PROBATE CORNER

By: David M. Garten, Esq.

ARTICLE: Admissible Evidence §736.0802(10) Hearing

Pursuant to §736.0802(10), F.S., if a claim or defense based upon breach of trust is made against a trustee in a proceeding, a party must obtain a court order to prohibit the trustee from paying costs or attorney’s fees from trust assets. What type of evidence is admissible at the hearing?

Sec. 736.0802 was substantially amended in 2016. Refer to Chapter 2016-189 (effective July 1, 2016). Prior to 2016, paragraph (10) read in relevant part:

(10)(b) If a claim or defense based upon breach of trust is made against a trustee in a proceeding, a party must obtain a court order to prohibit the trustee from paying costs or attorney’s fees from trust assets. To obtain an order prohibiting payment of costs or attorney’s fees from trust assets, a party must make a reasonable showing by evidence in the record or by proffering evidence that provides a reasonable basis for a court to conclude that there has been a breach of trust. The trustee may proffer evidence to rebut the evidence submitted by a party…. [Emphasis added].

Therefore, based on the pre-2016 statute, the parties could proffer evidence in support of their respective positions. This procedure was changed in 2016. The current statute reads in relevant part:

(e) Upon the motion of any qualified beneficiary who is not barred under s. 736.1008 and whose share of the trust may be affected by the use of trust assets to pay attorney fees or costs as provided in paragraph (b), the court may prohibit the trustee from using trust assets to make such payment and, if such payment has been made from trust assets after service of a notice of intent, the court may enter an order compelling the return of the attorney fees and costs to the trust, with interest at the statutory rate. In connection with any hearing on a motion brought under this paragraph: 1. The court shall deny the motion unless it finds a reasonable basis to conclude that there has been a breach of trust. If the court finds there is a reasonable basis to conclude there has been a breach of trust, the court may still deny the motion if it finds good cause to do so. 2. The movant may show that such reasonable basis exists, and the trustee may rebut any such showing by presenting affidavits, answers to interrogatories, admissions, depositions, and any evidence otherwise admissible under the Florida Evidence Code. [Emphasis added].

As a result of this change, it is now necessary to comply with the Florida Evidence Code when attempting to show that a reasonable basis exists for a breach of trust or to rebut such a showing. In support, refer to the Real Property Probate & Trust Law Section White Paper Regarding a Trustee’s Use of Trust Assets to Pay Attorney’s Fees and Costs in Connection with Claim or Defense of Breach of Trust which reads in relevant part:

The proposed amendments to paragraph (d) also identify the categories of evidence through which a movant may make a showing, or through which a trustee may rebut a showing, that a reasonable basis exists to conclude there has been a breach of trust. The categories of evidence permitted are affidavits, answers to interrogatories, admissions, depositions and any evidence otherwise admissible under the Florida Evidence Code. In other words, the categories of evidence permitted are “summary judgment evidence” (as defined in Florida Rule of Civil Procedure 1.510(c)) and any other category of evidence admissible under the Florida Evidence Code, such as live witness testimony. The existing statute does not provide this level of specificity regarding the categories of evidence the parties may present. [Emphasis added]

The RPPTL White Paper can be found at: https://floridaprobate.lexblogplatform.com/wp-content/uploads/sites/206/2016/06/White-Paper-Duty-of-Loyalty-736-0802-736-0816-736-10071.pdf