On May 17, 2000, Edgar Sonder created a trust with himself as trustee, and later amended the trust to name Cecelia Reid, his nurse, as successor trustee. The trust provided: (1) pecuniary gifts totaling $31,000 to 10 charities; (2) a $125,000 endowment gift to the Hebrew Union College Jewish Institute of Religion after the payment of the pecuniary gifts; (3) after the pecuniary gifts and the endowment gift, a number of specific gifts to enumerated individuals including a $25,000 gift and a gift of an apartment to Cecelia.
Edgar died in 2005. Finding the trust assets insufficient to pay all of the gifts provided for in the trust, Cecelia (who was both personal representative and trustee) moved the court to abate the pecuniary gifts proportionately, and claimed that the apartment was a devise not subject to abatement. The motion to abate was denied and affirmed by the Florida Court of Appeals.
Cecilia then petitioned the court to reform the trust under the Florida Uniform Trust Code for a unilateral drafting mistake, claiming that the trust instrument did not evidence the settlor’s intent which was to give his apartment to Cecilia not subject to abatement. The probate court denied the petition finding that Cecelia had not meet her burden of proving by clear and convincing evidence that the trust as written did not reflect the settlor’s intent. Cecilia appealed the probate court’s denial of reformation and granting of appellate attorneys’ fees in the prior appeal to Hebrew Union College.
On appeal, the Florida Court of Appeals affirmed the probate court on the grounds that: (1) even though the scrivener of the trust testified that Edgar had never instructed him to create priority between the gifts and that the inclusion of the terms “after giving effect to” in paragraph 2 and 3 were his doing, because Edgar had read the trust and approved the language, he had adopted its terms rendering amendment improper; (2) Edgar ratified the language in two subsequent amendments making the gift of the apartment subordinate to the other gifts; (3) nothing in the record explained why Edgar, an articulate and precise businessman, would have approved the plain and simple trust terms if they did not reflect his intent; and (4) Cecilia offered no testimony establishing that Edgar would have preferred the gift to Cecilia over the endowment gift in the event both could not be satisfied.
The court dismissed the portion of the appeal regarding the award of appellate attorneys’ fees for lack of jurisdiction. One judge issued a dissenting opinion.