) of said

24  section is amended, to read:

25         689.225  Statutory rule against perpetuities.--

26         (2)  STATEMENT OF THE RULE.--

27         (f)  As to any trust created after December 31, 2000,

28  this section shall apply to a nonvested property interest or

29  power of appointment contained in a trust by substituting

30  "1,000 years" in place of "90 years" in each place such term

31  appears in this section unless the terms of the trust require

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  1  that all beneficial interests in the trust vest or terminate

  2  within a lesser period.

  3         (7)  RULE OF CONSTRUCTION.--With respect to any matter

  4  relating to the validity of an interest within the rule

  5  against perpetuities, unless a contrary intent appears, it

  6  shall be presumed that the transferor of the interest intended

  7  that the interest be valid. This section is the sole

  8  expression of any rule against perpetuities, remoteness in

  9  vesting, or restraint upon the power of alienation or

10  accumulations in this state.  No common-law rule against

11  perpetuities, remoteness in vesting, or restraint upon the

12  power of alienation or accumulations shall exist with respect

13  to any interest or power regardless of whether such interest

14  or power is governed by this section.

15         Section 2.  Sections 737.4031, 737.4032, and 737.4033,

16  Florida Statutes, are created to read:

17         737.4031  Judicial modification of trusts.--

18         (1)  If the purposes of a trust have been fulfilled or

19  have become illegal or impossible to fulfill or, if because of

20  circumstances not known to or anticipated by the settlor,

21  compliance with the terms of the trust would defeat or

22  substantially impair the accomplishment of a material purpose

23  of the trust or, if a material purpose of the trust no longer

24  exists, upon the application of a trustee or any beneficiary a

25  court at any time may modify the terms of a trust which is not

26  then revocable to:

27         (a)  Amend or change the terms of the trust, including

28  terms governing distribution of the trust income or principal,

29  or terms governing administration of the trust;

30         (b)  Terminate the trust in whole or in part;

31

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  1         (c)  Direct or permit the trustee to do acts that are

  2  not authorized or that are prohibited by the terms of the

  3  trust; or

  4         (d)  Prohibit the trustee from performing acts that are

  5  permitted or required by the terms of the trust.

  6         (2)  Upon the application of the trustee or any

  7  beneficiary, a trust which is not then revocable may be

  8  modified at any time by a court as provided in subsection (1),

  9  and without regard to the reasons for modification provided in

10  subsection (1), if compliance with the terms of the trust is

11  not in the best interest of the persons having a beneficial

12  interest in the trust.

13         (a)  The court shall exercise its discretion to order a

14  modification of the trust under this subsection in a manner

15  that conforms to the extent possible with the intention of the

16  settlor, taking into account the current circumstances and

17  best interests of the beneficiaries.

18         (b)  This subsection shall not apply to a trust created

19  prior to January 1, 2001.

20         (c)  This subsection shall not apply to a trust created

21  after December 31, 2000, if:

22         1.  Under the terms of the trust, all beneficial

23  interests in the trust must vest or terminate within the

24  period prescribed by the rule against perpetuities in s.

25  689.225(2), notwithstanding s. 689.225(2)(f), and

26         2.  The terms of the trust expressly prohibit

27  modification.

28         (d)  Modification of a trust, as authorized in this

29  subsection, is not prohibited by a provision in the trust

30  instrument that prohibits amendment or revocation of the trust

31

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  1  if the provision does not expressly prohibit judicial

  2  modification pursuant to this subsection.

  3         (3)  In exercising its discretion to order a

  4  modification of a trust under this section, the court shall

  5  consider the terms and purposes of the trust, the facts and

  6  circumstances surrounding the creation of the trust, and

  7  extrinsic evidence relevant to the proposed modification.

  8         (4)  To the extent the interests of any person with a

  9  beneficial interest in the trust who is unborn or

10  unascertained, whose identity is not then known for any

11  reason, or who is a minor or under a legal disability are not

12  represented by another beneficiary, such person shall be

13  represented by the person's legal guardian, if any, or, if

14  none, by a guardian ad litem appointed by the court upon the

15  court's own motion or upon application by the trustee or any

16  beneficiary.

17         (5)  The court shall consider spendthrift provisions as

18  a factor in making a decision whether to modify a trust under

19  this section, but the court is not precluded from exercising

20  authority to modify the trust because the trust contains

21  spendthrift provisions.

22         (6)  For purposes of this section:

23         (a)  "Beneficiary" means:

24         1.  All current income or principal beneficiaries,

25  whether the beneficiaries' beneficial interests are

26  discretionary or mandatory.

27         2.  All reasonably ascertainable beneficiaries if all

28  current income interests immediately terminated, determined as

29  if any power of appointment over the trust assets were not

30  exercised.

31         (b)  "Trust" means trust as defined in s. 731.201.

