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Posted on May 20th 2011 in Estate Law

Clarity is Everything

Drafting a will on your own can lead to some unintended results. This is what happened in the estate of Margaret G. Margaret had spent her life accumulating an estate worth $300,000. Over the years, Margaret made two wills as well as many subsequent changes to them. While she did use a lawyer at one point, much of what she did, she did on her own. In 1989, Margaret drafted her own will. In 1994, she consulted with a lawyer and had him draft a new will for her. In addition, she made a number of handwritten notes on the 1989 will, some of which post-dated the 1994 will.

She had also made a note on the 1994 will that changed how her estate was to be divided. In 2007, she wrote a note indicating how she wanted to distribute her estate. Faced with these various documents and notes, the estate trustee could not be sure of Margaret’s true intentions, so she was forced to turn to the Court. Generally, a new will revokes a prior will. In this case the 1994 will would supersede the 1989 will. However, because Margaret continued to make changes on the 1989 will even after she had a lawyer prepare a new will, this had the potential effect of reviving the 1989 will. This was the first issue the Court had to contend with. The Court concluded that the 1989 will had not been revived because none of the changes bore her signature. The Court next had to decide whether the 2007 note constituted simple instructions for a future will or whether it was intended to be a new will if no formal document was executed. The Court ultimately decided that it could not be considered a new will because it lacked any formality.

Finally, the Court had to consider the handwritten note on the 1994 will to determine whether it was a codicil. Because the note was written entirely in Margaret’s own hand and she had signed it, the Court found that it did meet the legal requirements of a codicil. This finding had the effect of altering the original bequest which was to a single recipient and instead divided the estate among two beneficiaries. The final item the Court had to determine was who the actual beneficiaries were. Although the two beneficiaries were charities, both charities had undergone several changes, including name and purpose and therefore it was not clear who exactly was to receive the money. The time and cost involved in having the Court make these determinations could have been avoided if Margaret had chosen to use a lawyer to draft her will as well as all subsequent changes.

This case also serves to illustrate the importance of not making changes on the original will. Our firm works in estate planning and we would be happy to assist you to implement your plans in this area.