PBCBA BAR BULLETINS PBCBA Bulletin - January 2020

PROBATE CORNER Admissible Evidence §736.0802(10) Hearing DAVID M. GARTEN 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? 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]. 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: • As a result of this change, it is now necessary • (10)(b) If a claim or defense based to comply with the Florida Evidence Code upon breach of trust is made against when attempting to show that a reasonable a trustee in a proceeding, a party must obtain a court order to prohibit the basis exists for a breach of trust or to rebut trustee from paying costs or attorney’s such a showing. In support, refer to the Real fees from trust assets. To obtain an Property Probate & Trust Law Section White order prohibiting payment of costs or Paper Regarding a Trustee’s Use of Trust attorney’s fees from trust assets, a party Assets to Pay Attorney’s Fees and Costs in must make a reasonable showing by Connection with Claim or Defense of Breach evidence in the record or by proffering of Trust which reads in relevant part: evidence that provides a reasonable basis for a court to conclude that • The proposed amendments to paragraph (d) also identify the categories of there has been a breach of trust. The evidence through which a movant may trustee may proffer evidence to rebut the evidence submitted by a party…. make a showing, or through which a [Emphasis added]. trustee may rebut a showing, that a reasonable basis exists to conclude Therefore, based on the pre-2016 statute, the there has been a breach of trust. The parties could proffer evidence in support of categories of evidence permitted are their respective positions. This procedure affidavits, answers to interrogatories, was changed in 2016. The current statute admissions, depositions and any reads in relevant part: evidence otherwise admissible under the Florida Evidence Code. In other • (e) Upon the motion of any qualified words, the categories of evidence beneficiary who is not barred under s. permitted are “summary judgment 736.1008 and whose share of the trust evidence” (as defined in Florida Rule of may be affected by the use of trust Civil Procedure 1.510(c)) and any other assets to pay attorney fees or costs as category of evidence admissible under provided in paragraph (b), the court the Florida Evidence Code, such as live may prohibit the trustee from using witness testimony. The existing statute trust assets to make such payment and, does not provide this level of specificity if such payment has been made from regarding the categories of evidence the trust assets after service of a notice of parties may present. [Emphasis added] intent, the court may enter an order • compelling the return of the attorney The RPPTL White Paper can be found at: fees and costs to the trust, with interest https://floridaprobate.lexblogplatform.com/wp- at the statutory rate. In connection with content/uploads/sites/206/2016/06/White-Paper- any hearing on a motion brought under Duty-of-Loyalty-736-0802-736-0816-736-10071.pdf 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 PBCBA BAR BULLETIN 19 Committee Event Spotlight Speaking at the PBC Bar’s 22nd Annual Elder law seminar was Michael Lampert, who presented on the Intersection of Tax Law and Public Benefits. The seminar, co- chaired by Tequisha Myles and Heather Samuels, also included discussion on Medicaid applications; Navigating DCF’s Internal Appeals Process; Special Needs Trusts; Resolving Financial Exploitation; and Real Estate. If you missed it, the audio from the seminar will be available after November 22. Log onto the Bar’s site for ordering details available at cle.palmbeach.org.

PBCBA BAR BULLETINS PBCBA Bulletin - January 2020 | Page 19