Mistakes happen all the time when people are making their estate planning documents. The law is designed to provide fair remedies and solutions for families and loved ones who are victimized by an honest mistake by the deceased relative.

A uniform code for dealing with mistakes in wills is set froth in the Restatement of Property (Third)- Wills and Donative Transfers, which provides:

§ 12.1 Reforming Donative Documents To Correct Mistakes

“A donative document, though unambiguous, may be reformed to conform the text to the donor’s intention if it is established by clear and convincing evidence (1) that a mistake of fact or law, whether in expression or inducement, affected specific terms of the document; and (2) what the donor’s intention was. In determining whether these elements have been established by clear and convincing evidence, direct evidence of intention contradicting the plain meaning of the text as well as other evidence of intention may be considered.” Read the rest of this entry

The Restatement (Third) Property (Wills and Donative Transfers) §4.1 provides that “if a will cannot be located after death, but the trier of fact finds that it was not revoked, the will is entitled to probate if its due execution and contents can be proved. Commonly in such cases, the will is proved by evidence from a law-office or other copy, or from the drafter’s notes and recollection. If its full contents cannot be proved, the will is entitled to probate to the extent that its contents can be proved.”

Similarly, Florida has adopted its own code provisions regarding the practice and procedure for admitting lost or destroyed will to probate. See Florida Probate Rule 5.510. However, there are some jurisdictions that have not adopted a code provision regarding the procedure for use when a will cannot be located after the decedent’s death. Read the rest of this entry

Extrinsic Evidence Sufficient to Construe Settlor’s Original Intent

The new Florida Trust Code recognizes the recent increase in use of long-term trusts, thereby requiring greater flexibility in the restrictive rules that apply concerning when a trust may be terminated or modified other than as provided in the instrument. The governing principal of the trust code is to carry out the settlor’s intent. The power to modify the terms of a trust appears in a variety of sections of the new trust code. For example, a court now has discretion to modify an irrevocable trust because of circumstances not anticipated by the settlor. In exercising its discretion the court is to consider any spendthrift provision but is not precluded from modifying the trust for that reason. Fla.Stat. §736.04113. Also, a court may modify a trust if such action is in the best interest of the beneficiaries. Fla.Stat. §736.04115. Read the rest of this entry