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.” (more…)

I’m always curious to see how remote the conclusion of a case involving application of a probate rule is to the legislative intent of the rule at the time of it becomes law. One such case recently surfaced in New England where the court’s application of a Rhode Island intestacy statute resulted in what may be considered an unjust and bizarre result.

In Fleet Nat’l Bank v. Hunt 944 A.2d 846 (R.I. 2008) the court faced the estate administration of Art Hadley, a self-made entrepreneur and successful New England businessman, who died in 1941; survived by his wife, Frances and his two children, Thomas and Sarah.

After Art Hadley’s death, Thomas married Betty, who had two children from prior relationships: Janet Hunt and Lucille Foster. A few years after Frances died, Thomas formally adopted Janet Hunt and Lucille Foster, both of whom were over eighteen years old. In 1993, Thomas died, having no biological children but survived by Betty and his two adopted daughters, Janet Hunt and Lucille Foster.

Art Hadley’s other child, Sarah, died childless and unmarried on January 3, 2002. Her death triggered the distribution of two Hadley trusts. At the time of her death, Art Hadley had no surviving children, or biological grandchildren, or biological issue. However, Thomas’s two adopted daughters, Janet Hunt and Lucille Foster, were living. (more…)

About Face by Third District Court of Appeals Advances Creditors Claims to Constitutionally-Protected Homestead Property:  General Direction to Pay Estate Taxes Trumps Constitutional Homestead Protections.

In a surprising reversal, the Third District Court of Appeals on Tuesday, September 3, 2008, reheard and reversed its own opinion issued almost 19 months ago in Cutler v. Cutler, In Re:  The Estate of Edith Alice Cutler, 2008 WL 4057751, 33 Fla.L.Weekly D2103a (3rd DCA, No. 3D07-3070, Sept. 3, 2008).

The opinion is significant for probate administration and litigation attorneys, and estate planning professionals for at least two reasons: (1) The Third District Court of Appeals joins the Fifth District in expanding the types of interest in land that may qualify for homestead protection; (2) a general direction in the administrative language at the end of a Will may now trump constitutional homestead protections. (more…)