## Facts

- Virginia F. Davis created an irrevocable trust (Mar. 4, 1986) providing for distribution of remaining principal and undistributed income to her two sons, Stephen and Scott, in three installments: one-third shortly after the relevant death, one-third five years later, and the final one-third five years after that.
- The instrument stated that if a child died before receiving “any or all” of that child’s share, the share would be distributed to the “then living issue” of the deceased child, per stirpes.
- The instrument did not address the contingency that a son might die without issue before later installment dates.
- After Virginia’s death (Nov. 2, 2000), the trustee made the first one-third distribution to each son.
- Scott later died without issue before the second and third installment dates and left his estate to charitable beneficiaries.
- Stephen and his children asserted that the trust should either be reformed to add a “die without issue” gift-over to the surviving son or, if not reformed, construed so Scott’s remaining installments did not pass to his estate.
- The drafting attorney and the settlor’s financial advisor provided sworn statements that the settlor intended the surviving son to take if the other son died without issue and that omission of such a clause was a drafting mistake.
- The trustee sought judicial instructions; the charitable beneficiaries obtained summary judgment in the trial court, which held reformation unavailable and treated Scott’s remaining interest as vested and passing to his estate.

## Issues

1. Whether an irrevocable trust may be equitably reformed based on an alleged drafting (scrivener’s) error to reflect the settlor’s intent regarding a beneficiary who dies without issue.
2. Whether summary judgment was proper where affidavits and deposition testimony created factual disputes about the settlor’s intent and the existence of a drafting mistake.
3. If reformation is denied, whether the deceased son’s interest in later installment distributions was vested and devisable to his estate or contingent and subject to failure, potentially resulting in a resulting trust.

## Decision

- The appellate court reversed the summary judgment and remanded.
- It held that reformation is not categorically barred merely because a trust is irrevocable; equitable reformation may be available upon the required proof of drafting mistake and intent.
- It held that the record evidence (including the attorney’s and advisor’s sworn statements) created genuine issues of material fact on intent and drafting error, making summary judgment improper.
- It concluded the trial court should have considered the deposition materials served in compliance with procedural rules.
- It provided guidance that, absent reformation, Scott’s interest in the later installments could be construed as contingent (tied to survival to distribution dates or leaving “then living issue”), and if the contingency failed, the undisposed property could pass by resulting trust to the settlor’s estate rather than to Scott’s estate.

## Legal Principles

- Courts sitting in equity may reform written instruments, including irrevocable trusts, when a drafting mistake causes the writing to fail to reflect the parties’ (or settlor’s) intent, upon the requisite level of proof.
- Interpretation of a written trust instrument is a question of law reviewed de novo on appeal.
- Installment distribution provisions and “then living issue” language may indicate contingent, not vested, interests in future distributions; failure of the stated contingency can cause the interest to lapse and may leave the property to pass under a resulting trust to the settlor’s estate.

## Conclusion

The court reversed a summary judgment that treated a deceased beneficiary’s remaining installment interests as vested and that rejected reformation of an irrevocable trust as unavailable, holding that factual disputes about scrivener’s error and settlor intent required further proceedings and that, if reformation is denied, the remaining installments may be contingent and subject to a resulting trust disposition.


Davis v. Rex, 876 So. 2d 609 (Fla. Dist. Ct. App. 4th Dist. 2004)