Changing the Estate Planning Malpractice Landscape:
Applying the Constructive Trust to Cure Testamentary Mistake
26 Pages Posted: 28 Mar 2011 Last revised: 1 Aug 2011
Date Written: March 24, 2011
A statistical compilation of malpractice claims released by the American Bar Association in 2008 demonstrates that estate planning cases constitute almost 10% of all actions filed. An estate planning client is uniquely vulnerable, as an error in his estate plan will often be undiscovered until it is tested at his death – at which time he is unavailable to correct the error or provide witness as to his intent. As the result of attorney error, the unintended beneficiary is the recipient of a windfall and the intended beneficiary is the victim for whom any recovery is tenuous. This Article examines the legal and practical obstacles that stand in the way of recovery by the intended beneficiary, and suggests the application of a constructive trust as an efficient and equitable means to remedy attorney error, while simultaneously avoiding a timely and costly malpractice action.
Keywords: Constructive Trust, Estate Planning, Malpractice, Probate, Remedies
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