Use of Constructive Trust and Correction/Reformation to Cure and Mitigate Attorney and Other Professional Malpractice in Estate Planning

By David W. Tate

The following is a link to an interesting article by Victoria J. Haneman discussing the possibility of using constructive trust equitable remedies to cure or mitigate testamentary mistakes, Click Here.  In fact, at least in California, wills and trusts are supposed to be read or interpreted to accomplish the decedent's intent.  See, e.g., Cal. Probate Code Secs. 21101 and 21102, and related cases.  However, it is possible that a court might not always be procedurally willing to render a determination reforming the testamentary instrument to conform to that intent.  Although instrument reformation to intent is the preferable remedy, as an alternative, and although perhaps somewhat more difficult to implement and oversee, constructive trust might be argued to obtain a remedy that effectively requires that the assets are used for the purpose that the decedent intended.  See, e.g., Cal. Civ. Code Secs. 2223 and 2224, and related cases.  Of course, the unintended beneficiary of the mistake can oppose the action at reformation or constructive trust, arguing that the instrument is worded as the decedent intended, and that the decedent's execution of the instrument creates a presumption that the provisions are as the decedent intended and that any admissible evidence to the contrary is insufficient to establish otherwise.  As in typical trust and will dispute cases, the outcome likely depends on the direct and circumstantial evidence relating to the decedent's intent and natural testamentary dispositions, the nature of the mistake or erroneous wording, the decedent's mental capacity to execute the testamentary instrument, the relationship between the decedent and the unintended beneficiary, possible undue influence, and other similar and related factors.

DAVID W. TATE, ESQ.

E-mail: tateatty@yahoo.com; Website: http://davidtate.us

Blogs: http://davidtate.wordpress.com; http://californiaestatetrust.wordpress.com

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