What Is Wrong With A Do It Yourself Will?
The perils of do it yourself wills are well known to probate attorneys. In Aldrich v. Basile (Fla. 2014), the Florida Supreme Court was required to untangle a botched homemade estate plan.
Ms Aldrich prepared a will in 2004 using an “E-Z Legal Form.” In the bequests section of the will, she specifically listed each of her various possessions going to her sister, Mary Jane, including her house, a rollover IRA, life insurance, and certain specified bank accounts. The do it yourself will also states that, should Mary Jane pass away before her, that the items listed should go to James Michael Aldrich, her brother.
Mary Jane passed before Ms. Aldrich. Mary Jane left her estate to Ms. Aldrich. Accordingly, Ms. Aldrich ended up owning significantly more assets above and beyond what she owned when she made her will. Ms Aldrich received from her deceased sister, Mary Jane, land and cash, which she deposited into a new account with Fidelity. Ms. Aldrich then passed away, without having revised her will to account for the new land and the Fidelity account.
Probate litigation commenced between the Deceased’s brother, James Michael Aldrich, and the remainder of her intestate heirs, some nieces. The brother claimed that the newly acquired property should go to him because the estate plan was clear enough that he was to be the sole heir. The other intestate heirs contended that, in the absence of a residuary clause and the absence of the will being revised to bequeath the newly acquired property, the new assets should pass via the laws of intestacy, in which they would participate. To learn more about Florida intestacy laws when there is no valid will, click here.
No Residuary Clause = Intestacy
The do it yourself will as drafted by Ms. Aldrich lacked a residuary clause. In a typical estate plan, the will might bequeath certain items to specified people, such as “I hereby leave my sailboat to my nephew Billy Bob.” A typical will would then contain a residuary clause, such as “I leave the rest, remainder and residue of my estate equally to my nephew Billy Bob and my best friend Jill.” Unfortunately, Ms. Aldrich’s will did not contain such a residuary clause. The court noted that the EZ Will form did not even have room on the form for such a clause.
The Florida Supreme Court summarized the parties’ arguments and its conclusion as follows:
It is clear from the language of Ms. Aldrich’s will that she intended to leave all of the property listed to her brother, Mr. Aldrich, in the event her sister, Ms. Easton, predeceased her. Ms. Aldrich expressed no intent as to any property that she may have acquired after the execution of her will, as the document did not include a residuary clause, nor did it include any general bequests that could encompass the inherited property. Mr. Aldrich is asking this court to infer from the four corners of the will that the testator intended to devise all of her property to the sole person mentioned in the will, including the inherited property which was not mentioned in the will, based on the assertion that the testator did not intend to die intestate as to any of her property. This conclusion is simply not supported by the four corners of the document.
A Will is Interpreted As Written, Not What Might Have Been Intended
The brother attempted to offer some evidence of Ms. Aldrich’s true intention, with reference to a handwritten note and a consultation with an attorney shortly before death wherein Ms. Aldrich was going to change her do it yourself will in favor of a new will that named her brother as the sole heir.
The Florida Supreme Court rejected all of this evidence.
In construing a will, this court determines a testator’s intent by looking to the language of the will unless the face of the will contains ambiguous language, contradictory provisions or a mistake. The will in the instant case does not result in a contradiction or ambiguous language. It is only upon the entertaining of extrinsic evidence that the testator’s true intent is debatable. Without the use of extrinsic evidence the testator’s will is clear as to its meaning and needs no interpretation in order to be implemented. The will did not have a residuary clause or any general devises which could be interpreted as disposing of any of the inherited property. This court cannot infer from the four corners of the will, without adding words to the document, that in making provision for the property she owned on that day that she also intended to make provision for any property that she stood to gain in the future.
There must be a clause in a will that alludes to the after acquired property in order to avoid distribution of that property through the intestacy statute. Although Mr. Aldrich was the sole devisee under the will, without a residuary clause or general devises, only the property specifically referenced passes to him under the will. A will shall be construed to pass all property that the testator owns at death, including property acquired after the execution of the will, subject to the language of the will regarding that property, not despite the language of the will which makes no mention of that property.
Justice Pariente, in her concurring opinion, sets forth her personal views on do it yourself wills and estate planning:
While I appreciate that there are many individuals in this state who might have difficulty affording a lawyer, this case does remind me of the old adage penny wise and pound foolish. Obviously, the cost of drafting a will through the use of a pre printed from is likely substantially lower than the cost of hiring a knowledgable lawyer. However, as illustrated by this case, the ultimate cost of utilizing such a form to draft one’s will has the potential to far surpass the cost of hiring a lawyer at the outset. In a case such as this, which involved a substantial sum of money, the time, effort, and expense of extensive litigation undertaken in order to prove a testator’s true intent after the testator’s death can necessitate the expenditure of much more substantial amounts in attorney’s fees than was avoided during the testator’s life by the use of a pre-printed form.
The clear takeaway from this case is that do it yourself wills, while cheap, are much more likely to fail to carry out your true intentions for the disposition of your assets, and can lead to years of protracted litigation between your heirs.