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Do-It-Yourself Will Can Be Dangerous

It’s The Law

Do-It-Yourself Will Can Be Dangerous

(04/24/14)

Question:

My dad says he used some forms he got from the internet for his estate planning documents. I am afraid he will goof them up. What are your thoughts?

Answer:

Estate Planning is more than merely filling out a form. Although attorneys use a lot of boiler plate provisions, estate planning attorneys ask questions that clients may not have thought about and make sure the documents they draft carry out the client’s intent. That often requires drafting for contingencies that the client did not think of.

More importantly, a good estate planning attorney will make sure that all “bases” are covered. If not covered, the plan will fail. On March 27, 2014, Florida’s Supreme Court confirmed the failure of a decedent’s do-it-yourself will in the case of Aldrich v. Basile, et al. The facts of that case as recited by the court are a warning to those using do-it-yourself forms.

On April 4, 2004, Ms. Aldrich wrote her will on an “E-Z Legal Form.” In Article III, entitled “Bequests,” just after the form’s pre-printed language “direct[ing] that after payment of all my just debts, my property be bequeathed in the manner following,” she hand wrote instructions that the following “possessions listed” go to her sister, Mary Jane Eaton:

House, contents, lot in Keystone Heights, Florida

Fidelity IRA

United Defense Life Insurance

Automobile Chevy Tracker

All bank accounts at M & S Bank

Ms. Aldrich also wrote “If Mary Jane Eaton dies before I do, I leave all listed to James Michael Aldrich.”

Three years later, Ms. Eaton died and, as the court noted, became Ms. Aldrich’s “benefactor instead of her beneficiary.” Ms. Eaton left cash and land in Putnam County to Ms. Aldrich. Ms. Aldrich deposited the cash in a new account opened with Fidelity Investments. A few years later Ms. Aldrich died. After being appointed personal representative of Ms. Aldrich’s estate, Mr. Aldrich asked the court to determine who would inherit the land and cash she acquired after the execution of her will. Ms. Aldrich’s nieces from a predeceased brother, asserted in interest in the probate action and the battle was on.

Mr. Aldrich argued section 732.6005 of Florida Statutes provides a will shall be construed to pass all property that the testator owned at death; that the will only named Ms. Aldrich’s predeceased sister and Mr. Aldrich as beneficiaries; and that Florida has a legal presumption against will construction resulting in partial intestacy.

The nieces argued that the will lacked a general devise or what is commonly known as a residuary clause. A residuary clause directs distribution of any assets not specifically listed and could read something like “I direct that all of the rest of my property and assets be distributed as follows…” Since the will did not address the Fidelity Investments account or the real property in Putnam County and because it had not residuary clause, the nieces argued those assets passed by intestate succession in accordance with Florida Statutes directing who receives distribution if the decedent did not have a will.

Florida’s Supreme Court ruled that section 732.6005 was pertinent, but not for the reason suggested by Mr. Aldrich. The court noted the statutory language included “the intention of the testator as expressed in the will controls the legal effect of the testator’s dispositions.” Since there was no intent expressed for the Fidelity Investments account or Putnam County property, those assets would pass by intestacy under Sections 732.101-103 of Florida Statutes.

That part of the court’s decision, standing alone, ought to be chilling to anyone considering do-it-yourself estate planning. But, additional facts should add to that concern. It seems that between the time Ms. Aldrich inherited the cash and Putnam County property, she attempted to draft a codicil to her original will. Found with the original will was a piece of paper bearing the title “Just a Note” dated and signed by Ms. Aldrich. The note included the following:

This is an addendum to my will…I reiterate that all my worldly possessions pass to my brother James Michael Aldrich…

A codicil must be executed with the same formalities as a will. In Florida, those formalities include two signing witnesses. Ms. Aldrich’s codicil had only one witness signature. That meant the attempted codicil was not an enforceable testamentary instrument. Worse for Mr. Aldrich, the court ruled because it was not part of a valid will, it would not be used to determine the decedent’s intent. Only the contents of a valid will or codicil can be used for that purpose under the statute.

The Aldrich case emphasizes the importance of good professional advice when drafting legal documents. Although estate planning forms may be available from a variety of sources, use of those forms may prove to be penny wise but very pound foolish. Urge your father to retain an attorney.

By: William G. Morris, Esquire

William G. Morris is an attorney with offices at 247 North Collier Boulevard on Marco Island, Florida. His practice covers a broad range of subjects, including civil litigation, real estate, business and corporate law, estate planning and probate, domestic relations and contracts. He writes this column periodically with respect to legal matters that frequently affect non-lawyers. The information contained in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney.

Questions for this column can be sent to: William G. Morris, e-mail: wgmorrislaw@embarqmail.com or by fax, (239) 642-0722 or

The Marco Island Eagle

Other articles of interest can be viewed at our website, www.wgmorrislaw.com.

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