Personal Injury Lawyer

You never really thought that the attorney your loved one hired to draft their will or trust would use terms or sentences that could be misconstrued in a number of ways, with the end result not resembling their intentions at the time of writing. Since they are obviously not around to witness the distribution of the estate, the intended beneficiaries may be able to hold the attorney that handled your loved one’s estate plan liable for mistakes made in creating their trust if the following criteria is met, even though the beneficiaries are not clients of the attorney. If you suspect your loved one’s estate is not being handled the way the deceased had intended, contact an attorney to discuss the particulars and determine if everything was handled as it should have been.

• Foreseeable damage to the beneficiaries of the trust because of the attorney’s malpractice
• How much harm did the transaction do presently that affects the trust beneficiary or beneficiaries
• How obvious is it that the beneficiary sustained financial injury because of the malpractice of the estate planning attorney
• How much resemblance was there between how the estate planning attorney conducted himself and the damage done to the beneficiary
• The protocol of preventing harm in the future
• Whether or not recognizing the error and culpability on the part of the estate planning attorney would harm the legal profession in general

Remember, not every error that a lawyer makes is considered to be legal malpractice. Legal malpractice occurs when an attorney inappropriately handles a case because of negligence or if they intentionally meant to cause damage to or harm their client. In the case of possible malpractice against an attorney concerning the will or trust of a client who is deceased, the beneficiaries must prove that the intent of the wording of the will or trust was not what the client conveyed.

If a will or trust is contested for whatever reason, a probate court must look into the claim and the document will not be approved until it is decided if the contestment is valid. The person who is challenging the trust is responsible for producing evidence that the trust or will is not valid. If they cannot bring reliable evidence, the trust will not be allowed to be contested.

Language that is Ambiguous

If there is a disagreement between beneficiaries about the document’s meaning, they must submit a petition to probate court asking for an understanding of the language of the will or trust and the intent of the writer, or testator. The court then decides if the language is clear or not and if it is deemed to be clear, the trust is executed as written. On the other hand, if the court states that the language is ambiguous, evidence other than the ordinary review of the document such as any personal history or the testator or the beneficiaries can be also considered. If the language used can be meant in more than one way, it is said to be ambiguous. If that is the case, the court will distribute the property in the estate according to its interpretation of the intent of the trust or will.

If you have concerns about the intent of the will or trust of a loved one and need clarification either about how it was written by the original attorney or how it is interpreted, contact an experienced estate planning lawyer Melbourne, FL trusts to discuss the particulars of your case.

Thank you to our friends and contributors at Arcadier, Biggie & Wood, PLLC for their insight into trusts and estate planning.