On June 21, 2011, Florida Governor Rick Scott signed C.S./H.B. 325 into law. The law confirms that there is no fiduciary exception to the attorney-client privilege and that only the person or entity acting as a fiduciary is considered a client of the lawyer. The law provides that a client acts as a fiduciary when serving as a personal representative, a trustee, an administrator ad litem, a curator, a guardian or guardian ad litem, a conservator, or an attorney-in-fact. Accordingly, the law requires a personal representative in a probate proceeding to include in the Notice of Administration a statement that the fiduciary lawyer-client privilege applies with respect to the personal representative and any attorney employed by the personal representative. Additionally, the law requires that the trustee include in the initial notice to qualified beneficiaries a statement that the fiduciary lawyer-client privilege applies with respect to the trustee and any attorney employed by the trustee.
Effective October 1, 2011, a surviving spouse’s share of a decedent’s intestate estate will be increased from the first $60,000 of the intestate estate plus one-half of the remaining estate to the entire intestate estate when all of the decedent's descendants are also descendants of the surviving spouse and the surviving spouse does not have any other descendants. If there are one or more surviving descendants of the decedent who are not lineal descendants of the surviving spouse, the intestate share for the surviving spouse is one-half of the decedent’s intestate estate. Similarly, if there are one or more surviving descendants of the decedent, all of whom are also descendants of the surviving spouse, and the surviving spouse also has one or more descendants who are not descendants of the decedent, the intestate share for the surviving spouse is one-half of the decedent’s intestate estate.
Effective July 1, 2011, a court may reform a will, even if unambiguous, to conform the terms of the will to the testator’s intent if it is proven 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. In determining the testator’s intent, the court may consider extrinsic evidence even if it contradicts the plain meaning of the will. Additionally, a court may modify a will, with or without retroactive effect, to achieve the testator’s tax objectives provided that such modification is not contrary to the testator’s probable intent. The law provides that in proceedings to reform a will for mistake or to modify a will to achieve the testator’s tax objective, a court is authorized to award taxable costs, including attorney’s fees and guardian ad litem fees.
Further, the law authorizes challenges to the revocation of a will or trust on the grounds of fraud, duress, mistake or undue influence after the death of the testator or settlor. Finally, in judicial proceedings regarding trusts, the law provides that Florida Rule of Civil Procedure 1.525 applies for purposes of determining when and under what circumstances a trustee or beneficiary of a trust or attorney must file a motion for attorney's fees and costs, with specifically listed exceptions.
Except as otherwise indicated above, these provisions are effective as of June 21, 2011, and apply to all proceedings pending before such date and all cases commenced on or after the effective date