Florida Probate, Trust & Guardianship Litigation

Do You Need A Copy of the Trust for a Contest?

No, you do not need a copy of the trust to bring a trust contest under Florida law.

In Boren v. Rogers, 5D17-3004 (5th DCA 2018), the trust challengers filed a complaint contesting the validity of a 2013 and 2014 Trust.  The problem was that the Plaintiff, Boren, did not have a copy of either of these trust documents when the lawsuit was filed.

Boren’s complaint alleged that decedent had a longstanding estate plan whereby decedent’s assets would go to certain family members, including Boren, upon Decedent’s death.  However, late in life, when decedent was in failing health and suffering from cognitive deficits, a caregiver befriended the decedent.  The complaint alleged that the caregiver unduly influenced the decedent to execute two trusts at a time when the decedent lacked the capacity to do so.  These trusts made the caregiver the substantial beneficiary and cut Boren out.

The trustee of the trusts (who was also the drafting attorney), argued that Boren did not have standing to sue.  The trustee argued that Boren was required to show that she was a beneficiary under prior trust documents before Boren was entitled to get a copy of the 2013 and 2014 trust documents.

In order to defend against the trustee’s claims, and to pursue her case, Boren served discovery on the caregiver.   Boren asked for copies of all trust documents prepared by the trustee/drafting attorney, or anyone else, from 1992 to the present date, as well as other related documents.

The trustee moved for a protective order.  The trustee argued, among other things, that the 2013 and 2014 trust documents were irrelevant to the pending complaint because Boren did not allege the specific trust (prior to the 2013 and 2014 trust documents) for which Boren claims she is a beneficiary.  Said another way, the trustee refused to provide the trust documents, and then argued that without the trust documents, Boren lacked standing to pursue her case.

The trial court, after hearing and an in-camera review, entered an order finding that Boren was “not entitled to a review of those documents” and granted the trustee’s motion for protective order.

The Florida appellate court determined that this was one of those “rare circumstances when the discovery is relevant or is reasonably calculated to lead to the discovery of admissible evidence and the order effectively eviscerates a party’s claim, defense, or counterclaim,” such that certiorari relief was appropriate.

The Florida appellate court found that:

Boren’s document request is directed at items that, based on the allegations in the amended complaint, would appear to be admissible at trial or otherwise reasonably calculated to lead to admissible evidence.  Moreover, because Boren would need the trust documents at trial to establish that she has standing as a prior interested beneficiary in the trust to bring this suit, the order effectively eviscerates her claim, which cannot be remedied on direct appeal because, at the very least, with no access to these documents, Boren lacks the ability to explain or demonstrate on direct appeal how the trust documents would have established her standing.

The trial court was ordered to permit discovery of the requested trust documents or, alternatively, make the requisite finding of good cause as to why the trust documents must be protected from production.

The takeaway from Boren v. Rogers is that in a Florida trust contest, the trust documents being contested are central to the case and are discoverable. If you are seeking to contest trust documents that you do not have copies of when you file suit, make sure you make allegations supporting what you believe the trust documents might say (such as they cut you out), and why they are invalid.  If the trust documents are central to your claim, Florida’s liberal discovery rules will require the production of the trust documents.  Therefore, you do not need a copy of the trust when you file your Florida trust contest, but a copy of the trust should be pursued immediately in discovery.

Mr. Skatoff was the lead trust attorney in this successful appeal.

Can You Challenge an Oral Trust?

Yes.  There is no requirement that a trust be in writing.

In an age where nearly all business is handled by electronic means, only an original will can be admitted to probate under Florida law.  That is, photocopies will not suffice without some other evidence.  This is not true for missing original Trusts under Florida law, however.  Where evidence of a trust is required—for instance, to establish one’s authority as trustee to transact on an account owned by the trust—a photocopy of the trust instrument will suffice.  Florida law further allows for judicial construction of a trust where only a portion of the trust can be located.   In fact, applicable Florida law doesn’t require the existence of a physical document at all – the Trust document can be completely missing and still govern.

The Restatement of Trusts—a legal treatise which codifies centuries of common law legal doctrine—sets forth that a written document is not necessary in order to create a trust.  Axiomatically, if a trust which was previous reduced to writing cannot be located, its terms can still be established.  Specifically, the Restatement provides that a trust may be created as follows:

(a)        A declaration by the owner of property that he holds it as trustee for another person; or

(b)        A transfer inter vivos by the owner of property to another person as trustee for the transferor or for a third person; or

(c)        A transfer by will by the owner of property to another person as trustee for a third person; or

(d)       An appointment by one person having a power of appointment to another person as trustee for the donee of the power or for a third person; or

(e)        A promise by one person to another person whose rights thereunder are to be held in trust for a third person.

Florida law has evolved to explicitly reflect the principle that a trust may exist in the absence of a formal writing.  For instance, our Trust Code does not require a written instrument in order to create a trust.  Instead, there need only be (i) capacity and intent to make a trust; (ii) a definite beneficiary or charity (with some exceptions); (iii) duties for the trustee to perform; and (iv) distinct trustee(s) and beneficiary(ies).  Fla. Stat. § 736.0402.  The Code further permits one to establish a trust’s terms using evidence other than the trust instrument itself.  Fla. Stat. § 736.0103(21).  Where the existence of a trust is known but its terms are not, individuals can initiate judicial proceedings for the purpose of construing a trust’s terms.  Fla. Stat. § 736.0201.

While establishing the terms and validity of a will in the absence of the original document is often a complex undertaking, the same is not typically true with trusts.  Florida law does not require an original signature in order to give effect to a trust instrument.  In many instances, the trust can be established and administered in the absence of any writing, that is, the trust document can be missing entirely under Florida law.  

Oral Argument at 5th District Court of Appeals

Jeffrey Skatoff

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(561) 842-4868


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