New York Estate Planning & Elder Law Blog
The value of carefully drafting a trust or will is emphasized by understanding the limited situations in which a court corrects mistakes that might arise in trusts or wills. The court’s response varies based on not the jurisdiction, but also often the type of estate planning mistake that was made. This article reviews some critical details to understand how New York courts various estate planning errors.
# 1 – Distinguish Capacity and Undue Influence from Mistakes
If a mistake is the result of the lack of competence by the testator or if the testator under the undue influence of someone else, courts often apply a different test to assess whether the will or estate planning document should be set aside. It’s sometimes the case that the concepts of undue influence, fraud and mistake are joined together, which can lead to substantial confusion.
# 2 – Mistakes of Expression
Mistakes of expression happen when a trust or will include a term that inadequately states the testator’s intention, fails to include a term that was meant to be included, or includes a term that is not meant to be included. Mistakes of expression are often the result of drafting errors. Reformation of a will to correct an error in drafting is sometimes available if a drafting error can be established through clear and convincing evidence. Mistakes of expression that come from lawyer’s errors commonly result in lawsuits against the attorney who drafted the estate planning document.
# 3 – Mistakes in Execution of a Will
The law of strict compliance requires that wills are executed in accordance with statutory formalities or that these documents cannot be admitted to probate. Under California law, however, if a person can establish through clear and convincing evidence that the deceased intended the wrongly executed will to be the deceased individual’s, the erroneously executed document will be treated with such consideration.
# 4 – Mistake in the Inducement
Mistake in the inducement occurs when the person creating a will misunderstands a relevant fact or law and makes a bequest they would not have made if they knew the true fact or law. California courts will not set aside a gift based on a mistake in the inducement.
# 5 – Mistakes about Legal Effects of Will or Trust
A mistake about the legal effect of an estate planning provision does not establish a basis for the estate planning document to be modified or set aside even if the error was the result of incorrect legal advice. As a result, these errors and how they are treated by the court emphasize how critical it is to select an estate planning attorney with adequate experience preparing trusts and wills.
Speak with an Estate Planning
When estate planning disputes occur, it’s common for people to be uncertain about the best way to argue their case. One of the best steps to take in such a situation is to obtain the assistance of a knowledgeable estate planning attorney. Contact Ettinger Law Firm today to schedule a free case evaluation.