Spring 2019 Catherine Cunningham | The Florida Law Group

Essay prompt: Why correcting the legislative drafting mistake, also known as “Scrivener’s Error” is a difficult process? How would you change Scrivener’s Error to more of a streamlined process? Would you propose statues or laws to identify the error(s) in order to reduce misinterpretation? Provide previous evidence showcasing the strict processes of correcting these so-called errors.

Winner of Spring 2019 Essay Contest: Catherine Cunningham

Martin Luther King’s quote, “Injustice anywhere is a threat to justice everywhere”, resonates for me when representing underserved, marginalized abuse victims in our criminal justice system, social worker/court investigator for abused children (foster care) and their families, nearly always involves drug, alcohol abuse and addictive behaviors, negatively impacting their families, our community. Child abuse/domestic violence continues to be most pressing societal problem we face today. Healthcare professionals have been an intracule part of our American justice system.

My successful clinical career abruptly ended by very serious injuries caused in a vehicle roll-over crash 2005. I worked diligently to overcome my numerous injuries, to better understand adversity, hardship and social judicial inequity, melding my healthcare past with law. Therefore, as a permanently disabled senior (wheelchair), my acceptance to the SB/Ventura Colleges of Law (4475 Market St., Ventura CA 93030), a very significant achievement after my accident. Qualifying for both need (residing in public housing, food stamps) and merit (GPA 3.5, official transcripts on file at law school) scholarships, enabling my first-year law education to continue, as “Life’s a bitch. You’ve got to go out and kick ass” (Maya Angelou). As a first semester law student, I knew little about Trust issues nor Scriver’s Error until this essay, thanks. After research and readings, it appears that simply identifying and forewarning future Estate Planning Attorneys in education and practice, to avert or correct potential errors in drafting their original Trust instrument, that they must accurately depict the true intentions of the original Grantor/s. The Courts depend on the original Grantor/s intentions to later correct or reform that Trust, predicated “That it had always been the Grantor’s intention…”, shown in declarations made by the original Grantor/s that “… drafting attorney to the court, that the trust escape estate taxation. And the court reformation was necessary to correct Scrivener’s Error to reflect the true intentions of Grantor… that the reformation would be effective as of the date of the creation of the trust…” (Irrevocable life insurance trust reformed to avoid adverse estate and generation-skipping tax consequences §1.115, S. IRS Letter Ruling 201723002 (January 23, 2017)) would streamline such reform. The Attorney’s chosen words “deceased” or “surviving” in Trust were later removed to accurately restore the Grantor/s genuine intentions, when one of the daughters was deceased, yet her children survived, then sought to correct this error, arguably retained in the instrument (IRC §2036(a)(2)) as a power in the Grantor/s control for “…the use and enjoyment of their property…”, the court granted reform to with the Grantor/s true intentions, thereby correcting Trust distributions to more accurately reflect those intentions, avoidance of words to streamline the correcting or preventing Scrivener’s Error. Court reformation could not cause the trust to have any adverse GST tax liability, as such reformation would not result in any gift tax liability to the beneficiaries and would not result in any estate tax liability to the beneficiaries, therefore, the IRS held that the court reformation would have no adverse tax consequences and found that the reformation of the trust was consistent with applicable state law that would be applied in the highest court of the state. As a result, the proposed reformation would not cause the trust to lose its GST exempt status (section 2601) or result in any GST tax liability to any beneficiary of the trust (Treas Reg §26.2601-1(b)(4)(i)(C)). “Scrivener’s Error” has changed court processes, to avert or reduce legal misinterpretation in Trust drafting by avoiding specific words and clarify the Grantor/s original intentions (§1.117, U. IRS Letter Ruling 201732029 (April 20, 2017)), judicial construction of the governing Trust instrument “…will not cause an exempt trust to be subject to GST tax if the judicial action involves a bona fide issue and the construction is consistent with applicable state law…”. Being new to these complex legal issues, I am unprepared to suggest statutes or laws in correcting or streamlining court processes. However, it appears to me currently, that averting errors, including “Scrivener’s Error” prior to constructing the initial Trust instrument would be beneficial to the descendants therefrom and specific legal wording to avoid disputes later.

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