Fla. Stat. § 736.0601 - Commentary to Florida Trust Code

Legal Commentary on Fla. Stat. § 736.0601

Fla. Stat. § 736.0601 establishes the capacity level required for someone to act as a trust settlor in any manner. To act, a settlor must have the same level of capacity required to make a will. The level of capacity required to make a will is found in Fla. Stat. § 732.501:

Who may make a will.—Any person who is of sound mind and who is either 18 or more years of age or an emancipated minor may make a will.

Thus, there are two components to settlor capacity: age and sound mind. To satisfy the age requirement, the settlor need be either 18 years of age or an emancipated minor. However, the sound mind requirement is more complex. The Third District Court of Appeal explained the sound mind requirement in Raimi v. Furlong, 702 So.2d 1273, 1286 (Fla. 3d DCA 1994):

To execute a valid will, the testator need only have testamentary capacity (i.e. be of "sound mind") which has been described as having the ability to mentally understand in a general way (1) the nature and extent of the property to be disposed of, (2) the testator's relation to those who would naturally claim a substantial benefit from his will, and (3) a general understanding of the practical effect of the will as executed.

Put differently, to have sound mind, a settlor needs to have “the ability to mentally understand in a general way” what assets are being disposed of by trust, who is or likely will be a beneficiary of the trust, and generally what the trust will do to the settlor’s assets. Notably, the Raimi definition of capacity does not include actual understanding; rather, the emphasis is on the ability to understand.

Capacity need only be present during a “lucid interval" when the instrument is signed. Id. The Florida Supreme Court similarly stated in In re Wilmott's Estate, 66 So.2d 465, 468(Fla. 1953):

Indeed, it is possible that a testator may have testamentary capacity even though it is proven that he was somewhat under the influence of drugs at the time he executes a will. The same is true where the ravages of disease combine with the effects of drugs. In such situations, as in all others, the question to be determined is solely that of the mental capacity of the testator at the time he executes the instrument.

Therefore, to act as settlor in any manner, the settlor need only have a lucid moment in which the settlor generally understands the impact of his actions on the trust assets and beneficiaries. However, absent that lucid moment, a settlor lacks the capacity to act.

Text of Fla. Stat. § 736.0601

Capacity of settlor of revocable trust.—The capacity required to create, amend, revoke, or add property to a revocable trust, or to direct the actions of the trustee of a revocable trust, is the same as that required to make a will.

History of Fla. Stat. § 736.0601

Fla. Stat. § 736.0601 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 of Fla. Stat. § 736.0601 was taken verbatim from § 601 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.