Home > Research Legal Advice > Trusts > Trust amendments to joint trust after one trustmaker passes?
Asked about 1 year ago - Clearwater, FL
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Scenario:
Joint trust made (Family/Marital Trust)
it states:
"We shall have the absolute right to amend or revoke our
trust, in whole or in part, at any time. Any amendment or
revocation must be in writing, signed by both of us, and
delivered to our Trustee.
After the death of one of us, this agreement shall not be
subject to amendment or revocation."
One trustmaker passes and the other writes "amendments" to revoke sections and eliminate most of the beneficiaries shares of the trust against what the intentions of the other trustmaker. The trust also states that anyone who contests the original trust (we contest the amendments not the trust) are excluded immediately and deemed predeceased. Are the amendments valid then?
There is case-law precedent on this issue in Florida, and any attorney would really need to read the entire document to provide you sound legal advice or opinion. However, on the limited facts that you present, it would seem that any amendment must be signed by both grantors (trustmakers, as you called it). If one grantor is dead, obviously both of them cannot sign an amendment or revocation.
As to your second question regarding contesting the trust, Fla. Stat. 736.1108, Penalty Clause for contest(1) provides that "a provision in a trust instrument purporting to penalize any interested person for contesting the trust instrument or instituting other proceedings relating to a trust estate or trust assets is unenforceable." That being said, this provision only applies to trusts created on or after October 1, 1993. One would need to know when the trust was created.
If you wish to contest a trust, you really should retain competent legal counsel, who specializes in trust litigation. Again, an attorney would really need to see the entire document to provide you with a complete answer. You can look here or on www.martindale.com for an attorney in your area.
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