When trustees fail to perform their duties as trustee, the Florida Trust Code provides a number of remedies, including removal of the trustee.
In Kountze v. Kountze, (2nd DCA 2012), the trustee had apparently failed to respond to some discovery. The beneficiary suing the trustee requested that a hearing be held on the failure to respond and asked, in his motion, that the trustee be required to pay attorney fees. There was also a prior order from the trial court requiring the trustee to respond to the discovery or face monetary penalty.
The Court removed the trustee, referring to Florida Trust Code section 736.0706, which provides as follows:
[A] trustee may be removed by the court on the court’s own initiative * * * if * * * [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.
Removal of a Florida Trustee Requires Evidentiary Hearing and Notice
The appellate court reversed, however, on several errors made by the trial court. First, the appellate court found that an evidentiary hearing must be held prior to the removal of a trustee under the Florida Trust Code:
The statute [the Florida Trust Code] therefore suggests that a factual finding must be made by the trial court as to the trustee’s unfitness, unwillingness, and persistent failure to administer the trust effectively.
The next error was that the trustee had not been put on notice from the motion for sanctions that removal of the trustee was being sought by the beneficiary. Because there was nothing in the record to put the trustee on notice that removal as trustee was a possible sanction, the trustee had no reason to be prepared to defend against such a sanction.
The trial court also explained in its ruling that the removal sanction was being imposed for failure to comply with previous court orders. The appellate court ruled that such a sanction is analogous to an indirect civil contempt order, which does require notice and an opportunity to be heard.
Good lesson – when seeking drastic remedies against a trustee such as removal, always ask in the motion for all of the remedies that could be imposed under the Florida Trust Code, and always ask for an evidentiary hearing.
