Recent Florida Probate Case Illustrates Problems with DIY Wills

Recent Florida Probate Case Illustrates Problems with DIY Wills

There's been a lot of talk lately about helping consumers represent themselves in routine legal matters, without (or with limited) need for attorney involvement.  I think this is a good idea for simple matters that members of the public really can handle themselves.  Why force someone to pay an attorney if they don't need one?

But this raises an important question, which has not been fully settled: What sort of legal matters are simple enough for a person to handle without attorney assistance?  One of the most-often mentioned is wills.  Aren't these routine forms that a person can be trusted to fill in themselves?  Or should attorney (or paralegal) assistance be required?

Well ... let's take a look.

In re Estate of Aldrich

In the recent case of In re Estate of Aldrich, the Florida District Court of Appeals (1st DCA) recently had to sort out the mess left behind when Ann Dunn Aldrich took a shot at making her own will using a pre-printed legal form.

The first sentence of the statement of facts reads: "On April 5, 2004, Ms. Aldrich wrote her will on an 'E-Z Legal form.'"  (When a case starts like this, you can expect trouble.)

It turns out that Ms. Aldrich didn't understand the importance of a residuary clause in a Last Will and Testament.  She itemized the assets of her estate and left them to her sister (Mary Jane).  If Mary Jane predeceased Ms. Aldrich, the itemized assets were to go to Mr. Aldrich.  The will left no residuary clause, probably because Ms. Aldrich thought she had listed everything and didn't understand the distinction between specific and residuary bequests.

Mary Jane died a few years after Ms. Aldrich signed her will, leaving Ms. Aldrich with cash and land in Putnam County, Florida.  Ms. Aldrich died a few years later, without having updated her will.

When the case went to probate, two of Ms. Aldrich's nieces popped up, claiming that they had an interest in the cash and land that Ms. Aldrich inherited from Mary Jane.  Since the cash and land were not described in Ms. Aldrich's will, and since the will didn't have a residuary clause, the nieces claimed that those assets should pass through Florida's laws of intestacy.

Mr. Aldrich believed that the assets should have gone to him, for three reasons:

  1. The will only listed Mary Jane and Mr. Aldrich as potential beneficiaries and left them all of the property that Ms. Aldrich owned at the time.  It was not unreasonable to conclude, then, that Ms. Aldrich did not intend for any portion of her property to pass to anyone other than Mary Jane or Mr. Aldrich;
  2. Fla. Stat. § 732.6005(2) provides that a will should be interpreted to pass all property that was owned at death, including property that was acquired after the date the will was signed; and
  3. There is a legal presumption that, when someone makes a will, they intend to dispose of everything that they own.  (Again, this is a reasonable assumption).

Even though Mr. Aldrich was probably right that Ms. Aldrich intended him to get everything, he lost.  The will was very clear on who was to receive specific assets and didn't show any intent to dispose of anything else.  The will's silence with regard to the cash and land that Ms. Aldrich inherited from Mary Jane was not an ambiguity that left room for interpretation.  The mere fact that the will did not contain a residuary clause did not give the court the discretion to revise it.  The court reasoned:

While the will does not dispose of all the property Ann Dunn Aldrich owned at her death, this circumstance is hardly unique to her or her estate and does not contravene any rule of law or public policy.  Nor does the will reflect any mistake on her part ... It does not matter whether or not Ann Dunn Aldrich owned real property in Putnam County or held [cash] at the time she executed her will, or acquired the real property and deposited the cash afterwards.  In either event, the will as written and executed failed to dispose of those unmentioned assets.

Under Florida law, when a will doesn't dispose of all of a decedent's property, the property that is not disposed of passes under Florida's intestacy laws.  Since there was no residuary clause in the will, the court held that Ms. Aldrich's nieces did have an interest in the cash and real estate that Ms. Aldrich inherited from her sister after she executed her will.

A competent attorney wouldn't have let this happen.  The will would have had a residuary clause leaving everything to Mr. Aldrich if that was Ms. Aldrich's intent.  If that wasn't her intent, the will would have stated that any property not disposed of should pass to her heirs at law.  In either event, her intent would have been clear and this mess would have been avoided.

And here's the real kicker:  A simple will like this shouldn't cost more than several hundred dollars. One can only wonder how much of her estate went to legal fees to battle this out in court.

Lessons Learned(?)

So are wills routine legal documents that can be prepared without assistance?  In some cases, yes.  But when things go wrong, they can go really wrong.  As I mentioned in a recent post:

When it comes to reliance on forms without the advice of attorneys  ...  To be honest, sometimes these things work out okay.  But sometimes they don't. We, as attorneys, see what happens when it all hits the fan.

This case is an example of that.  Of course, the person who made the will never knew (she was dead by the time the problem was discovered).  But I'd bet that, had she known what would happen, she would have gladly spent a few hundred dollars to have a proper will drawn up.  It would have been cheap insurance against the risk involved.

View more from Jeramie Fortenberry

About Jeramie Fortenberry

I am an attorney practicing trust and estate law in Mississippi, Alabama, and Florida. I offer free telephonic consultations to clients with questions about probate and estate planning. Get yours today.

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