Contact Us: 781-705-6400

Timing is Everything So Make Sure You Sign Your Will Now!

By Harry S. Margolis

In 2005, Paul Lesanto executed a trust that upon his death would divide his estate between his then wife, Donna, and his two children from a prior marriage, Gary and Dianna. He also executed a so-called “pour over” will that would transfer most of his property into the trust, making the trust the governing document in terms of the disposition of Paul’s estate.

Subsequently, Paul had a financial dispute with his ex-wife, Theresa, and was angry with his children who sided with their mother. In 2010, he asked his new lawyer to draw up fresh estate planning documents disinheriting Gary and Dianna, which the lawyer did, creating a new trust and will. Importantly for what followed, the trust contained language revoking all prior trusts Paul may have created.

Paul dropped by the lawyer’s office one day unexpectedly to sign the documents, but no one was then available to witness the will. As a result, he only signed the trust, intending to return another time to execute the new will. Unfortunately, the following day Paul fell ill and went to a hospital, which he never left, dying without signing the new will.

The result was both a will dispute and an ideal fact pattern for a law school exam.Paul’s most recent 2010 trust revoked his prior trust. His old 2005 will directed his estate into the old 2005 trust, which now no longer existed due to the revocation. Inevitably, this lead to a dispute between Donna and Gary and Dianna.

At trial, the judge seeking to put Paul’s intent into effect, reformed the 2010 trust to be an amendment to the 2005 trust rather than a replacement trust. This way, Paul’s 2005 will would pour his estate assets into the new trust. Problem solved . . . at least until the appeal.

The Appeals Court in Lesanto v. Lesanto (Mass. App. 12-P-1111, April 21, 2015), holds that none of the circumstances permitting reformation exist in this case. Those circumstances generally involve mistake by the attorney — often called “scrivener’s error — or misunderstanding by the client. In this case, the attorney made no mistake and Paul understood the effect of the documents. He just never got around to signing one of them. Here’s the court’s explanation:

It is true that the seemingly simple reformation of the second trust to label it an amendment of the first trust would render it unnecessary for Paul to execute a second will. We cannot say on this record, however, that it was Paul’s intention by executing the second trust, alone, to complete his estate plan. Where he anticipated executing a new will and thereby complete his estate plan, it is not for the courts to step in and render that additional step unnecessary and even less to anticipate the form of his will ultimately would have taken when signed.

The result, with the 2005 will transferring Paul’s estate to a nonexistent trust, is that his estate will be distributed according to the laws of intestacy, the statute that governs the distribution of estate assets in the absence of a will. In this case, the result more or less matches Paul’s original estate plan with half going to Donna and the other half being split between Gary and Dianna.

The moral of this story? Take your pick:

  1. Call your lawyer before showing up to sign documents to make sure that witnesses are available.
  2. For the lawyer to not require a new will when updating an estate plan.
  3. Don’t disinherit your children — courts will do what they can to prevent this from happening.
  4. Don’t get sick and die while in the process of updating your estate plan.
  5. Stuff (to avoid the usual word) happens.

Clearly, this case is too unusual to be of great guidance. But it’s instructive nonetheless in terms of the law: courts may not reform estate documents to avoid unintended consequences in the absence of provable error.

Newsletter Sign Up

Contact Us

We’ve moved. But not far. Our new address is: 20 William Street, Suite 320, Wellesley, MA 02481

Contact Haley

Contact Steven

Contact Sarah Henry

Contact Michael

Contact Sarah Hartline

Contact Laura

Contact Patricia

Contact Jeffrey

Contact Harry