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Unilateral Drafting Mistake: Impact of Settlor’s Intent Over Attorney’s Mistake


Florida Probate litigation Attorney Thomas Upchurch provides his opinion regarding the first judicial interpretation of section 736.0415, Florida Statutes (2011) in Reid v. In re Estate of Sonder, 2011 Fla. App. LEXIS 4035 (March 23, 2011). This is a brief overview of the 2011 appeal. There were two prior appeals in which the information has been excluded in this blog post. You may view the full details of this case at: As of the date of this blog, the statute stands in 2013.


Edgar Sonder created a trust with himself as trustee on May 17, 2000. He 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 and the trust assets were insufficient to pay all of the gifts provided in the trust.

Originally, Cecelia petitioned the court to reform the trust under the Florida Uniform Trust Code for a unilateral drafting mistake. Cecelia moved the court to abate the pecuniary gifts proportionately and requested that the court determine the apartment as a devise not subject to abatement. The drafting attorney testified that he made a mistake in preparation of the trust by adding language setting forth priority between gifts.

Probate court denied Cecelia’s petition based on lack of clear and convincing evidence that the trust as written did not reflect settlor’s intent. Cecelia appealed the probate’s denial of reformation. Florida Court of Appeals denied Cecelia’s motion for abatement and affirmed probate court’s decision.


Did the trust as written reflect the settlor’s intent? Yes. The language in the trust was easy to understand, and Edgar read and approved the language. Edgar made two additional amendments making the gift of the apartment subordinate to other gifts each time. The actions of Edgar reflected his intent to make the gift of the apartment subordinate to the other gifts. Therefore, the settlor’s intent is clear, making the adoption of a reformation improper.

Does an attorney’s admittance of a mistake affect the settlor’s intent?

It depends on whether the mistake affects the intent of the settlor. The judges that upheld the probate court’s decision took the position that what matters most is the settlor’s intent, not whether an attorney made a mistake. The attorney’s mistake did not impact the settlor’s intent based on the settlor’s actions. As a result, the probate court denied the petition due to Cecelia failing to prove by clear and convincing evidence that the trust as written was not the settlor’s intent.


Reasons settlor’s actions reflect his intent:

1. Sonder was a business man who read the trust and at no time during the signing of the trust or during the signing of the two amendments did he question the attorney about the wording making the gift of the apartment subordinate to the other gifts.

2. The language in the trust was cut and dry and there was no evidence that settlor would not have understood the terms as written, thereby reflecting the settlor’s intent.

3. Cecelia did not provide testimony setting forth that Edgar preferred the gift to her over the endowment gift in the event both could not be satisfied.

Impact of attorney admitting his mistake:

Judge Wells provided a sharp dissent to the court’s decision and took the position that if the attorney admitted the mistake, then reformation should be proper.


While it may appear that this decision could be a set back on the newly formed section 736.0415, Florida Statutes for trusts, and section 732.615, Florida Statutes for wills, the decision should not impact future decisions simply because under the circumstances, the attorney’s mistake did not outweigh the settlor’s intentions. Also, with Judge Wells’ sharp dissent it is on the record that an attorney admitting a mistake in the preparation of a trust (or will if applicable) should have an impact on the court’s decision to allow reformation of a trust (or will if applicable).

The statute was created to allow reformations or modifications and is succinctly summarized as “Reformation is a civilized society’s recognition that humans, including estate planning attorneys, can make mistakes. If a mistake occurs in the drafting of a trust, the court, wearing its equity robe, has a duty to correct the mistake.” See Amicus Curiae Brief of the Real Property, Probate & Trust Law Section of the Florida Bar, Reid v. Temple Judea, 994 So. 2d 1146 (Fla. 3d DC 2008).

If you need an experienced Florida Probate litigation lawyer, contact Attorney Thomas Upchurch at (386) 272-7445 or you may contact Upchurch Law& Upchurc using the contact page.


This blog post only reflects my personal views in my individual capacity. It does not necessarily represent the views of my law firm or my past clients, and is not sponsored or endorsed by them. The case-specific information contained in this blog post is based solely on opinion, and is provided only for educational purposes and is not intended to provide specific legal advice. No representation is made about the accuracy of the information posted on this blog site. Blog topics may or may not be updated and entries may be out-of-date at the time you view them.

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