Ambiguous Drafting can Cause Expensive Litigation

What’s the meaning of a sentence in a Trust or a Will? once the ink is dry on the paper, the document is expected to “speak for itself” without the need to hunt for external evidence to understand the meaning of the words. A recent case called In the Trust of Roger S. Linn, decided by the Nebraska Supreme Court, illustrates the problems caused by ambiguous drafting.

Roger Linn had established a trust for benefit of his wife Shirley, and his children were the remainder beneficiaries. At a certain point after his death, Shirley moved to an assisted living facility. The Trust document required  the Trustees to pay all income to Shirley, but distribution of principal was within the Trustee’s sole discretion. The trust document specified in Article V.10(f) that the trustees had to pay “any obligations that the Donor’s spouse may incur in acquiring assisted living or nursing home care.” The Trustees paid the down payments and move-in fees to “acquire” the apartment within the assisted living facility, but they refused to pay for the ongoing monthly costs for Shirley to live there. That led to this litigation. Each side argued that the Trust was unambiguous and supported their position. The Trial court (District Court) found that the Trust was clear – unambiguous — and that it did not obligate the Trustees to pay for the ongoing costs. The Supreme Court ruled that the language was actually unclear – ambiguous — and remanded for a trial to determine the intent of Mr. Linn.

Similar cases have occurred in New Jersey, and the standards are similar – the Court looks first to the express words of the document read in conjunction with the document as a whole to arrive at their natural meaning, and seeks to determine the intention of the Trust’s creator in that manner first, before turning to extrinsic evidence. There is a state statute about this — N.J.S.A. 3B:3–33.1(b), which says that the trust’s language and statutory rules of construction control “unless the probable intent of such settlor or of such individual, as indicated by the trust or by such governing instrument and relevant circumstances, is contrary.”  A recent New Jersey case with this problem was In re the Trust of Violet Nelson (2018).  However, as with all litigation, it’s expensive for everyone involved.

Sometimes it’s necessary to draft the language with many more words or sentences to achieve clarity. Always, the draft should be reviewed from the perspective of someone reading it years down the road when all that one can depend on is the words themselves. Will the plain intention be clear? That’s the test of a well-written document.

Careful planning can avoid a crisis. Call us for advice and assistance with preparing your estate and trust plans ……… 732-382-6070

 

Can you Change a Will without a Writing?

I cannot tell you how many times over the years a client has told me that despite what is written in the Last Will and Testament of their parent or grandparent or Aunt or Uncle, “s/he said that s/he was leaving the house to X,” or “she wanted Y to get more because he moved in and was taking care of her at the end” or “she gave a lot of money to Z and intended him to pay it back from his share of the estate” or “she lent money to X but said the loan was forgiven” or “she left it to J. but told him he had to hold it for K.”   In each of these situations of course, the deceased person never put anything like that into their Last Will and Testament, and never signed a new Will or even a Codicil (formal amendment) to the existing will. Similarly, I also hear expressions of surprise when people read what is actually written in the only Will that was found — “She told everyone she had changed it!!”

Can you change your Will without a writing? New Jersey statutes suggest that the answer is “no.” I was actually aware of a case in court in New Jersey years ago in which the deceased had never changed her signed Will but a family member insisted that it had been revoked by a series of oral statements allegedly expressed to different people. I don’t know how that theory worked out for him. No doubt the litigation cost the estate a great deal of money. Also I litigated a case in which one of the testator’s children claimed that her mother had revoked a Will and Trust by various oral statements. That lawsuit was dismissed on summary judgment.

A Last Will and Testament is a written document that is signed, dated and witnessed. It’s called “Last,” because if there is a presumption that if no writing was signed later on and the document still exists, the deceased person intended it to be the last will and testament. The law presumes that the last document supercedes all prior Wills. In fact, just to be safe, many — perhaps most — Wills expressly say that “this document replaces all prior Wills.”

