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. |