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

2. Possible Ramifications.
It is often difficult as an estate planning attorney to know whether the
documents you draft will be challenged. Indeed, there is typically not a dispute
over language and the intent of a testator until after one is deceased.
This case is illustrative of the need to formalize your client’s intentions, to the
extent possible, in writing. This was a difficult case in that the deposition
testimony of the attorney drafting the document indicated that the document
was clear, but that it was difficult to know whether Polly intended that only
loans or mortgages be deducted, or that all unequal transfers be included. She
also acknowledged that, if only written loans were to be considered
advancements, there was no need in include the equalization language
expressing Polly’s intent that her children be treated “essentially equally as to
advancements and loans received during my lifetime or assets of my estate
received at my death.” She also acknowledged that, if only written loans were to
be deducted, it would not have been necessary to include the term
“advancement” at all. Thus, it appeared as though while the document was
clear, the decedent’s intent may not have been clear.
It is always easier to second-guess an attorney’s drafting after a client is
deceased. To save litigation costs and time, to the extent possible, we need to
be as clear in our drafting and documenting our conversations with clients as
possible. In this case, after payment of attorney fees to litigate the case and
trustee fees, both John and Lawrence will ultimately receive approximately
$200,000.00 as inheritance from their mother’s $1.3 million estate.
C. Practical Advice --Factors to Consider When Advising Clients on
Lifetime Gifts, Transfers and/or Loans in light of Shank
Mary Frances M. Price, J.D.
EDINA ESTATE AND ELDER LAW P.A.
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