## Facts

- Ralph Falkenthal created a revocable trust in 2006 that was validly executed under Illinois law and, upon his death, distributed assets to his wife or, if she predeceased him, equally to his three children (Jill Kelly, Jeff Falkenthal, and Judy Mors-Kotrba).
- After his wife died, Ralph moved to Florida, met Donna Lindenau, and bought a Bradenton, Florida residence where he lived with her.
- While residing in Florida, Ralph executed two amendments to the trust (2012 and 2014) that were drafted by his Illinois attorney and asserted to comply with Illinois drafting requirements.
- The amendments were signed in the presence of two witnesses, but only one witness signed each amendment.
- The second amendment (2014) specifically devised a Sarasota residence to Jeff and the Bradenton residence to Lindenau, while leaving the residue disposition unchanged.
- After Ralph died in 2015 and the trust became irrevocable, Judy (as successor trustee) sought a declaratory judgment that the amendments were invalid for lack of execution formalities; Lindenau counterclaimed to reform the trust to reflect Ralph’s intent and to obtain the Bradenton residence.
- Following a bench trial, the circuit court denied the declaratory judgment request, granted reformation, and ordered the trustee to transfer the Bradenton residence to Lindenau.

## Issues

1. Whether trust amendments executed in Florida that make testamentary dispositions are valid when only one attesting witness signs, despite two witnesses being present.
2. Whether a court may reform an invalidly executed trust amendment to carry out the settlor’s intent.

## Decision

- The appellate court reversed the final judgment.
- The court held the amendments were not validly executed under Florida law because they lacked two subscribing witness signatures required for testamentary instruments.
- The court held reformation is unavailable to cure a failure to comply with execution formalities; reformation presupposes a validly executed instrument.
- Because the amendments were invalid, the trial court lacked a basis to reform them and order transfer of the Bradenton residence to Lindenau.

## Legal Principles

- Florida execution formalities govern a revocable trust amendment executed in Florida that disposes of property at death; such provisions are treated as the functional equivalent of a will for execution purposes.
- Florida requires execution in the presence of two attesting witnesses who also sign; an amendment with only one witness signature is invalid.
- Trust reformation under Florida law permits conforming a valid trust’s terms to the settlor’s intent upon clear and convincing proof of mistake, but it does not authorize a court to validate an instrument that was never properly executed.
- Equitable remedies cannot be used to bypass statutory execution requirements for testamentary dispositions.

## Conclusion

The court invalidated trust amendments executed in Florida without two subscribing witness signatures and held that reformation cannot be used to enforce an improperly executed amendment, requiring distribution under the unamended, valid trust terms.


Kelly v. Lindenau, 223 So. 3d 1074 (Fla. 2d DCA 2017)