MEMO TO:
Alexsei Demo US
RESEARCH ID:
#4000854785993f
JURISDICTION:
State
STATE/FORUM:
Florida, United States of America
ANSWERED ON:
September 12, 2022
CLASSIFICATION:
Estates and trusts

Issue:

In what circumstances will a Florida court order the removal of a trust's trustee due to breach of fiduciary duties?

Conclusion:

Fla. Stat. § 736.0706 (2022) sets out the circumstances in which a settlor, cotrustee, or beneficiary may request that the court remove a trustee or in which a trustee may be removed by the court on the court's own initiative.

The court may remove a trustee if the trustee has committed a serious breach of trust. (Fla. Stat. § 736.0706 (2022))

A violation by a trustee of a duty the trustee owes to a beneficiary is a breach of trust. (Fla. Stat. § 736.1001 (2022))

The breach of trust must occur during the time trustee has acted as trustee. (Estate of Lee v. Gere, 2016 Fla. Cir. LEXIS 37686 (Fla. Cir. Ct. October 3, 2016))

To remedy a breach of trust that has occurred or may occur, the court may remove the trustee as provided in Fla. Stat. § 736.0706. (Fla. Stat. § 736.1001 (2022))

The terms of a trust can not eliminate or curtail the court's power and responsibility under the Trust Code to remove a trustee when necessary in the interests of justice to protect the interests of the beneficiaries. (Wallace v. Comprehensive Pers. Care Servs., Inc., 306 So.3d 207 (Fla. App. 2020))

No authorities were identified that explained what makes a breach of trust a "serious breach of trust" under Fla. Stat. § 736.0706; however, the following case involving the removal of a trustee may be instructive.

In McCormick v. Cox, 118 So.3d 980 (Fla. App. 2013), the Florida District Court of Appeal for the Third District found that the trustee breached his fiduciary duty to the beneficiaries of the trust by undervaluing trust property for estate tax purposes and failing to amend the estate tax return to report the ultimate sale value. The trustee and his law firm also breached their duties to post a bond and to render annual accountings to the beneficiaries as specified by the trust agreement and Florida law. The trustee's payment to himself of a seven-figure fee from trust monies without prior disclosures of alleged entitlement and amount to the beneficiaries or the court also constituted a breach of duty. Based on the record, the Court found that the trial court did not abuse its discretion in removing the trustee and granting the beneficiaries' preemptive request to preclude the trustee's sons from serving as a successor trustee.

In Draper v. Stouffer, 2011 Fla. Cir. LEXIS 1328 (Fla. Cir. Ct. January 26, 2011), the Circuit Court of the Twentieth Judicial Circuit of Florida found that the trustee violated her fiduciary duty as trustee because she refused and failed to administer the trust in good faith, in accordance with its terms and purposes, and in the interest of the beneficiaries; engaged in transactions with trust property for her own personal benefit; failed to act impartially in the administration of trust property; refused to administer the trust as a prudent person and in consideration of its terms and distribution requirements; incurred unreasonable expenses in relation to trust property, improperly delegated trust duties, then failed to supervise; failed to protect trust property, refused to keep clear, distinct, and accurate records, and keep the trust property separate from her own property; refused to account; failed to hold, manage or invest the trust asset as required by statute; and, distributed trust principal assets without authority and without proper documentation to the detriment of the trust itself. Based on these violations, the Court removed the trustee.

Law:

Fla. Stat. § 736.0706 (2022) sets out the circumstances in which a settlor, cotrustee, or beneficiary may request that the court remove a trustee or in which a trustee may be removed by the court on the court's own initiative. Subsection (2)(a) provides that a trustee may be removed if the trustee has committed a serious breach of trust. Under subsection (2)(c), a trustee may be removed if the court determines that the removal of the trustee best serves the interests of the beneficiaries due to the unfitness, unwillingness, or persistent failure of the trustee to administer the trust effectively: 

§ 736.0706. Removal of trustee

(1) The settlor, a cotrustee, or a beneficiary may request the court to remove a trustee, or a trustee may be removed by the court on the court's own initiative.

