Friday, January 31, 2014

Wills and Trusts Drafting Errors Can Be Costly

The mantra for any transactions attorney in the business of drafting a will, trust, or other legal document is simple: proceed with care.  Errors and omissions can be costly for their clients.  The Louisiana Supreme Court issued an opinion this week that highlights the issues involved when a will omits crucial information.

The issue in Succession of James Jason Holbrook, Sr. was whether an incomplete date in an attestation clause invalidated the will.  Mr. Holbrook's will contained a date in the first paragraph and on every page of the will, including the attestation clause, but not actually in the attestation clause, which is next to the testator's signature.  The attestation clause stated that it was signed on the "___ day of 2009."  The testator's daughter filed a petition to set aside the will on this basis.  If successful, all devises to others, including Mr. Holbrook's surviving spouse, would have been set aside.  The district court granted the testator's daughter's motion for summary judgment seeking to set aside the will as invalid because the attestation clause was incomplete and did not meet all of the requirements of Louisiana law.  The court of appeals affirmed.  The Louisiana Supreme Court, however, reversed and remanded the case back to the trial court, having found that the testator substantially complied with Louisiana law.

In this case, the testator's will was ultimately not set aside for this reason, however, to get to this result, the parties were required to litigate and appeal to both state appellate courts, ultimately costing thousands of dollars in fees.  It is doubtful that Mr. Holbrook would have wanted all the family infighting over his estate. The court's holding would not necessarily apply to every case, as I believe that Holbrook had distinctive facts to set itself apart from other cases where the court had previously held a defective will to be invalid.  Substantial compliance is a fact-based determination--no two cases are alike.  Also, as illustrated by Holbrook, these matters take some time to resolve.  The testator's will was admitted to probate on July 14, 2010, but because of numerous appeals, it is still unresolved three and one-half years later.

The lesson learned is to dot all of your i's, cross all of your t's, and fill all of your blanks, or face the risk that your will could be litigated.  The link to the full opinion can be found on the Louisiana Supreme Court's website, or via Justia.

C. Michael Daily is an attorney with the long-established law firm of Daily & Woods, P.L.L.C. and is licensed to practice in the states of Arkansas, Oklahoma, North Dakota and Wyoming. Mr. Daily can be contacted by telephone at 479-242-3953, by email at mdaily@dailywoods.com, or by regular post at 58 South 6th Street, Fort Smith, Arkansas 72902.  You can follow Mr. Daily via social network using any of the social network links in the right hand column of the page.  Disclaimer:  This blog is for informational purposesis certainly not to be considered legal advice and is absolutely not substitute for any of the benefits that are associated with the attorney-client relationship.