An irrevocable trust included provisions for the removal of a trustee by reason of the trustee’s disability. A beneficiary brought an action to remove the trustee, but not based on the specific definition and removal provisions of the trust. Could the beneficiary use Trust Code provisions to remove the trustee when the trust instrument had different provisions? In a recent case, the trial court held that the terms of the trust required that removal could be based only on the terms of the trust.

While under the Trust Code the terms of a trust may prevail over the terms of the Trust Code, an exception to this rule exists under Fla.Stats. § 736.0105(2)(e) which provides that the provisions the trust instrument cannot override “the power of the court to take such action and exercise such jurisdiction as may be necessary in the interests of justice.” The Trust Code also includes other provisions specifically granting powers of removal to the court. The 3rd DCA, in reviewing the question. . .