(2) The court may remove a trustee if:

(a) The trustee has committed a serious breach of trust;

(b) The lack of cooperation among cotrustees substantially impairs the administration of the trust;

(c) Due to the unfitness, unwillingness, or persistent failure of the trustee to administer the trust effectively, the court determines that removal of the trustee best serves the interests of the beneficiaries; or

(d) There has been a substantial change of circumstances or removal is requested by all of the qualified beneficiaries, the court finds that removal of the trustee best serves the interests of all of the beneficiaries and is not inconsistent with a material purpose of the trust, and a suitable cotrustee or successor trustee is available.

(3) Pending a final decision on a request to remove a trustee, or in lieu of or in addition to removing a trustee, the court may order such appropriate relief under s. 736.1001(2) as may be necessary to protect the trust property or the interests of the beneficiaries.

Subsection (1) of Fla. Stat. § 736.1001 (2022) provides that a violation by a trustee of a duty the trustee owes to a beneficiary is a breach of trust. Subsection (2) sets out the remedies for a breach of trust, including removal of the trustee pursuant to Fla. Stat. § 736.0706:

§ 736.1001. Remedies for breach of trust

(1) A violation by a trustee of a duty the trustee owes to a beneficiary is a breach of trust.

(2) To remedy a breach of trust that has occurred or may occur, the court may:

(a) Compel the trustee to perform the trustee's duties;

(b) Enjoin the trustee from committing a breach of trust;

(c) Compel the trustee to redress a breach of trust by paying money or restoring property or by other means;

(d) Order a trustee to account;

(e) Appoint a special fiduciary to take possession of the trust property and administer the trust;

(f) Suspend the trustee;

(g) Remove the trustee as provided in s. 736.0706;

(h) Reduce or deny compensation to the trustee;

(i) Subject to s. 736.1016, void an act of the trustee, impose a lien or a constructive trust on trust property, or trace trust property wrongfully disposed of and recover the property or its proceeds; or

(j) Order any other appropriate relief.

(3) As an illustration of the remedies available to the court and without limiting the court's discretion as provided in subsection (2), if a breach of trust results in the favoring of any beneficiary to the detriment of any other beneficiary or consists of an abuse of the trustee's discretion:

(a) To the extent the breach of trust has resulted in no distribution to a beneficiary or a distribution that is too small, the court may require the trustee to pay from the trust to the beneficiary an amount the court determines will restore the beneficiary, in whole or in part, to his or her appropriate position.

(b) To the extent the breach of trust has resulted in a distribution to a beneficiary that is too large, the court may restore the beneficiaries, the trust, or both, in whole or in part, to their appropriate positions by requiring the trustee to withhold an amount from one or more future distributions to the beneficiary who received the distribution that was too large or by requiring that beneficiary to return some or all of the distribution to the trust.

In Wallace v. Comprehensive Pers. Care Servs., Inc., 306 So.3d 207 (Fla. App. 2020), the Florida District Court of Appeal for the Third District explained that the terms of a trust generally prevail over the provisions of the Trust Code except as may be necessary in the interests of justice. However, the terms of a trust will not prevail over the duty of the trustee to act in good faith, in accordance with the terms and purposes of the trust, and the interests of the beneficiaries. Nor can the terms of the trust eliminate or curtail the court's power and responsibility under the Trust Code to remove a trustee when necessary in the interests of justice to protect the interests of the beneficiaries (at 209-210): 

Generally, the terms of a trust prevail over the provisions of the Trust Code, except "as may be necessary in the interests of justice." In this regard, section 736.0105(2)(b) & (e), Florida Statutes, provides:

(2) The terms of a trust prevail over any provision of this code except:

....

[306 So.3d 210]

(b) The duty of the trustee to act in good faith and in accordance with the terms and purposes of the trust and the interests of the beneficiaries.
....

(e) The power of the court to take such action and exercise such jurisdiction as may be necessary in the interests of justice.

(Emphases added.)

Moreover, the Trust Code specifically acknowledges the court's power to remove a trustee. Section 736.0706(1), (2)(a) & (c), Florida Statutes states:

(1) [A] beneficiary may request the court to remove a trustee, or a trustee may be removed by the court on the court's own initiative.

(2) The court may remove a trustee if:

(a) The trustee has committed a serious breach of trust;
....

(c) Due to the unfitness, unwillingness, or persistent failure of the trustee to administer the trust effectively, the court determines that removal of the trustee best serves the interests of the beneficiaries; or

(Emphases added.)

