How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask Dimitry Esquire Your Own Question
Dimitry Esquire
Dimitry Esquire, Attorney
Category: Estate Law
Satisfied Customers: 41220
Experience:  JA Mentor. I run my own practice that specializes in Estate Preparation and Administration
18572087
Type Your Estate Law Question Here...
Dimitry Esquire is online now
A new question is answered every 9 seconds

I live in colorado, in june of 2015 my husband and i met

Customer Question

I live in colorado, in june of 2015 my husband and i met with attorney and he amended his will and trust. such being a certain property previously gifted to a son in may of 2013 was revoked as a gift and placed back into the trust.my husband passed the end of august, then I found out in the amended trust the attorney admittedly made a scriveners error, a typo basically, he listed my husbands previous trust as the one being amended, in fact that trust was revoked and renamed and the intent was to revoke said gift from renamed trust what can we do?
Submitted: 1 year ago.
Category: Estate Law
Expert:  Dimitry Esquire replied 1 year ago.

Thank you for your question. Please permit me to assist you with your concerns.

What governs here is the 'intent' of the deceased. If there is a 'minor' error based on a typo, the courts would need to see the intent of the parties prior to the amendment so that the courts can uphold the change and likewise apply the change as intended rather than as written. Otherwise, if there is no intent of the parties that can be clearly shown, the amendment as a whole is voided, and the original trust and will is deemed as valid. If this mistake is only in the trust, then the new will will also be upheld, but the trust changes won't be. Likewise this mistake is only in the will, then the will will not be upheld, and codicil will be revoked, and the original will be be controlling.

Sincerely,

Dimitry, Esq.

Customer: replied 1 year ago.
Thank you for your assistance, however your response is confusing to me. Obviosly the intent of the deceased was to revoke previous property as a gift to said son and place back into the trust. The typo listed my husbands previous trust with his wife now deceased 5 years and when we married he revoked that trust and renamed the trust in may of 2013 at which time questionable property was gifted to son in trust in june of 2015 my husband amended the trust and revoke that property gift. The scriveners error is on the amendment stating the earlier revoked trust as the actual amended trust instead of the correctly renamed trust, my husbands intent was verbally witnessed by attorney my self and notary, the son was aware of this change but now is lying and trying to capitalize on the scriveners error
Expert:  Dimitry Esquire replied 1 year ago.

Hi,

My apologies on the confusion. I will try to clarify.

You posted:

Thank you for your assistance, however your response is confusing to me. Obviosly the intent of the deceased was to revoke previous property as a gift to said son and place back into the trust.

It is not so obvious. If the language is ambiguous, confusing, or contrary (as this would be, since there is an error as far as the trust), the courts have to figure out whether that type of an error is 'material' and substantial enough to revoke all changes, or 'minor' and would therefore be able to be ignored. I agree that the intent revoke may be potentially clear, but where the funds would go is not so clear, and there a claim arises that perhaps the individual was not competent or able to revoke if he attempted to move the assets into a trust that didn't exist. I am not stating that this is a strong claim, but it is a very legitimate argument by someone challenging the transfer.

The typo listed my husbands previous trust with his wife now deceased 5 years and when we married he revoked that trust and renamed the trust in may of 2013 at which time questionable property was gifted to son in trust in june of 2015 my husband amended the trust and revoke that property gift.

That would explain why the son would challenge. As he is being denied a gift, and here the trust is not listed as valid, in his position the transfer of assets never took place.

The scriveners error is on the amendment stating the earlier revoked trust as the actual amended trust instead of the correctly renamed trust, my husbands intent was verbally witnessed by attorney my self and notary, the son was aware of this change but now is lying and trying to capitalize on the scriveners error

A verbal witness is not enough, usually. Written intent is key and necessary. The witness becomes useful if this is someone 'disinterested' to the process, meaning it is someone who is not slated to profit or inherit from the trust or will in any way.

Sincerely,

Dimitry, Esq.

Expert:  Dimitry Esquire replied 1 year ago.

Hi,

Due to the lateness of the hour I will be logging off to get some rest. Should you have more posts, there will likely be a delay with my response, but I promise to reply when I log back in. Otherwise, if satisfied with my answers, kindly do not forget to positively rate so that I can obtain credit for my work, thank you!

Sincerely,

Dimitry, Esq.