How can a Will be revoked? There either has to be a writing [signed etc.] that amends or revokes the Will, or there has to be some affirmative and intentional act of revocation. The statute says: “By the performance of a revocatory act on the will, if the testator performed the act with the intent and for the purpose of revoking the will or part or if another individual performed the act in the testator’s conscious presence and by the testator’s direction. For purposes of this subsection, “revocatory act on the will” includes burning, tearing canceling, obliterating or destroying the will or any part of it. A burning, tearing or cancelling is a “revocatory act on the will,” whether or not the burn, tear, or cancellation touched any of the words on the will.”  Some old cases dealt with accidental destruction by fire, or additional papers found with writing on them that seem to amend a Will but it isn’t quite certain.  New Jersey has a statute concerning documents that don’t meet the specific requirements to be treated as a “Will,” and those documents are referred to as “a writing intended to be a Will.” But there always has to be a “document or writing.” There is a rational reason for these statutes. It is only when there is a writing that was reviewed by and signed by the deceased person that there can be reasonable certainty of what his or her last intentions were. Without a writing, it becomes a battle between interested parties who have a motive to either invent the alleged oral statements or to deny that the claimed statements were ever made (especially if they say that no one else was present when the alleged statements were made). With a writing, it not only speaks for itself, but there is often extrinsic evidence to authenticate the making and signing of the document.

Forewarned is forearmed. If it has been years since your parents reviewed their estate plan documents — or if they never bothered to sign a Will — this would be a good time to remind them to take care of it. Of course, getting your intentions in writing and updating your own plan is always a good idea.

Call us about senior care and estate planning with wills and trusts … 732-382-6070

Help is available with legal document translation

For those of you who who are dealing with legal issues involving documents in foreign languages, whether on behalf of yourself or your clients,  one of my readers from the Language Alliance brought the following to my attention. She said that this on-line article could be of use to you:  Certified Document Translation for Estate Planning and Probate Attorneys, and Finding Intent in a Foreign Language Will http://www.translationforlawyers.com/2007/12/certified_document_translation.html

 

The Language Alliance is a network of legal translators and court interpreters: http://www.languagealliance.com

Call us for estate and trust planning legal services …….. 732-382-6070

 

 

How to create a master plan for the care of your special needs child

If you’ve been caring for your child who has special needs, you have deep personal knowledge of how your child behaves and responds. You know what they like and what they hate. You know what triggers an anxious or distressed reaction. It could be a flavor, a show, a color, or a person.

As an aging parent, you are probably concerned about who will take care of your child when you are gone. Even as a young parent, this could be on your mind. You may be thinking only about your estate plan – what funds should I set aside? Who will mange those for my child? Do I need a Special Needs Trust (SNT)? Who should I designate as the successor guardian in my Last Will and testament? These are critical decisions for you to make. But what about the actual care plan? There are so many details to think about and convey to the person who follows in your shoes.

Who is going to take your place? Can your child stay in the home? Who will live there and oversee the daily routine? Who will take care of the house? How will they know just what your child is like, or what your preferences are? How will they know about the social life and cultural life your child enjoys? If religious practices or weekly rituals are important, does the potential caregiver know about that? Do they know just how you enable your child to participate in these activities? What is the supported decision-making model that you have been using with your child?

The answer is to write up a blueprint for special needs care — a “master plan”. Call it what you like, it is a detailed discussion of the kinds of things just described. Write up the daily schedule, food preferences, clothing preferences. Include names of favored friends and relatives, best-loved teachers and aides, doctors and health care providers, and people who must be avoided. Collect the IEPs, IQ tests and other cognitive evaluations, progress reports, court orders, and medical records. Collect the current Social Security or SSI documents and Medicaid or Medicare proofs. List the doctors and prescriptions. Make requests or recommendations for activities and outings. No detail is too small.

Estate planning is much more than just a Will, trust or power of attorney. It’s about creating peace of mind and a sense of security for your special needs child as well.

Call us for special needs future care planning, and estate planning … 732-382-6070