CopyCited 5 times | Published | Florida 4th District Court of Appeal | 2013 Fla. App. LEXIS 9614, 2013 WL 3014115
...he record raises even the slightest doubt that an issue might exist, summary judgment is improper.’ ” Shaw v. Tampa Elec. Co.,
949 So.2d 1066, 1069 (Fla. 2d DCA 2007) (quoting Snyder v. Cheezem Dev. Corp.,
373 So.2d 719, 720 (Fla. 2d DCA 1979)). Section
736.04113, Florida Statutes (2011), provides the legal framework for Harriet’s action. Section
736.04113(1)(b) authorizes a court to modify the terms of an irrevocable trust where “[b]ecause of circumstances not anticipated by the set-tlor, compliance with the terms of the trust would defeat or substantially impair the accomplishment...
...lished, a court is authorized to modify the trust by, among other things, “[a]mend[ing] or changing] the terms of the trust, including terms governing distribution of the trust income or principal or terms governing administration of the trust.” § 736.04113(2)(a), Fla. Stat. (2011). As for the evidence that a court should consider in an action under section 736.04113, subsection (3)(a) provides, In exercising discretion to modify a trust under this section: (a) The court shall consider the terms and purposes of the trust, the facts and circumstances surrounding the creation of the trust, and extrinsic evidence relevant to the proposed modification....
...ces of the Settlor’s beliefs about the significance of family bloodlines. Whether this adult adoption “substantially impair[s] the accomplishment of a material purpose of the trust” is an issue inappropriate for resolution on summary judgment. § 736.04113(l)(b), Fla....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 2016 Fla. App. LEXIS 18470
...after the Former Husband initially funded the Trust with $10 cash.
-3-
assets . . . . Such presumption is overcome by a showing that the assets . . . are
nonmarital assets . . . ." §
61.075(8).
Section
736.04113(1) states: "Upon the application of a trustee of the trust
or any qualified beneficiary, a court at any time may modify the terms of a trust that is
not then revocable ....
...beneficiary makes such an application to the trial court, the statute states that the trial
court "shall consider the terms and purposes of the trust, the facts and circumstances
surrounding the creation of the trust, and extrinsic evidence relevant to the proposed
modification." § 736.04113(3)(a)....
...a home from claims made by his
heirs in the event he were to predecease the Former Wife during the marriage. He
asserts that the purpose of the establishment of the Trust is no longer necessary now
that the parties have divorced and contends that section 736.04113 authorized the trial
court to modify the Trust and thus reach the assets of the Trust for the purpose of
equitable distribution. The unambiguous language of section 736.04113(1) compels us
to decline the Former Husband's invitation to construe section 736.04113 in that
manner.
Furthermore, the record is devoid of any evidence that the Former Wife,
as trustee and beneficiary, filed an application to request modification or termination of
the Trust in the first instance....
...he Trust instrument, made application
for such a modification or revocation. Absent an application made by a trustee or
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beneficiary of the Trust requesting modification or termination, the text of section
736.04113 yields but one conclusion—the trial court had no authority to modify the Trust
and reach the California home, an asset of the irrevocable Trust. See §
736.04113; cf.
In re Marriage of Epperson, 107 P.3d 1268, 1274 (Mont. 2005) (affirming trial court's
termination of family irrevocable trust under judicial termination statute similar to section
736.04113, where husband trustee petitioned for termination, finding purpose of trust
defeated upon family's disintegration).
Although the California home became a marital asset pursuant to section
61.075(6)(a)(1)(a) at the...
...provisions affecting a settlor's spouse upon the dissolution of marriage, §
736.1105, and
the Florida Probate Code likewise contains a statute voiding will provisions affecting a
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Although section
736.04113 does not abrogate the trial court's common
law authority to modify or terminate an irrevocable trust, the trial court here made no
mention of modifying or terminating the Trust under the common law. §
736.04113(4)
("The provisions of this section are in addition to, and not in derogation of, rights under
the common law to modify, amend, terminate, or revoke trusts.")....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal
...rial fact existed and that each party was entitled to a judgment as a matter of law. The trial court found that no issues of material fact existed and granted summary judgment in favor of Cosden and directed termination of the Trust, citing sections
736.04113 and
736.04115, Florida Statutes (2015). Section
736.04113 entitled "Judicial modification of irrevocable trust when modification is not inconsistent with settlor's purpose," provides in pertinent part as follows: (1) Upon the application of a trustee of the trust or any qualified beneficia...
...ifying a trust because the trust contains spendthrift provisions. (4) The provisions of this section are in addition to, and not in derogation of, rights under the common law to modify, amend, terminate, or revoke trusts. The trial court stated that section
736.04113 allowed for termination of a trust "if the purposes of the trust have become fulfilled or wasteful." Section
736.04115, entitled "Judicial modification of irrevocable trust when modification is in best interests of beneficiaries," provides in pertinent part as follows: (1) Without regard to the reasons for modification provided in s.
736.04113, if compliance with the terms of a trust is not in the best interests of the beneficiaries, upon the application of a trustee or any qualified beneficiary, a court may at any time modify a trust that is not then revocable as provided in s.
736.04113(2)....
...Nothing in the record indicates that the Settlor was unaware that markets fluctuate. And the Settlor purposefully chose two trustees and was aware of trustees' fees and administration expenses because she provided for them in the Trust. Based on the undisputed circumstances, as a matter of law, neither section
736.04113 nor section
736.04115 supports the termination of the Trust....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 2008 WL 2356814
...he trust, the facts and circumstances surrounding the creation of the trust, and extrinsic evidence relevant to the proposed modification. § 737.4031(1), (3) Fla. Stat. (2006) (repealed by ch.2006-217, § 48, Laws of Fla.) (emphasis added); [4] see § 736.04113, Fla....
