Blogs from April, 2009


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 forth 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.”

The comments to this section of the Restatement explain that “when a donative document is unambiguous, evidence suggesting that the terms of the document vary from intention is inherently suspect but possibly correct. The law deals with situations of inherently suspicious but possibly correct evidence in either of two ways. One is to exclude the evidence altogether, in effect denying a remedy in cases in which the evidence is genuine and persuasive. The other is to consider the evidence, but guard against giving effect to fraudulent or mistaken evidence by imposing an above-normal standard of proof. In choosing between exclusion and high-safeguard allowance of extrinsic evidence, this Restatement adopts the latter. Only high-safeguard allowance of extrinsic evidence achieves the primary objective of giving effect to the donor’s intention. To this end, the full range of direct and circumstantial evidence relevant to the donor’s intention…may be considered in a reformation action.”

Florida’s Supreme Court dealt with a case which, after sixteen years, is still cited as one of the leading cases dealing with the concept of reformation and remedies to correct a mistake in estate planning documents. In Estate of Tolin, 622 So.2d 988 (Fla. 1993). The case remains a great example to explain the law’s approach to reforming estate planning when a mistake has been made.

The case involved the estate of one Alexander Tolin who died in 1990. His estate plan began several years prior when he executed a Last Will and Testament. Under this Will, the residue of his estate was devised to his friend, Adair Creaig. The Will was prepared by his attorney, Steven Fine, and executed in the attorney’s office. The original Will was retained by the attorney and a blue-backed photocopy of the original executed Will was given to Mr. Tolin.

Later, Alexander Tolin executed a Codicil to the Last Will and Testament which changed the residuary beneficiary from Adair Creaig to Broward Art Guild, Inc. This Codicil was also prepared by his attorney, Steven Fine, at the attorney’s office. Again, the attorney retained the original in his office and Mr. Tolin was given a blue-backed photocopy of the original executed Codicil.

Approximately six months prior to his death, Mr. Tolin advised his neighbor, and a retired New York attorney, Ed Weinstein that he had made a mistake and that he wished to revoke the Codicil and reinstate Adair Creaig as the residuary beneficiary. Mr. Weinstein advised him that he could accomplish his purpose by tearing up the original Codicil. Unfortunately, Mr. Tolin tore up the photocopy which he thought was the original Codicil. The mistake was discovered soon after his death and as expected, a court battle ensued to determine whether the Broward Art Guild or Adair Creaig was the proper beneficiary of Mr. Tolin’s estate.

The case reached the Chambers of the Florida Supreme Court which initially observed that the strict letter of the law (the Florida Probate Code §732.506) requires the intentional destruction of the original will or codicil in order to effectuate a revocation. Since it was undisputed that the original was not destroyed because of a mistake, the court then asked whether a constructive trust should properly be imposed when a testator fails to effectively revoke a codicil because of a mistake of fact which prevented the testator from fulfilling the requirements of section 732.506.

What is a Constructive Trust?

The Court explained that a constructive trust is properly imposed when, as a result of a mistake in a transaction, one party is unjustly enriched at the expense of another. The Court observed that it would be quite unfair for the Broward Art Guild to benefit by virtue of Mr. Tolin’s mistake in tearing up the copy of the Codicil instead of the original:

The court was prescient in noting that “this case shows the importance of distinguishing an original document from a copy. The facts in the instant case show that the testator’s mistake in destroying a copy of the codicil, rather than the original, was caused by the high quality of the copy, which made it indistinguishable from the original. As technology advances, the determination of whether an instrument is an original or a copy may become more difficult. Thus, it is advisable for attorneys preparing documents, such as wills and codicils, to consider designating which documents are copies. Such a designation would have aided in the disposition of this case.”


Most Recent Posts from April, 2009