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Judicial Reformation of a Will – Like Running Through a Minefield!

By Hoge Fenton | 07.16.2019 | Firm Post

Our trust and estate litigation team recently took a will contest case to trial in which the decedent’s estate planning documents did not accurately reflect her intent. At issue was what, if anything, the court would do about it.

The consequences of having a will which does not express what the decedent intended can be devastating to the heirs. Those contesting the will face the burden of proving the decedent’s intentions, and the evidentiary hurdle is high. There must be clear and convincing evidence.

In California, the intent of the testator – and not merely words on a page – govern the disposition of one’s estate. In determining that intent the court gives great weight to what the testator originally communicated to the drafting attorney.

In our case, the attorney who drafted the will testified at trial as to what the decedent said about how she wanted her community property controlled. Fortunately, that attorney had maintained detailed notes of the client meetings. Ultimately, we persuaded the court and prevailed at trial.

Practice Pointer: Although this situation is rare, it underscores the importance of attorneys, financial advisors, and related professionals keeping good notes that reflect the intentions of their clients.

Click here for the full article, authored by Denise E. Chambliss and Mallory L. Homewood, and reprinted with permission of the Eastern Alameda County Bar Association (EACBA Newsletter, Summer 2019).

This article is provided as an educational service by Hoge Fenton for clients and friends of the firm. This communique is an overview only, and should not be construed as legal advice or advice to take any specific action. Please be sure to consult a knowledgeable professional with assistance with your particular legal issue.

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