What the statute says
Section 736.0406 is short, and it does three things.
If the creation, amendment, or restatement of a trust is procured by fraud, duress, mistake, or undue influence, the trust or any part so procured is void. The remainder of the trust not procured by such means is valid if the remainder is not invalid for other reasons. If the revocation of a trust, or any part thereof, is procured by fraud, duress, mistake, or undue influence, such revocation is void.
Section 736.0406, Florida Statutes.
The middle sentence is the one people underestimate. The statute is severable, so a successful challenge usually does not wipe out the trust. It removes the tainted piece, which is typically the amendment executed in the last months of the settlor’s life, and leaves the earlier plan standing.
No Florida court has construed this section
That is an unusual thing to be able to say about a provision this important, and we say it as our own review rather than as a certainty. We searched the Florida state courts, the Florida federal district and bankruptcy courts, and the Eleventh Circuit for decisions citing section 736.0406. The search returned three documents. One of them, an opinion adopting standard civil jury instructions, does not contain the section number at all and is a false match of the kind that section number searching produces. The other two are real, and neither interprets the statute.
In Flanzer v. Kaplan, 230 So. 3d 960 (Fla. 2d DCA 2017), the court cited the section once to establish that the Trust Code permits an undue influence challenge, and then turned to the real question in the appeal, which was whether the claim was time barred. We are not quoting that sentence, because the electronic text available to us is damaged at exactly that point, printing stray punctuation inside the words. An error introduced by scanning is not the court’s error and should not be reproduced as though it were.
In MacIntyre v. Wedell, 12 So. 3d 273 (Fla. 4th DCA 2009), the section appears only in a footnote, and that footnote is the most useful thing either case gives us.
Paananen was decided in 1991. In 1992, the legislature enacted a statute providing that ‘[a] trust is void if the execution is procured by fraud, duress, mistake, or undue influence,’ see section 737.206, Florida Statutes (1993), and that language presently appears in section 736.0406, Florida Statutes (2008). In 2000, the legislature enacted section 737.2065, Florida Statutes (2000), which provides that ‘[a]n action to contest the validity of all or part of a trust may not be commenced until the trust becomes irrevocable.’
MacIntyre v. Wedell, 12 So. 3d 273 (Fla. 4th DCA 2009), footnote 1.
That footnote is a Florida appellate court confirming on the record that the operative language came forward from former section 737.206. It means the body of Florida undue influence decisions predating the Trust Code did not become irrelevant in 2007, which matters a great deal when the statute itself has no case law of its own.
The 2011 amendment that nobody has litigated
Read the footnote above against the statute quoted at the top of this page and something stands out. The version MacIntyre described in 2009 voided a trust whose execution was procured by improper means. That is one sentence. The section today has three, and covers creation, amendment, restatement, partial invalidity, and revocation. The change came from chapter 2011-183, section 10.
Now consider what MacIntyre actually held. The settlor revoked her own revocable trust during her lifetime. The trustee argued the revocation had been procured by undue influence. The Fourth District held, following Florida National Bank of Palm Beach County v. Genova, that the challenge was unavailable even after the settlor’s death, and affirmed dismissal with prejudice.
Two years later the Legislature wrote: if the revocation of a trust, or any part thereof, is procured by fraud, duress, mistake, or undue influence, such revocation is void.
We found no Florida decision considering whether that sentence displaces MacIntyre’s holding, and we are not going to tell you that it does. What we will say is that the statute now speaks directly to a situation the version MacIntyre applied did not address, that the point appears to be open, and that anyone relying on MacIntyre for the proposition that a revocation cannot be attacked should expect to argue about it. This is our reading of the statutory history, not a holding of any court.
The limitations trap
Most undue influence trust claims that fail in Florida fail on timing rather than on the merits, and the sequence is awkward by design. You cannot contest a revocable trust while the settlor lives, because the trust is not yet irrevocable. Then the settlor dies, and a limitations period starts running against a claim about events you may know nothing about.
Flanzer is useful here notwithstanding that it does not construe section 736.0406. The Second District held that the delayed discovery provision in section 95.031(2)(a) may apply to an undue influence claim contesting a trust, and reversed a dismissal that had treated the claim as time barred. That is a genuine holding on a question that decides cases, and it happens to sit in the only reported decision that cites this statute for anything.