The rule everything else in the Part depends on
Except as provided in s. 736.0105(2):
(1) The intent of the settlor as expressed in the terms of the trust controls the legal effect of the dispositions made in the trust.
(2) The rules of construction as expressed in this part shall apply unless a contrary intent is indicated by the terms of the trust.
Section 736.1101, Florida Statutes. Enacted in 2006 and never amended.
Part XI is a set of default answers about who is inside a class gift, how a class divides, what happens when a beneficiary dies first, what divorce does, and what happens to a gift of shares. This section explains their status. They are defaults, and the document beats them.
The phrase to hold on to is as expressed in the terms of the trust. It appears in subsection (1) and again, in different words, in subsection (2). Both times it does the same work. Intent counts, and the place you find it is the document.
The section is subordinated before it starts
Those four opening words, except as provided in s. 736.0105(2), put something ahead of the settlor’s intent.
Section 736.0105(2) is the list of provisions a trust cannot switch off, including the duty to account, the requirements for creating a trust, the court’s power to modify or terminate, the effect of a spendthrift clause, and a couple of dozen others. Those are mandatory whatever the document says.
So the hierarchy puts the non-overridable list first, then the settlor’s expressed intent, then the default rules of this Part. A trust that tries to reach the first tier does not get there by expressing an intent very clearly.
Intent expressed in the terms, and not otherwise
The most interesting thing about this section is a decision that appears to contradict it and does not.
In 2008 beneficiaries argued that a court construing section 736.1107, on gifts of securities, should consider what the settlor had intended. The Fourth District refused.
The statute, however, does not require or allow for an inquiry into the intent of the testator. It creates a clear rule of ademption where the trust does not hold the securities at the date of death.
Brundage v. Bank of America, 996 So. 2d 877 (Fla. 4th DCA 2008).
Set beside subsection (1), that looks like a flat contradiction. A statute in this Part says intent controls; a court says the statute does not allow an inquiry into intent.
The reconciliation is in subsection (2), and it is the whole reason to read this section carefully. The rules of this Part yield to a contrary intent indicated by the terms of the trust. The beneficiaries in that case were not pointing at anything in the trust. They were asking the court to consider intent from outside the document, and this section does not authorise that.
So both statements are true. Intent governs, and the terms are where intent is found. A trust that had said the beneficiary was to receive the value of the holding, or shares acquired later, would have been given effect. A settlor who meant that but did not write it gets the default.
Where this stops and reformation begins
None of this means a mistaken document is beyond help. It means construction is not the tool.
Section 736.0415 allows a court to reform even an unambiguous trust to conform to the settlor’s intent, on clear and convincing evidence of both the intent and the mistake. That remedy looks outside the document by design. Construction under this Part asks what do these words mean. Reformation asks are these the right words.
Confusing the two is a common and expensive error. A party arguing construction cannot import evidence of intent from outside the instrument; a party seeking reformation must plead and prove it to a high standard, and there are things reformation cannot reach at all, including a devise of homestead that violates the constitutional limits.
No Florida court has cited this section
A search returns no citing documents in any Florida court, the Florida federal courts or the Eleventh Circuit, at any precedential status.
That is unremarkable for a provision of this kind. Courts construing a trust say that the settlor’s intent is the polestar and cite decisions saying so, rather than citing the statute that says the same thing. The principle is applied constantly under other names.
We report the nil result as our own review rather than as a certainty, and we would not read it as suggesting the section is unimportant. It sets the status of every other rule in the Part.