Finally, section 736.1001(2), Florida Statutes, which provides remedies for a breach of trust, expressly refers to removal of a trustee:

(2) To remedy a breach of trust that has occurred or may occur, the court may:

(a) Compel the trustee to perform the trustee's duties;

(b) Enjoin the trustee from committing a breach of trust;

....

(g) Remove the trustee as provided in s. 736.0706 ;

(Emphases added.)

Thus, while the trust document may contain other and supplemental methods to remove a trustee, it cannot eliminate or curtail the probate court's power and responsibility under the Trust Code to remove a trustee when necessary in the interests of justice to protect the interests of the beneficiaries. §§ 736.0706, 736.1001, and 736.0201, Fla. Stats.; see McCormick v. Cox, 118 So. 3d 980, 988 (Fla. 3d DCA 2013) ("The court's power to remove a trustee and to appoint a special trustee is well settled."); Aiello v. Hyland, 793 So. 2d 1150, 1151 (Fla. 4th DCA 2001) ("Section 737.201(1)(a) [now § 736.0202, Fla. Stat.] unequivocally confers upon this Court the discretion and authority to remove a trustee where appropriate.").

In Aiello v. Hyland, 793 So.2d 1150 (Fla. App. 2001), the Florida District Court of Appeal for the Fourth District affirmed the trial court's order removing a co-trustee. This case was decided before the enactment of Fla. Stat. § 736.0706 and the Court relied on a since repealed statute that conferred courts with the discretion and authority to remove a trustee where appropriate. In this case, the trial court found that the co-trustee had an actual conflict of interest concerning the sale of trust property, he compromised the interest of the beneficiaries, and he demonstrated an inability to discharge his duties as a trustee. The facts supporting removal were fully litigated and the court's findings concerning the trustee's conflict of interest and breach of fiduciary duties were supported by substantial evidence. Therefore, the Court held that the trial court was authorized to remove the co-trustee upon findings that established his inability to discharge his duties (at 1151-1153): 

Based upon the entire circumstances of this case, we determine that the probate court did not abuse its discretion in removing Robert as co-trustee. The decision to remove Robert as co-trustee was an appropriate action based on the fully litigated facts established at a protracted evidentiary hearing. As the court below stated:

Section 737.201(1)(a) unequivocally confers upon this Court the discretion and authority to remove a trustee where appropriate. In Bailey v. Leatherman, 615 So.2d 810 [(Fla. 3d DCA 1993)], the appellate court affirmed a trial judge's

[793 So.2d 1152]

In the instant case removal of cotrustee Robert is not only requested but also absolutely required. On December 22, 1998 this Court partially granted Joy's Emergency Motion For Temporary Injunction Against Co-Trustees in support of her Petition for Removal of Co-Personal Representatives and Co-Trustees by requiring prior Court approval before the Trust property could be sold. That Injunction was based only upon affidavits and verified pleadings. On August 3, 1999 after a hearing on a Petition for Instructions this Court ordered Virgil to remove the lis pendens on the Trust property. This Order has yet to be followed. More importantly on that same date the Court preliminarily determined that Robert had an actual conflict of interest concerning the sale of the Trust property to Virgil and that Bart should be the sole trustee handling any aspect of the sale or mortgage of the property. Following a lengthy and protracted hearing over eight days, affording this Court the opportunity to reach a more informed decision based not on affidavits and verified pleadings but on voluminous exhibits and substantial testimony, this Court can only conclude that it would be remiss and derelict if it did not immediately remove Robert as co-trustee. No other conclusion can be reached short of the highly unlikely divestiture by Robert of his equity interest in DeLuca's Market and his resignation as an officer of that business.

Past performance serves as a good barometer of future behavior. Robert's compromising of the interest of beneficiaries Joy and Gerald allowed Virgil to ensnare the Trust into an unfavorable contract allowing him to purchase the Charles Street Property from the Trust. Equally distressful was his unwillingness to enter into a mortgage agreement with Brookline Savings, a cooperating lender. These actions demonstrate an inability to discharge responsibly his duties as a trustee. Consequently, his tenure as a co-trustee shall end immediately upon entry of this order.

