Florida's Will Reformation Statute Turns Estate Planning Upside Down

Florida's Will Reformation Statute Section 732.615
In 2011, the Florida Legislature revised its Probate Code to allow any interested person to reform a deceased person's Will even when the terms of the Will are unambiguous.  In doing so, hundreds of years of Estate Planning Precedent has been turned upside down.  The new Statute cuts against Florida's strict requirements for creating a valid Will and opens the door for abuse by disgruntled persons either left out of the Will or who want a larger portion of the Estate's assets.  The exact language of the Statute is as follows: 
732.615 Reformation to correct mistakes.—Upon application of any interested person, the court may reform the terms of a will, even if unambiguous, to conform the terms to the testator’s intent if it is proved by clear and convincing evidence that both the accomplishment of the testator’s intent and the terms of the will were affected by a mistake of fact or law, whether in expression or inducement. In determining the testator’s original intent, the court may consider evidence relevant to the testator’s intent even though the evidence contradicts an apparent plain meaning of the will.
One affect of this Will Reformation Statute has been to cause some to question whether executing a Will is the best way to leave property to their loved ones. 

As a not-so-hypothetical example of the Statute's absurdity, suppose that as a husband and father I want to leave all of my property to my wife and children when I die.  Not so hypothetical to most of my clients.  Under the current Florida Statute, if I die intestate (without a Will) the Florida Probate Code requires distribution of my property to my wife and children in various proportions. 

Now assume that instead of dying intestate, I die leaving a validly executed Will distributing my property to my wife and children in the same proportions as if I had died intestate.  Under the new Will Reformation Statute, "any interested person" can now disrupt the probate process by filing suit for Reformation of my Will seeking a portion of my estate.  That same person can now file the same lawsuit for any estate in Florida as long as the person can show he or she is an "interested person." 

Success on the merits of such a lawsuit could depend on oral testimony of the person drafting the Will (i.e. "I wrote that down wrong, what the Testator really meant to say was..."), a letter written by the Testator in the heat of passion before or after execution of a Will, or he said/she said discussions from any number of interested parties.  I know that each of these three examples are currently being used in Reformation Lawsuits currently pending in Florida courts. 

To make matters worse, suppose a Will was probated thirty years ago with the provision that the corpus of a trust set up by the Will was only to be distributed upon the death of the trust beneficiary.  The trust beneficiary then dies after the Reformation Statute has taken effect.  According to at least one interpretation of the Reformation Statute, the distribution of the Trust corpus gives rise to a Will Reformation lawsuit over a Will probated thirty years ago.

On another note, there is a jaded part of me that wonders whether counseling my clients to execute a Will can open me up to a malpractice suit when the facts are as stated in my not-so-hypothetical hypothetical.  The statute turns Wills and Trusts law upside down.
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