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6/5/14 It's The Law - Delegating Distribution Right Under Will Can Fail?

It's The Law

Delegating Distribution Right Under Will Can Fail?

(06/05/14)

Question:

My dad died. He wrote his own Will and in it he left everything to my brother for my brother to distribute to my dad's children as he deemed appropriate. My brother tells me he deems it appropriate to cut me out. I think everybody should get an equal share. Am I right?

Answer:

Florida courts are frequently called upon to interpret Wills. Interpretation means determining the testator's intent, which is to be found within the four corners of the Will. Sometimes determining intent is not the end. In other cases, only part of the testator's intent can be determined with clarity, so anything else is swept aside.

In one Florida case, the testator left everything to his friend with the following "having full confidence he will honor all requests made to him by me prior to my death as to friends whom I desire he benefit." The court ruled the Will was valid and that everything was distributed to the testator's friend.

Those challenging the Will argued that the Will was invalid because it required the friend to follow oral directions from the testator and that made the Will an oral Will. Oral Wills are invalid in Florida so the challengers argued the Will should be thrown out.

The court explained that the language in the Will was merely an expression of the testator's hope and not a mandate. If it had been a mandate, as in the 1994 case of Estate of Corbin, the Will would have been invalid. In Estate of Corbin, the Will directed distribution to Betty Guy Sherman "to dispose of as she has been instructed to do by me."

In determining the testator's intent, courts are bound by the language in the Will. If the language is clear, it must be followed, even if the court feels the testator meant something else. The court determines what the testator said, not what the testator meant to say.

The 2013 case of Cody v. Cody is further example of Will construction relying on the content of the document alone. In Cody, the Will left certain assets to Buford Cody "to divide between my heirs, as he sees fit and proper." Buford determined the fit and proper distribution was to distribute all of the assets to himself. His brothers went to court.

The court began by confirming the testator's intent must be determined by language in the Will. It went on to explain that the directive to divide the property "between my heirs as he sees fit and proper" did not require Buford to equally divide the property. That language gave Buford the right to choose distribution.

The Will clearly devised the property to Buford and the right to choose how to divide included the right to choose no division at all. Disagreement by Buford's brothers with his decision did not make the Will ambiguous or render it invalid.

The court noted that the testator could have required all of the brothers to agree on distribution. He did not. The Will specifically provided Buford with power and authority to decide how the property would be divided. If the testator had other plans, he should have reduced them to writing and included them within the four corners of his Will.

These cases emphasize the importance of careful drafting of Wills and Trusts. They also show how relying on someone else to make decisions about distribution after death could end up with a result far different then the testator really wanted. Estate planning should not be left for decision by others after one dies. It should be done in concert with an experienced attorney, careful drafting, review and explanation of all documents.

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.