In sum, where the original pleadings in the case sought removal of the trustee and the facts supporting removal were fully litigated over an eight-day evidentiary hearing by implied consent of the parties, and the court's findings concerning the trustee's conflict of interest and breach of fiduciary duties were supported by competent substantial evidence, the probate court, as a court of equity, was authorized under section 737.201(1)(a) Florida Statutes (2000) to remove Robert upon findings that established his inability to discharge his duties. There was no procedural prejudice to Robert, as the real estate contract and Robert's breach of fiduciary duty formed the basis of Joy's petition for removal. The facts alleged in the subsequent motion to void the contract between Robert and Virgil were the same facts alleged in the petition for removal. These facts, once established at the hearing, gave the trial court sufficient cause to remove Robert. The issue of Robert's removal was neither "new" to the case, nor a surprise, as the trial court, in a prior order, had already determined that he had a conflict of interest and was precluded from taking any actions in relation to the trust property. Significantly,

[793 So.2d 1153]

Robert has failed to identify what additional evidence could have been presented to defeat his removal.

For the above reasons, we affirm the trial court's order removing Robert as co-trustee.

No authorities were identified that explained what makes a breach of trust a "serious breach of trust" under Fla. Stat. § 736.0706; however, the following cases involving the removal of trustees may be instructive. 

In McCormick v. Cox, 118 So.3d 980 (Fla. App. 2013), the Florida District Court of Appeal for the Third District found that the trustee breached their fiduciary duty to the beneficiaries of the trust by undervaluing trust property for estate tax purposes and failing to amend the estate tax return to report the ultimate sale value. The trustee and his law firm also breached their duties to post a bond and to render annual accountings to the beneficiaries as specified by the trust agreement and Florida law. The trustee's payment to himself of a seven-figure fee from trust monies without prior disclosures of the alleged entitlement and amount to the beneficiaries or the court also constituted a breach of duty (at 986-987): 

The beneficiaries introduced competent substantial evidence of breaches of fiduciary duty by McCormick, McCormick IV, and MM&M, and resulting damage, thus entitling them to an affirmance on those claims. CFI Sales & Mktg. Ltd. v. Fla. Marlins Baseball, Ltd., 837 So.2d 423 (Fla. 3d DCA 2002).

The beneficiaries called an experienced trust and probate attorney regarding the trustee's duty to diligently ascertain the value of the sole asset of the trusts, the Lynnfield property. That witness also opined that it would be a breach of duty to undervalue the property for federal estate tax purposes. The beneficiaries' expert appraisal witness testified that the market value of the property at the time of Cox's death in 2001 was $8,000,000.00 more than the value accepted by McCormick without a more diligent inquiry.

And as noted earlier, McCormick and his law firm initially alleged in their counterclaims that McCormick should have received credit in 2002 for recognizing the true development capacity of the property and its ultimate sale for $12,000,000.00. McCormick could have amended, but did not amend, the estate tax return to report the higher value. The 1031 like-kind exchange transaction and the associated expenses of $2,146,812.00 were shown to have been necessitated by the undervaluation.

The trustee and his law firm also breached their duties to post a bond and to render annual accountings to the beneficiaries as specified by the Cox trust agreement and Florida law. Section 4.1.4 of the trust agreement specified that individuals named as trustees “shall be required to post bond in an amount equal to the value of the assets held in trust.” Section 737.304, Florida Statutes (2001), allowed the trustee to apply to a court to excuse the trust instrument's requirement for a bond, but McCormick did not seek that relief. McCormick's decision not to file a bond (to save money, according to McCormick) was one which should have been cleared by the beneficiaries in writing or submitted to the court for consideration. A bond allows collection of losses impermissibly incurred by a fiduciary from a solvent, court-approved surety. On the present record, and in the absence of a bond, the beneficiaries must pursue collection remedies (of as-yet unknown efficacy) against the defendants/appellants, with no apparent recourse to a surety.

McCormick conceded that he filed no annual accounting until the four-year report in April 2005. A fiduciary is obligated not only to make prudent decisions, but also to file the annual accountings to keep the beneficiaries informed of income, expenses, and fluctuations in value of the trust assets. Each beneficiary had

[118 So.3d 987]

an enforceable right to receive an accounting from the trustee. Weiss v. Courshon, 618 So.2d 255 (Fla. 3d DCA 1993); §§ 737.303, .3035, Fla. Stat. (2002).

