Mistakes in Wills – Court corrections
By Cody Ross, Esq., Intern for
AnnMichelle G. Hart, Esq.
April 9, 2021
It is critical to have a knowledgeable and experienced attorney assist you in the creation of your estate plan, whether that be a will, trust, or both. This is because courts will correct mistakes in a will or trust in only limited circumstances. Without an attorney, it can be difficult to avoid the mistakes that can prevent your last wishes from being properly honored. This article will analyze the different types of mistakes that can arise in the creation and probate (administration) of a will or trust and when mistakes can be corrected by the court.
Mistakes in Inducement
The first mistake that can arise in a will is a mistake in the inducement of the will. This is when the person creating the will (the testator or testatrix) misunderstands a fact or law and, relying on that mistake, makes a gift that they would not have made otherwise. An example would be when a testator does not provide for one of their children because they believe that their spouse provided for the child in their own will. It becomes clear that, without this mistake, the testator would have provided for their child.
While many states do not allow for mistakes in inducement to be corrected by the court, Washington is not such a state. Courts in Washington are permitted to reform the language of a will, even if clearly written, to conform to the intentions of the testator. The courts require that the intent of the testator be shown by clear, cogent, and convincing evidence that both the intent of the testator or trustor and the terms of the will or trust were affected by a mistake of fact or law, whether in expression or inducement. This intent can normally be shown through language in the will or trust to the effect that the gift is only be given because of a specific condition. The lack of that condition would then show the intent that the gift does not exist if the condition is not properly understood.
Mistakes About Legal Effect of Will or Trust
A similar, but distinct, concept is the concept of the mistake about the legal effect of a will or trust. This arises when the intent to create the gift is clearly present, but there is not a proper understanding of the effect of such a gift. An example would be a testator believing that providing a certain gift avoids or prevents a taxable event, even though the gift is subject to a tax. Because the gift is not premised on a mistaken fact, most courts will not allow for any correction of a mistake about the legal effect of a will or trust. This seems unfair, but because the gift is not premised on an event, courts are hesitant to undue the gift. This illustrates why knowledgeable counsel is so important, it can prevent the recipients of your estate from suffering detrimental effects from their gifts.
Mistakes in Expression
Mistakes in expression occur when the terms of a will or trust misstate the intent of the testator, includes a term that was not meant to be included, or excludes a term that was meant to be included. The best example is when the attorney drafting a will forgets to include a gift to a specific person and therefore the person does not receive the gift that the testator wished to give them. As stated above, Washington courts will allow for such a mistake to be corrected if the intent of the testator can be shown by clear, cogent, and convincing evidence.
This again shows the importance of having proper counsel. It is also worth mentioning that if an attorney does not properly draft a will or trust, that attorney may become subject to a malpractice lawsuit from the estate of the testator.
Mistakes in Execution of a Will
A mistake in the execution of a will arises when the will is not properly created according to the requirements of the law. An example would be if there is only one witness to the signing of the will when two are required. Although the old rule was that strict compliance to the laws was required for a will to be valid, that rule is almost completely abandoned. Now most jurisdictions follow a substantial compliance or harmless error test where the will is valid so long as most or all of the important requirements are met.
It is important to hire an attorney for your estate planning so that you know that all of the requirements for a valid will or trust are met and your wishes will be honored.
Hiring an attorney is also important because there are certain statutory exceptions to the execution of a will that the attorney will be aware of that the average person will not know. For example, in Washington, there are omitted spouse and omitted children laws. These laws allow for a child born after a will is created or a spouse married after the creation of the will to receive a share of the estate equal to what they would have received if there was not a will at all. This is true unless it appears in the will or from clear and convincing evidence that the failure to provide for the spouse or child was intentional.
Distinguishing Capacity and Undue Influence from Mistake
A related, but separate, issue to mistakes in a will or trust are the challenges related to capacity and undue influence. A diminished capacity challenge arises when the testator did not have the proper mental faculties to create a proper will. An example would be a person with dementia that does not know what they actually own.
An undue influence challenge arises when the testator was unable to create a trust or will that reflect their true intent because of the overbearing influence of another. An example would be a second wife constantly belittling the children from a testator’s prior marriage to convince the testator to not provide for those children.
Although these are similar in that a testator does not understand the circumstances around their gift completely, it is not the same as a mistake because the intent of the testator is being overridden by a force outside of their control. The line is not completely clear though, as some jurisdictions require a showing of a mistake of fact to be caused by undue influence for an undue influence challenge to succeed.
Because there are many common mistakes that a person could fall into when creating their will or trust, it is crucial to retain an estate planning attorney. This will create the highest chance for your final wishes to be honored and not challenged as a mistake or the product of undue influence.