September 18, 2013 – In 2011, a new statute was passed that allows a will/trust, to be changed “even if unambiguous” so as to conform to the intention of the deceased if its shown a “mistake of fact or law” occurred. Changing a will or trust after someone dies may at first sound sinister or grounds for creating serious disputes. It is when misapplied! Fortunately, the statute requires that the mistake be proven by “clear, cogent, and convincing evidence.” What in the world does that mean? Well, it means it has to be evidence that is highly probable. It’s not the same level necessary to prove guilt in a criminal matter- “beyond a reasonable doubt”- but it’s the kind of evidence that is getting close to that standard. Recently, I tried a case in which this statute may have been addressed by our courts for the first time. Mom signed a will a few days before her death in 2012 leaving her estate equally to her children. After her death, one of the sons found a Will from 1998 that excluded one of her children who was included in the 2012 will. The son filed suit and alleged that his mom must have made a mistake because she forgot to exclude the brother, my client, from the new will like she did in the 1998 will. The court disagreed and ruled entirely in favor of my client. The court found that what mom may have wanted in 2012, could easily be different than what she wanted in 1998. Thus, a mistake was not proven. The lesson learned for me is that the mistake must be something more than simply a change in heart. In addition, the time period to look for a mistake is at the time the will is signed. Samples that might work in my mind- an attorney includes or excludes a provision that wasn’t discovered when the will was signed; a person incorrectly lists an account number or misidentifies a property; a sophisticated trust is created under a mistaken belief that without it a significant legal/tax consequence will result, which turns out to be untrue. In each case, we’d expect testimony and documents from lawyers, unbiased witnesses, real estate records, or similar proof that does not require one to try and guess what someone was thinking when they signed their will or trust. Whether or not I’m correct in my thinking will ultimately be determined by our courts. This statute is well intentioned and could be very useful in the right situation. However, as my client learned, it could also lead to litigation and require the assistance of our courts to resolve. If someone discovers a Will provision that they think may be in error, we now have the statutory authority to determine if it’s an error that can be appropriately corrected.