And though this is discussed in greater detail under the disgorgement issue below, a trustee's unilateral payment to himself of a seven-figure fee from trust monies—without prior disclosures of alleged entitlement and amount to the beneficiaries or the court—also constituted a flagrant breach of duty. Lees v. Pierce, 648 So.2d 839 (Fla. 5th DCA 1995). Once the trustee paid the section 1031 like-kind exchange costs, invested in the shopping center property, and paid himself over $1,200,000.00 in “trustee's fees,” the trusts' cash and cash-equivalent assets were severely depleted. The evidence at trial demonstrated that the family trust was unable to pay Mr. Cox's widow all of the principal, some $873,000.00, that she was entitled to receive under the trust agreement, without incurring substantial capital gains taxes.

Based on this record, the Court found that the trial court did not abuse its discretion in removing the trustee and granting the beneficiaries' preemptive request to preclude the trustee's sons from serving as a successor trustee. Citing Fla. Stat. § 736.0706 and Fla. Stat. § 736.1001, the Court noted that the court's power to remove a trustee and to appoint a special trustee was well-settled (at 987-988): 

On this record, it is apparent that the trial court did not abuse its discretion in removing McCormick as trustee, and in granting the beneficiaries' preemptive request to preclude McCormick's sons

[118 So.3d 988]

from serving as a successor trustee. In the absence of such a ruling, McCormick IV and Brad McCormick (in that order) would have succeeded McCormick under Article IV of the trust agreement (as to both the family trust and the bypass trust). Count VII of the second amended complaint essentially sought a declaration that McCormick IV and Brad McCormick should be disqualified from the otherwise self-executing succession provisions because of their participation with their father in MM&M and their knowledge of, or acquiescence in, the breaches of duty at issue in the lawsuit. The court's power to remove a trustee and to appoint a special trustee is well settled. §§ 736.0706, .1001(2)(g), Fla. Stat. (2013).

In Draper v. Stouffer, 2011 Fla. Cir. LEXIS 1328 (Fla. Cir. Ct. January 26, 2011), the Circuit Court of the Twentieth Judicial Circuit of Florida found that the trustee violated her fiduciary duty as trustee because she refused and failed to administer the trust in good faith, in accordance with its terms and purposes, and in the interest of the beneficiaries; engaged in transactions with trust property for her own personal benefit; failed to act impartially in the administration of trust property; refused to administer the trust as a prudent person and in consideration of its terms and distribution requirements; incurred unreasonable expenses in relation to trust property, improperly delegated trust duties, then failed to supervise; failed to protect trust property, refused to keep clear, distinct, and accurate records, and keep the trust property separate from her own property; refused to account; failed to hold, manage or invest the trust asset as required by statute; and, distributed trust principal assets without authority and without proper documentation to the detriment of the trust itself. Based on these violations, the Court removed the trustee (at 6-8): 

In the four years following Mr. Stouffer's death, the trust has been destroyed. Records and accounting for it reflect this and the distributions went far beyond any means shown and any reasonable interpretation of the terms of the trust was principal invasion. The Court does find that Mrs. Stouffer violated her fiduciary duty as trustee of the Williams/Stouffer trust in the following manner because she:

a) Refused and failed to administer The [*7]  Trust in good faith and in accordance with its terms and purposes and in the interest of the beneficiaries, 736.0801;

b) Refused to administer The Trust in the interest of the beneficiaries and engaged in transactions with trust property for her own personal benefit, 736.0801;

c) Failed to act impartially in administration of The Trust property, 736.0803;

d) Refused to administer The Trust as a prudent person and in consideration of its terms and distribution requirements, 736.0804;

e) Incurred unreasonable expenses in relation to The Trust property, 736, 0805; Improperly delegated trust duties then failed to supervise, 736.0807;

f) Failed to protect TheTrust property, 736.0809;

g) Refused to keep clear, distinct and accurate records and keep The Trust property separate from her own property, 736.0810;

h) Refused to account, 736.0813, 736.08135;

i) Failed to hold, manage or invest The Trust asset as required by the provision of chapter 518, Florida Statutes, and

j) Has distributed trust principal assets without authority and without proper documentation to the detriment of the trust itself.

The Court finds that Mrs. Stouffer shall be removed as trustee and the Court will appoint Mr. Stouffer's son, Christopher R. Stouffer, [*8]  as the trustee. If he indicates that he does not wish to serve, then the parties will have to come back into Court for the naming of a subsequent trustee.

