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January 19, 2023

Florida trust litigation refers to legal disputes that arise involving trusts in the state of Florida. These disputes can include issues such as trust interpretation, breach of trust, and removal of trustees. Trust litigation can be a complex and time-consuming process.

Our office litigates disputes among Trustees and beneficiaries throughout the state of Florida. A common question that comes up is often related to how to contest or challenge the validity of a Trust under Florida law.


Just like a Will Contest, disputes over Trust creation take some common themes. One common method to challenge a Florida Trust is an allegation that the grantor (the person making the trust) lacked capacity. So what is the standard in Florida. Fla. Stat. 732.501 provides:

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.

Not a whole lot to it but it spells out that you must have sound mind. The Florida Supreme Court, going all the way back to 1918 has given us some clarity as to capacity by clarifying that you need to know the “nature and object” of your bounty. In plain English this means you must have the sufficient mental capacity to know what your assets are and who they will be going to. Newman v. Smith, 688 So. 236 (Fla. 1918).

Some practical tips regarding capacity, it is the capacity at the time of the execution of the Trust that matters. The burden of proving that the person who executed the document did not have sufficient capacity is with the challenger. This can be hard to do under Florida law as the Court’s consistently recognize the rights of private citizens to leave their assets how they please. So how do Florida court’s prove incapacity to invalidate a trust? Mental capacity can be established through direct evidence (people who were present at the time of the execution of the trust). Alternatively, or in addition to these cases often involve a lot of circumstantial evidence. Medical records or people that generally interacted with the decedent or treated the decedent on or about the times in which the documents were signed. Any medical issue that significantly indicates cognitive impairment can be a warning sign of the lack of appropriate capacity at the time of execution. Any history of dementia, Alzheimer’s, brain disease etc…


The most common way to challenge a Last will and Testament or a Trust in Florida is undue influence. This is overexertion to the extent that the person signing the document was not able to effectuate their true wishes and that they are instead the product of the influencer. The Florida Supreme Court in IN RE Carpenter, 253 So.2d 697 (Fla. 1971) set forth basic elements that have an important burden shifting property in cases of undue influence in Florida. How would you ever prove years after the fact that a document was not the intention of the person signing it? Its difficult to prove directly but the Florida Courts have given three basic elements to establish:

  1. A Confidential Relationship

Did the influencer occupy a position of trust or were they the person that provided care, access to family members for communication? A power of attorney etc…

  1. Substantial Beneficiary

Did the alleged influencer receive because of the Trust or will a substantial benefit? (this is almost always present).

  1. Active Procurement

Did they influencer actively obtain the document? Did they pay for the lawyer to create it, drive the person to the location? Keep a copy or the original of the document?

These Carpenter elements under Florida law create a burden shift that is recognized by statute.

733.107 Burden of proof in contests; presumption of undue influence.—

(1) In all proceedings contesting the validity of a will, the burden shall be upon the proponent of the will to establish prima facie its formal execution and attestation. A self-proving affidavit executed in accordance with s. 732.503 or an oath of an attesting witness executed as required in s. 733.201(2) is admissible and establishes prima facie the formal execution and attestation of the will. Thereafter, the contestant shall have the burden of establishing the grounds on which the probate of the will is opposed or revocation is sought.

(2) The presumption of undue influence implements public policy against abuse of fiduciary or confidential relationships and is therefore a presumption shifting the burden of proof under ss. 90.301-90.304.

That means in plain English that the challenger, if they prove these elements has now shifted the burden of proof so now the respondent (the other side) must prove that the document was not a product of undue influence. This can be accomplished by testimony or circumstantial evidence to rebut the presumption.

If you or a loved one is facing a trust dispute, don’t hesitate to reach out for legal assistance. Our law firm specializes in trust litigation throughout the state of Florida, and we have the experience and knowledge necessary to help you navigate the complex process. Whether you’re looking to contest a trust, remove a trustee, or interpret a trust document, we’re here to help. We offer free consultations, so you can discuss your case with one of our attorneys without any obligation. Don’t let a trust dispute leave you feeling overwhelmed or confused. Contact our law firm today and let us help you find a resolution.

-Brice Zoecklein, Esq.