What is a Defective Will or Trust?

, ,

Aside from certain legal tax avoidance issues, a “defective” will or trust sometimes is a will or trust document with legal insufficiencies and errors that would otherwise make the content null and void and ultimately un-actionable for the deceased. This could be a result of carelessness and human error, often occurring due to DIY estate planning kits and forms.

One Example of a Defective Will or Trust: California Holographic Will

A holographic will is a type of “informal” will that someone can write themselves. However, holographic wills are not always legal.

A holographic will doesn’t follow the specific requirements under the California Probate Code. The reason being is the holographic will often seeks to replace the original will, typically utilized as a sort of “fast track” toward changes that may or may not benefit certain beneficiaries.

Oftentimes many would say that a holographic will was a result of undue influence or lack of capacity, hence why they can be considered “defective.” It may also involve fraud.

Such incidents occur very regularly with large estates and hefty assets awarded to beneficiaries, so other parties might be able to modify the wording in wills that would benefit them the most. However, presenting evidence of a potential defective will or trust causes the process to halt and an investigation to be pursued in the effort of truth and the goal of honoring the wishes of the deceased based on the will or trust written.

However, the “Harmless Error Rule” Goes Into Affect If There Is No Apparent Wrongdoing at All

It doesn’t change the fact that the will or trust is defective—but it does ensure no one is necessarily to blame. For the “harmless error rule” to go into effect, small mistakes potentially are allowed in a court of law due to technicalities or missteps in procedure that would constitute, simply put, an accident or even a slip of the wrist in developing the content. A court may surmise that the will or trust is defective, but it doesn’t mean they won’t or can’t allow the document to be processed.

These types of defective wills and trusts are considered ‘harmless’. There was no wrongdoing. It could be something as simple as a misspelled name or a missing sentence, but courts determine the severity standard in any case appropriately.

Whatever the Case, Beneficiaries Have a Way to Find Recourse in the Event of a Defective Will or Trust

The dismay of a will or trust not going into effect simply because of an erroneous item in the document can seem tumultuous, but there are options to fix the situation. Simply consult a qualified probate litigation lawyer, such as Charles Triay, attorney at law. For over 30 years, Mr. Triay has been practicing the niche of probate law and estate planning law to California residents. Make sure you find an attorney with experience in defective will and trust disputes.

Written on behalf of Charles Triay for AskTheLawyers.com™.