Under certain circumstances, a trust may be challenged on undue influence grounds, much like a will. Pursuant to Section 736.0406 of the Florida Trust Code, a trust is void if the creation or restatement of the trust is procured by undue influence. When analyzing a challenge to a trust based on undue influence, Florida Courts apply the same analysis as set forth in In re: Estate of Carpenter, 253 So. 2d 697 (Fla 1971), which governs undue influence of a will. The elements of a claim for undue influence require that a substantial beneficiary of the trust maintained a confidential relationship with the grantor at the time of creation of the trust, and was active in the procurement of the trust.
Active procurement can be demonstrated by any combination of the following factors: (1) the presence of the undue influencer at the signing of the Trust; (2) the presence of the undue influencer on occasions when the grantor expressed a desire to make a Trust; (3) recommendation by the undue influencer of an attorney to draw the Trust; (4) knowledge of the contents of the Trust by the undue influencer prior to the signing of the Trust; (5) giving of instructions on preparation of the Trust by the undue influencer to the attorney drawing the Trust; (6) securing the witnesses to the Trust by the undue influencer; and (7) safekeeping of the Trust by the undue influencer after it was executed. Florida Courts may consider additional factors as well in determining whether a trust was actively procured.
Florida case law provides that while the creation of a trust may be challenged on undue influence grounds, the revocation of a trust by the grantor during his or her lifetime cannot be challenged on undue influence grounds. This is because the grantor, who is often the sole beneficiary of the trust during his or her lifetime, cannot be deprived of his or her right to revoke the trust in the absence of a judicial determination or medical certification of physical or mental incapacity, or other qualification of incapacity as defined by the terms of the trust. See MacIntyre v. Wedell, 12 So. 3d 373 (Fla. 4th DCA 2009).