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  1         (c)  A trust is revocable if revocable by the settlor

  2  alone or in conjunction with any other person.  A trust is not

  3  revocable for purposes of this section if revocable by the

  4  settlor only with the consent of all persons having a

  5  beneficial interest in the property.

  6         (d)  A trust which is revocable shall be treated as

  7  created when the right of revocation terminates.

  8         (7)  The provisions of this section are in addition to,

  9  and not in derogation of, rights under the common law to

10  modify, amend, or revoke trusts.

11         737.4032  Nonjudicial modification of trusts.--

12         (1)  A trust which is not revocable may be modified at

13  any time after the settlor's death, upon the unanimous

14  agreement of the trustee and all beneficiaries of the trust,

15  to:

16         (a)  Amend or change the terms of the trust, including

17  terms governing distribution of the trust income or principal

18  or terms governing administration of the trust;

19         (b)  Terminate the trust in whole or in part;

20         (c)  Direct or permit the trustee to do acts that are

21  not authorized or that are prohibited by the terms of the

22  trust; or

23         (d)  Prohibit the trustee from performing acts that are

24  permitted or required by the terms of the trust.

25         (2)  This section shall not apply to any trust for

26  which a charitable deduction is allowed or allowable under the

27  Internal Revenue Code until the termination of all charitable

28  interests in the trust.

29         (3)  An agreement to modify a trust under this section

30  shall be binding upon a person with a beneficial interest in

31  the trust who is unborn or unascertained, whose identity is

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  1  not then known for any reason, or who is a minor or under a

  2  legal disability, to the extent that his or her interest is

  3  represented by another beneficiary having the same or greater

  4  quality of beneficial interest in the trust, but only to the

  5  extent there is no conflict of interest between such person

  6  and such beneficiary or among the persons represented.

  7         (4)  To the extent the interests of any person having a

  8  beneficial interest in a trust who is unborn or unascertained,

  9  whose identity is not then known for any reason, or who is a

10  minor or under a legal disability are not represented by a

11  beneficiary under subsection (3), such person shall be

12  represented by the person's legal guardian if there is one or,

13  if the person does not have a legal guardian, such person

14  shall be represented by a guardian ad litem appointed by the

15  court upon application by the trustee or any beneficiary.

16  Unless the court requires otherwise, the guardian ad litem's

17  decision whether to consent to modify the trust shall be

18  binding upon any person represented by the guardian ad litem

19  without seeking court approval.

20         (5)  This section shall not apply to a trust created

21  prior to January 1, 2001.

22         (6)  This section shall not apply to a trust created

23  after December 31, 2000, if, under the terms of the trust, all

24  beneficial interests in the trust must vest or terminate

25  within the period prescribed by the rule against perpetuities

26  in s. 689.225(2), notwithstanding s. 689.225(2)(f), unless the

27  terms of the trust expressly permit modification under this

28  section.

29         (7)  Modification of a trust as authorized in this

30  section is not prohibited by a spendthrift clause, or by a

31  provision in the trust instrument that prohibits amendment or

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  1  revocation of the trust but that does not expressly refer to

  2  modification under this section.

  3         (8)  For purposes of this section:

  4         (a)  "Beneficiary" means:

  5         1.  All current income or principal beneficiaries,

  6  whether the beneficiaries' beneficial interests are

  7  discretionary or mandatory.

  8         2.  All reasonably ascertainable beneficiaries if all

  9  current income interests immediately terminated, determined as

10  if any power of appointment over the trust assets were not

11  exercised.

12         (b)  "Trust" means trust as defined in s. 731.201.

13         (c)  A trust is revocable if revocable by the settlor

14  alone or in conjunction with any other person.  A trust is not

15  revocable for purposes of this section if revocable by the

16  settlor only with the consent of all persons having a

17  beneficial interest in the property.

18         (d)  A trust which is revocable shall be treated as

19  created when the right of revocation terminates.

20         (9)  The provisions of this section are in addition to,

21  and not in derogation of, rights under the common law to

22  modify, amend, or revoke trusts.

23         737.4033  Costs and attorney's fees.--In all

24  proceedings under s. 737.4031 or s. 737.4032, the court shall

25  award taxable costs as in chancery actions, including

26  attorney's fees and guardian ad litem fees, and such costs may

27  be paid from the trust or as otherwise directed by the court.

28         Section 3.  This act shall take effect December 31,

29  2000.

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    Florida House of Representatives - 2000                 HB 599

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  2                          HOUSE SUMMARY

  3
      Revises time limit criteria in applying the statutory
  4    rule against perpetuities to trusts created after
      December 31, 2000. Specifies exclusivity of application
  5    of the rule and excludes common-law expressions of the
      rule. Provides for judicial and nonjudicial modifications
  6    of trusts under specified circumstances, specifies
      nonapplication to specified trusts, and provides for
  7    award of costs and attorney fees in modification
      proceedings. See bill for details.
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