In Giller v. Grossman, 327 So.3d 391 (Fla. App. 2021), the Florida District Court of Appeal for the Third District found that the trial court did not abuse its discretion by refusing to remove a trustee. The appellant argued that the trustee should have been removed for breach of fiduciary duties and for conflict of interest. The Court found no indication in the record of a conflict of interest due to the trustee's multiple roles within the family businesses and noted that the trustee did not take a salary or remuneration for her work as a trustee. The trial court found that there was no evidentiary support for the petitioner's allegations of breach of trust. Furthermore, the trial court found that the trustee acted prudently, in conformity with her duties of care as a trustee, and that she took great efforts to safeguard the assets of the trusts and navigate an acrimonious situation for the benefit of all the beneficiaries (at 395-396): 

Brian next argues that the trial court erred by failing to remove Anita as Trustee for breach of her fiduciary duties and for conflict of interest. Brian argues that Anita's service as president of one of the family companies4 and her status as co-personal representative of Norman's estate compromised her ability to serve as independent fiduciary of the trusts. There is no indication in the record of conflict of interest as a result of Anita's several roles within the family businesses; the record indicates that Anita has not taken any salary or remuneration for her work as Trustee. The court stated:

Section 736.0706(1)(a), Fla. Stat. provides that a trustee may be removed under four circumstances. The Petitioner alleged two grounds in support of the Trustee's removal: "the trustee has committed a serious breach of trust" and "[d]ue to the unfitness, unwillingness, or persistent failure of the trustee to administer the trust effectively, the court determines that removal of the trustee best serves the interests of the beneficiaries."

The Court finds that there is no evidentiary support for Petitioner's allegations of breach of trust. Moreover, the Court finds that Anita Grossman acted prudently, in conformity with her duties of care as Trustee under the Florida Trust

[327 So.3d 396]

Code and that she has taken great efforts to safeguard the assets of the Subject Trusts and navigate an acrimonious situation for the benefit of all the beneficiaries. Ms. Grossman has never paid herself or taken a fee for her administration of the Subject Trusts despite what is clearly a time consuming and difficult situation.

We find no abuse of discretion in the trial court's conclusion.

In Estate of Lee v. Gere, 2016 Fla. Cir. LEXIS 37686 (Fla. Cir. Ct. October 3, 2016), the Circuit Court of the Twelfth Judicial Circuit of Florida dismissed the defendant's cross-complaint seeking the removal of a trustee because the defendant failed to allege a serious breach of trust. In this case, the defendant alleged that the trustee exercised undue influence to become the trustee. The Court explained that a breach of trust must occur during the time trustee has acted as trustee (at 8-9): 

Count V: The Magistrate recommends Count V be dismissed because the allegations are internally repugnant. Section 736.1001 provides that "[a] violation by a trustee of a duty the trustee owes to a beneficiary is a breach of trust" See § 736.1001(1), Fla. Stat One of the remedies available for breach of trust is removal of the trustee pursuant to § 736.0706, Florida Statutes. Section 736.0706, in turn, provides [*9]  that the court may remove a trustee if the trustee "has committed a serious breach of trust." See § 736.0706(2)(a), Fla. Stat.

Although Gere purports to state a serious breach of trust in ¶ 211, she fails to do so because she does not allege a breach during the time Eisch has acted as Trustee. Instead, she once again assails the alleged exercise of undue influence by Eisch to become the Trustee.3 Paragraphs 212 and 213 similarly fail to allege any serious breach of trust. In fact, paragraph 212 appears to allege some impropriety in Eisch's distribution of probate estate assets, rather than any action undertaken as Trustee. For these reasons, the Magistrate recommends dismissal of Count V with leave to amend.

Authorities:
Fla. Stat. § 736.0706 (2022)
Fla. Stat. § 736.1001 (2022)
Wallace v. Comprehensive Pers. Care Servs., Inc., 306 So.3d 207 (Fla. App. 2020)
Aiello v. Hyland, 793 So.2d 1150 (Fla. App. 2001)
McCormick v. Cox, 118 So.3d 980 (Fla. App. 2013)
Draper v. Stouffer, 2011 Fla. Cir. LEXIS 1328 (Fla. Cir. Ct. January 26, 2011)
Giller v. Grossman, 327 So.3d 391 (Fla. App. 2021)
Estate of Lee v. Gere, 2016 Fla. Cir. LEXIS 37686 (Fla. Cir. Ct. October 3, 2016)