In 2011 the Florida legislature passed CS/HB 325, which, among other things, amended F.S. 736.0406 to statutorily overturn a line of cases — including MacIntyre v. Wedell, 12 So.3d 273 (Fla. 4th DCA 2009) — standing for the proposition that the revocation of a revocable trust could not be challenged on undue influence grounds.

If the MacIntyre rule doesn’t make sense to you, don’t worry, you’re in good company. A lot of really smart people took one look at that decision and quickly concluded a legislative fix was needed. Here’s how the case for a statutory override was made in this Florida Bar RPPTL Section White Paper:

Due to MacIntyre, it appears that an interested person cannot successfully bring a post-death proceeding contesting revocation of a revocable trust on undue influence grounds when the trust revocation was executed by a competent settlor. Presumably, MacIntyre may be extended to bar a post-death challenge to the revocation of revocable trust based on fraud, duress, or mistake, leaving lack of testamentary capacity as the sole grounds for such a challenge.

If Florida courts do not permit a post death challenge to a settlor’s revocation of the settlor’s revocable trust, the problems appear evident. First, intended trust beneficiaries can be deprived of their inheritance, but yet have no remedy to correct the wrongdoing. If a sole intestate heir unduly influences the settlor to revoke the settlor’s revocable trust, which left everything to the settlor’s favorite charity, thereby causing the will pour over clause to fail, then the property would pass by intestacy. See § 732.513(4), Fla. Stat. The favorite charity would be denied a remedy.

Additionally, any time a party brings a trust contest challenging an amendment or a restatement of trust, the contest challenges not only the validity of the challenged part, but also the revocation of the prior part. It is inconsistent to be able to challenge the revocation of a prior amendment by challenging the subsequent amendment, but to be unable to solely challenge a revocation of the trust or a part of the trust. It also is inconsistent to allow a post death challenge to an amendment to a revocable trust, but not permit a challenge to the revocation of the trust itself.

Further, once a settlor has died, the ability to challenge a trust revocation ought to be consistent with the ability to challenge a revocation of a will, especially since revocable trusts serve as will substitutes. A revocation of a will is subject to a post death challenge on the grounds that the revocation was procured by fraud, duress or undue influence. Restatement (Third) of Property (Wills & Don. Trans.) § 4.1 (1999).

Finally, the dissents’ reasoning in both Genova opinions is persuasive. If a settlor is unduly influenced to revoke her revocable trust, then the revocation is not a free act of the settlor, but the will of another.

The Bar’s view carried the day with the legislature, which amended F.S. 736.0406 to override MacIntyre by explicitly providing that the revocation of a revocable trust could be challenged on undue influence grounds. Here’s how the statute was amended back in 2011 (pay special attention to the last sentence):

Against this backdrop you’d think the whole can-I-challenge-revocation-of-a-revocable-trust-on-undue-influence-grounds question would’ve been settled long ago … and you’d be wrong.

Case study:

Boyles v. Jimenez, — So.3d —, 2021 WL 4073391 (Fla. 4th DCA September 08, 2021):

This case involved a disbarred attorney who wrote himself into his client’s revocable trust as her successor trustee. The client revoked her trust and signed a new trust naming someone else successor trustee. After client died her former attorney challenged client’s revocation of her revocable trust on undue influence grounds.

Can you challenge the revocation of a revocable trust on undue influence grounds? Statute says YES, 4th DCA says NO.

The undue influence challenge to the revocation may or may not have had merit on the facts (we’ll never know), but no one can say it’s not a legally viable theory, right? Wrong. According to the 4th DCA, this claim is barred as a matter of law:

To the extent Boyles contends the 2015 trust’s revocation was attributable to undue influence, his argument fails as undue influence has no application to a revocable trust. Fla. Nat’l Bank of Palm Beach Cnty. v. Genova, 460 So. 2d 895, 896–98 (Fla. 1984) (a mentally competent settlor may revoke a revocable trust, regardless of whether the decision was the product of undue influence); MacIntyre v. Wedell, 12 So. 3d 273, 275 (Fla. 4th DCA 2009) (“[E]ven after the settlor’s death, the settlor’s revocation of her revocable trust during her lifetime is not subject to challenge on the ground that the revocation was the product of undue influence.”). Moreover, there is no evidence that, when signing the revocation letter a mere two days after naming Boyles as trustee, the testatrix was mentally incompetent. Although Boyles received the revocation and removal documents in April 2016, he made no effort to challenge the testatrix’s competence before her August 2017 death.

Yea, this is a problem.

The outcome of this case didn’t turn on this one paragraph, so I’m going to characterize it as obiter dicta. That being said, it’s a problem.

First, this paragraph relies on a line of case law — including MacIntyre — that was statutorily reversed 10 years ago! when F.S. 736.0406 was amended to explicitly provide that the revocation of a revocable trust could be challenged on undue influence grounds. Second, even if no one brought this legislative history up to the court, the court’s holding is contrary to the clear text of F.S. 736.0406, which the court never even mentions in its opinion. You’d think if someone was making an appellate argument about revoking a trust on undue influence grounds, a good place to start when reviewing that argument would be the controlling statute.

Anyway, I predict the Boyles opinion is going to cause headaches for judges and litigants alike. You’ve been warned.

And we have a fix … maybe?

The damage caused by the Boyles opinion won’t be as bad as initially predicted. The 4th DCA withdrew its opinion dated September 8, 2021, and issued the following opinion in its place:

Boyles v. Jimenez, — So.3d —-, 2021 WL 5822138 (Fla. 4th DCA December 08, 2021):

In this opinion the 4th DCA didn’t concede that yes, there’s a statute that says you can challenge the revocation of a revocable trust on undue influence grounds (F.S. 736.0406), but at least they cut out the portion of their original opinion that was directly contrary to the statute. The opinion now skirts the issue by upholding the underlying trial court’s order on “alternative grounds” as follows:

To the extent that Boyles contends there is a genuine issue of material fact as to whether the 2015 trust’s revocation was rendered void due to undue influence and/or incompetency, we note that alternative grounds existed for granting summary judgment. There is no dispute that the 2015 trust permits removal of a trustee by “a majority of the beneficiaries then eligible to receive mandatory or discretionary distributions of net income under this Agreement,” and Appellees established that two of the 2015 trust’s three beneficiaries supported Boyles’ removal (if the 2015 trust was deemed to have not been revoked).

Accordingly, no genuine issue of material fact existed. The trial court properly found, on summary judgment, that the testatrix revoked the 2015 trust two days after creating it or, alternatively, that a majority of the trust’s beneficiaries would remove Boyles as trustee if the 2015 trust was deemed to be the operative trust.

So yea, this is an improvement, but would it have been so bad to admit your original mistake and cite to the controlling statute?