Qualified Renunciation

We often receive calls regarding challenging a will or trust document.  In Florida, before you can file a will or trust challenge, the contestant must renounce any benefit he or she receives under the document they are attempting to challenge.

Reunification is an equitable doctrine in Florida.  In 2013 the 2nd DCA heard the case Fintak v. Fintak, 120 So.3d 177.  Generally, under English law as interpreted by American courts  and individual is estopped from contesting the validity of a document that they received and retained a gift from.  The Florida Supreme Court gave 3 reasons for this rule in Barnett Nat’l Bank of Jacksonville v. Murrey, 49 So.2d 535 (Fla. 1950):

  1. to protect a fiduciary in the event the contested document is held invalid;
  2. to demonstrate sincerity of the contestant; and
  3. to have the property available for disposition at the conclusion of the contest.

In Fintak, the facts showed that the husband would either own 1/2 title of the property or the entire property.  Because he would own the 1/4th either way,  the Florida Supreme Court said that “This is a case where the donee would not receive under the will a benefit to which he would not be entitled except for the will, in which event no election is required. A reunification in such a case would be more a form than a substance, for even if he lost in his suit to establish a resulting trust on the theory that the property is not part of the wife’s estate and consequently not subject to devise, he would still be entitled to take under the Will.” Fintak at 184 citing Mendary at 890.

The Court also stated “However, as we held in the context of the renunciation rule, an individual cannot be estopped from challenging an instrument by accepting that which he or she is legally entitled to receive, regardless of whether the instrument is sustained or overthrown.”  Fintak at 184 (citing Head v. Lane, 495 So.2d 821 (Fla. 4th DCA 1986) and In re Will of Smith, 158 N.C. App. 722, 582 S.E. 2d 356 (N.C. Ct. App. 2003)).

Thus, the court held that “the settlor of a self-settled trust funded with his own assets is not required to renounce any benefits received under the trust before he can challenge its validity.”  Fintak, 120 So. 3d at 179.

Florida law will not allow a person to benefit from a trust or will while simultaneously challenging the validity of that trust or will.  The Fintak case shows a small exception to this rule.  Generally, if a person wishes to challenge the validity of a trust or will, then that person must generally renounce any benefit received from that trust or Will before a challenge is raised.

In the event that a reunification is necessary, there are often ways of doing discovery without first doing the reunification.  If you suspect there is a problem with a will or trust and would like to talk with a Florida Probate Litigation Lawyer or Florida Trust litigation Attorney, contact the Law Office of David M. Goldman to discuss your case.



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