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Sunday, January 17, 2016

Can Court Reform a Will When the Attorney Made a Drafting Mistake?

In a recent New York case, a Will provided for disposition of 2/3 of the property (leaving property to decedent’s siblings, nieces and nephews) and was silent about the disposition of the remaining 1/3. In re Isasi-Diaz, NYLJ, Mar. 28, 2014, p. 35 (Sur. Ct., N.Y.Co.) (Mella, S.)  The attorney-draftsman provided an affidavit to the court, explaining that he made a mistake, that the decedent provided him with instructions about the disposition of her entire estate, but he made an error while drafting the Will.

The court denied the petition for reformation. The court reviewed the express language of the Will. The court also relied on the well-established New York rule that extrinsic evidence will not be admissible to contradict the unambiguous expressions of the decedent. As a result, since the Will was unambiguous about disposing only a portion of the estate, the court ruled that it could not rewrite the Will based on extrinsic evidence.

The takeaway: please review your documents prior to signing them. Attorneys are human and make mistakes. You should always request to review your documents prior to signing and actually spend the time reading them to ensure that they reflect your wishes. Do not be afraid to change or add things, since this is your document! Do not be afraid to ask questions!

 

Disclaimer: This article only offers general information.  Each situation is unique. It is always helpful to talk to a specialized attorney, to figure out your various options and ramifications of actions.  As every case has subtle differences, please do not use this article for legal advice. Only a signed engagement letter will create an attorney-client relationship. ATTORNEY ADVERTISING


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