Probate & Trust Law Section Conference Manual ... - Minnesota CLE

A well-drafted will or trust instrument can make administration simpler for the
beneficiaries as well as easier for the trustee or personal representative. Conversely, a carelessly
drafted instrument can complicate administration, irritate and confuse beneficiaries and be costly
to the drafting attorney. When drafting wills or trusts for clients with large or complex estates,
there can be a host of technical issues that require the great care on the part of the drafter to avoid
tax or other issues in the administration of the estate. It is problems in these situations that most
often lead to reported appellate decisions. Those areas of drafting are beyond the scope of this
outline and here instead we will look at some common drafting problems that can arise in any
document and how they can be avoided.
I. Introduction.
A. What Causes Drafting Issues?
1. Time and Money. Clients seeing their attorney about a will or trust are
willing to pay only so much for their planning. Frequently, the bulk of an
attorney’s time will be devoted to the major tax issues and dispositive
plans for the client. The finer points affecting the administration of a will
or trust that may not come into existence for many years, if at all, do not
draw a great deal of interest from the client.
2. Inexperience. It is not unusual for an attorney to write many wills and
trusts before ever being called on to deal with issues involving the
administration of a trust that she or another attorney drafted. As a result,
the attorney has not considered all of the administration issues potentially
created by the documents she is drafting today.
3. Creativity. There has been a great deal of growth in the popularity of
exotic, or at least novel, planning concepts. The administration of these
concepts is, however, largely untested. Years of administration experience
will undoubtedly lead to refinements in drafting techniques in years to
come.
4. Ease of Reformation. Reformation of documents has generally become
easier over time either through judicial interpretation (see e.g. In re
Schmidt’s Will, 256 Minn. 64, 97 N.W. 2d 441 (1959), In re Estate of
Zagar, 491 N.W. 2d 915 (Minn. App. 1985)) or through statutory changes
to the Uniform Probate Code as codified in Minnesota in Minn. Stat. §
524.2-601 to 524.2-711. While construction or reformation will not solve
all problems, the general climate for addressing drafting problems is much
different today than it was 50 or even 25 years ago.
5. Competence. The advent of the word processor and easy to use drafting
software makes it easy for anyone to draft a will. Individuals using
inexpensive do-it-yourself software can easily create administration
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