## Facts

- A settlor created and funded an irrevocable trust (initially $25 million) to support a shopping-mall development venture and benefit his children as beneficiaries.
- Disagreements arose among the settlor, a person granted power to remove/appoint trustees, and the trustee over the project’s scope; the settlor stopped funding, leaving related entities with debt and liens.
- The settlor and beneficiaries first sued in civil court to modify the trust by removing the trustee and eliminating the third party’s trustee-control powers; that action was dismissed after the trustee and third party obtained dismissal of the initial complaint.
- The same day, the settlor and beneficiaries refiled in probate court seeking the same trust modification; after a successor trustee was appointed, the pleadings were amended to add him and seek his removal.
- The probate court entered a final order modifying the trust based on the consent of the settlor and all beneficiaries.
- In the earlier civil case, the court denied the former trustee’s motion for attorney’s fees.
- The former trustee and the successor trustee appealed both the probate modification order and the denial of attorney’s fees.

## Issues

1. Whether the successor trustee had standing to appeal the probate order modifying the trust.
2. Whether the holder of trustee-removal/appointment power was an indispensable party whose absence required reversal of the modification order.
3. Whether an irrevocable trust may be modified based solely on unanimous consent of the settlor and all beneficiaries, without statutory findings required for judicial modification under the Florida Trust Code.
4. Whether denying the former trustee attorney’s fees was error where the trust conditioned denial on findings of bad faith or reckless indifference.

## Decision

- The successor trustee had standing because he had a sufficient stake in the trust’s administration and terms and could seek related declaratory or modification relief.
- The holder of trustee-removal/appointment power was not an indispensable party because the court could fully adjudicate the rights and equities among the settlor, beneficiaries, and trustees without him.
- The trust modification order was affirmed because Florida common law permits modification of an irrevocable trust when the settlor and all beneficiaries consent, and the Trust Code preserves (and adds to) that common-law authority.
- The denial of the former trustee’s attorney’s fees was reversed because the trial court did not make the trust-required finding of bad faith or reckless indifference to justify withholding fees.

## Legal Principles

- A trustee has standing to appeal a trust-modification order when the trustee has a concrete interest in the trust’s administration and governing terms.
- A party is indispensable only if complete and efficient adjudication of the parties’ rights cannot occur in that party’s absence.
- Under Florida common law, an irrevocable trust may be modified by unanimous consent of the settlor and all beneficiaries.
- The Florida Trust Code supplements, and does not displace, common-law and equitable trust principles; statutory modification provisions do not eliminate common-law modification by unanimous consent.
- Where a trust instrument conditions denial of trustee attorney’s fees on specified misconduct, a court must make the required findings before denying fees.

## Conclusion

The appellate court upheld modification of an irrevocable trust based on unanimous consent of the settlor and all beneficiaries without requiring statutory modification findings, rejected an indispensable-party challenge, and ordered reconsideration of the former trustee’s attorney’s fees because the denial lacked the findings required by the trust.


Demircan v. Mikhaylov, 306 So. 3d 142 (Fla. 3d DCA 2020)