...This judicial modification statute does not apply to trusts created after December 31, 2000, whose beneficial interests may vest or terminate no later than 21 years after the death of an individual then alive or within 90 years of its creation, if the trust instrument expressly prohibits judicial modification. [5] Section 736.04113(1), Florida Statutes (2007), in pertinent part, provides: (1) Upon the application of a trustee of the trust or an qualified beneficiary, a court at any time may modify the terms of a trust that is not then revocable in the manner p...
CopyPublished | Florida 2nd District Court of Appeal
...contending that no issues of material fact existed and that each party was entitled to a
judgment as a matter of law. The trial court found that no issues of material fact existed
and granted summary judgment in favor of Cosden and directed termination of the
Trust, citing sections
736.04113 and
736.04115, Florida Statutes (2015).
Section
736.04113 entitled "Judicial modification of irrevocable trust when
modification is not inconsistent with settlor's purpose," provides in pertinent part as
follows:
(1) Upon the application of a trustee of the trust or any...
...provisions.
(4) The provisions of this section are in addition to, and not
in derogation of, rights under the common law to modify,
amend, terminate, or revoke trusts.
The trial court stated that section
736.04113 allowed for termination of a trust "if the
purposes of the trust have become fulfilled or wasteful."
Section
736.04115, entitled "Judicial modification of irrevocable trust when
modification is in best interests of beneficiaries," provides in pertinent part as follows:
(1) Without regard to the reasons for modification provided in
s.
736.04113, if compliance with the terms of a trust is not in
the best interests of the beneficiaries, upon the application of
a trustee or any qualified beneficiary, a court may at any
time modify a trust that is not then revocable as provided in
s.
736.04113(2).
(2) In exercising discretion to modify a trust under this
section:
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(a) The court shall exercise discretion in a manner that...
...Nothing in the record indicates that the Settlor was unaware that
markets fluctuate. And the Settlor purposefully chose two trustees and was aware of
trustees' fees and administration expenses because she provided for them in the Trust.
Based on the undisputed circumstances, as a matter of law, neither
section
736.04113 nor section
736.04115 supports the termination of the Trust.
Therefore, we reverse the order on the motions for summary judgment and the final
judgment and remand for the trial court to enter a final summary judgment in favor of...
CopyPublished | Florida 2nd District Court of Appeal | 2014 WL 768827, 2014 Fla. App. LEXIS 2571
...Daniel also argued that the trial court could not terminate the CLP Trust because under section 786.04113, Florida Statutes (2012), the trust’s purposes remained unfulfilled. 2 Unpersuaded by Daniel’s arguments, the trial court terminated the CLP Trust. The trial court observed that section 736.04113 does not limit the trial court’s common-law authority to terminate a trust. See § 736.04113(4) (“The provisions of this section are in addition to, and not in derogation of, rights under the common law to modify, amend, terminate, or revoke trusts.”)....
...l trust terms, and subsequent events, including four marriages, established that the modification was in Ernice’s best interests. Preston,
294 So.2d at 13, 14 . Here, Daniel argues that the trial court erred in terminating the CLP Trust before the section
736.04113(1) termination requirements had been met and allowing a principal distribution not in accord with CLP Trust provisions....
...y or terminate the trust, with the beneficiaries’ consent, even if it defeated her father’s intent as to how she could access his assets once distributed to the CLP Trust. The trial court correctly relied on Preston . Pursuant to subsection (4), section 736.04113 does not abrogate the common law. Accordingly, termination of the CLP Trust was not improper. Affirmed. VILLANTI and CRENSHAW, JJ., Concur. . For ease of reference and to avoid confusion, we will refer to each of the Peck family members by their respective first names. . Section 736.04113 provides, in pertinent part, as follows: (1) Upon the application of a trustee of the trust or any qualified beneficiary, a court at any time may modify the terms of a trust that is not then revocable in the manner provided in subse...
...inate, or revoke trusts. . See W. Michael Parrott, "Pitfalls and Minefields in Estate Planning,” BEP FL-CLE 2-1 § 2.58 (2012) (citing ch. 2000-245, § 7, [at 2395-98,] Laws of Fla.). . Section 737.4031, Florida Statutes (2002), the predecessor of section 736.04113, provided, in pertinent part, as follows: *590 (1) If the purposes of a trust have been fulfilled or have become illegal or impossible to fulfill or, if because of circumstances not known to or anticipated by the settlor, compliance...
CopyPublished | Florida 3rd District Court of Appeal | 2012 WL 1436129, 2012 Fla. App. LEXIS 6379
...the extent permitted by law, I prohibit a court from modifying the terms of this Trust Agreement under Florida Statutes s. 7374031(2) or any statute of similar import.” Section 737.4031, Florida Statutes (2002), 4 which is currently *1174 found in section 736.04113 of the Florida Statutes, 5 allowed for the judicial modification of a trust under certain circumstances, including “if compliance with the terms of the trust is not in the best interest of the persons having a beneficial interest...
...(a)The court shall exercise its discretion to order a modification of the trust under this subsection in a manner that conforms to the extent possible with the intention of the settlor, taking into account the current circumstances and best interests of the beneficiaries[J [[Image here]] . Section 736.04113 provides: Judicial modification of irrevocable trust when modification is not inconsistent with settlor’s purpose.— (1) Upon the application of a trustee of the trust or any qualified beneficiary, a court at any time may modify...
