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Avoid Trust Disputes: Common Problems in Living Trust Draftsmanship

On Behalf of | Jan 23, 2019 | Trust Disputes

Buffington Law Firm’s Trust dispute attorneys have more than two decades of experience in living trust litigation.  As many people know, revocable or “living” trusts have become extremely popular in California and have to a significant degree replaced wills as the preferred means of transferring family wealth to the next generation.  As most people know, trusts are designed to “avoid probate.”  Put simply, this means that one or more successor trustees of a trust are responsible for interpreting the trust and implementing its written instructions without supervision by a court.  This contrasts with a probate of a will whereby a probate court supervises the implementation of the will.

Many trusts are well-designed and work well.  A significan number do not.  Sometimes the reason for problems lies with the way the trust is drafted.  In this article we will discuss some of the common drafting issues and errors that lead to a trust dispute and litigation.  For each of these examples Buffington Law Firm’s trust dispute attorneys have handled at least two actual cases all the way to trial (and usually more than two).

1.  Not Having the Trustors (the trustmakers) initial or sign each page.  This is not required by California law.  However, Buffington Law Firm has dealt with several cases whereby there weretwo versions of a trust floating around where internal pages are different. The implication is that someone created a bogus page (such as the page naming the beneficiaries) changing an important trust provision.  This type of problem could largely be prevented by the simple expedient of having the Trustors initial or sign each page of the Trust. 

2.  Excessive Precatory Language Blather.  Many trusts that Buffington Law Firm is asked to examine contain considerable language about what the Trustors “hope” or “prefer” will happen with respect to the Trust.  This is called “precatory language.”  This is usually a bad idea and offers fertile ground for litigation.  What happens is that one side or the other argues that these preferences are somehow “mandatory” with respect to what the Trustees may or must do.  Avoid this blather.  Beneficiaries usually know the Trustors and what their preferences were.  Drafting attorneys should avoid cluttering trust documents in this fashion.  A trust is akin to a contract — you don’t see people putting in such rubbish in other kinds of contracts.

3.  “May” versus “Shall” in Careless Drafting.  Many trust drafting attorneys are careless with the words “may” versus “shall” and use the word “may” when they plainly intend for a provision to be mandatory i.e. a “shall.”  We see this error again and again.  It can easily lead to expensive and avoidable litigation.

4.  Careless Section Numbering or No Section Numbering.  Trusts that lack section numbering or have careless section numbering can lead to a whole host of problems.  Often leading to expensive litigation.  

5.  Plain old Obtuse Drafting.  Attorneys who draft trusts should be mindful that almost always the successor-trustees are not lawyers.  Two of the most common obtuse drafting problems are trusts that make it difficult to find who the beneficiaries are, and who the successor-trustees are.  This is usually the foremost and most important thing that readers of a trust need to know once the trustors have passed away.  Trusts should have these designations (who the beneficiaries are, what each one is to get, and who the successor-trustee or trustees are) in a discrete plainly labeled section in plain non-legalese.  These provisions should not be buried in tedious legalese, but many trusts do that.

This is far from a complete list, but we hope that someone benefits from this brief article.  If you have a trust dispute, we invite you to call us for a free legal consultation.  All calls are confidential and protected by the attorney-client privilege, and there is never any charge or obligtion.