Fla. Stat. § 736.0415 - Commentary to Florida Trust Code

Legal Commentary on Fla. Stat. § 736.0415

Fla. Stat. § 736.0415 establishes that a trust may be reformed to eliminate a mistake if it is shown by clear and convincing evidence (1) that the the reformation would accomplish the settlor’s intent and (2) that the terms of the trust were affected by a mistake of fact or law. In Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the Fourth District Court of Appeal explained what constitutes clear and convincing evidence:

[C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established

Prior to the enactment of Fla. Stat. § 736.0415, the Fourth District Court of Appeal held in Robinson v. Robinson that “a trust with testamentary aspects may be reformed after the death of the settlor for a unilateral drafting mistake so long as the reformation is not contrary to the interest of the settlor.” 720 So. 2d 540, 543 (Fla. 4th DCA 1998). The court also noted that this holding applied only to reformation “based on a unilateral mistake in contents, not in the inducement.” Id. at 541. Thus, some support already existed in Florida common law for reforming simple drafting errors. However, Fla. Stat. § 736.0415 is significantly broader in scope, as it allows both for reformation of mistakes in expression and in the inducement.

The First District Court of Appeal interpreted the statute section broadly, noting:

Reformation is available for a mistake in the form of expression or articulation—an error that “arises when a donative document includes a term that misstates the donor's intention ..., fails to include a term that was intended to be included ..., or includes a term that was not intended to be included.” Restatement (Third) of Prop.: Wills & Other Donative Transfers § 12.1 cmt. i (2003).

Morey v. Everbank & Air Craun, Inc., 93 So.3d 482, 491 (Fla. 1st DCA 2012). However, only the terms of a trust may be reformed through Fla. Stat. § 736.0415; a defective trust execution may not be reformed through this statute section. Kelly v. Lindenau, 223 So.3d 1074, 1077 (Fla. 2d DCA 2017).

The terms of a trust may not forbid the ability to correct mistakes under Fla. Stat. § 736.0415. This is a mandatory rule under Fla. Stat. § 736.0105(2)(j).

Text of Fla. Stat. § 736.0415

Reformation to correct mistakes.—Upon application of a settlor or any interested person, the court may reform the terms of a trust, even if unambiguous, to conform the terms to the settlor’s intent if it is proved by clear and convincing evidence that both the accomplishment of the settlor’s intent and the terms of the trust were affected by a mistake of fact or law, whether in expression or inducement. In determining the settlor’s original intent, the court may consider evidence relevant to the settlor’s intent even though the evidence contradicts an apparent plain meaning of the trust instrument.

History of Fla. Stat. § 736.0415

Fla. Stat. § 736.0415 became law on July 1, 2007 as part of the Florida Trust Code. It has not been amended or revised since that date.

The text is heavily based on Uniform Trust Code § 415, which reads:

REFORMATION TO CORRECT MISTAKES. The court may reform the terms of a trust, even if unambiguous, to conform the terms to the settlor’s intention if it is proved by clear and convincing evidence what the settlor’s intention was and that the terms of the trust were affected by a mistake of fact or law, whether in expression or inducement.

The last sentence of Fla. Stat. § 736.0415 is not present in Uniform Trust Code § 415 but instead was copied almost verbatim from the commentary to § 415 of the Uniform Trust Code.

This article is part of the PTM Legal Commentary to the Florida Trust Code. Click here to navigate through the entire commentary.