THE CASE OF THE NOT-SO-SIMPLE WILL By Gary Blenkenship Senior Editor
A woman who used a commercial will instead of hiring an attorney apparently thwarted her intent on disposing of some of her property and sparked litigation that cost many times what she saved by using the generic form. Those were the conclusions of Justice Barbara Pariente in a concurring opinion in a recent Supreme Court ruling deciding how part of the woman’s estate would be disposed. The Woman, Ann Aldrich, had written her will on “E-Z Legal Form,” which was properly witnessed and executed in 2004. In it, she specified that her property was to be left to her sister, and if her sister died first, then her property would go to her brother. The sister did die first, and left property and money to Aldrich. The legal form had not contained any general devises or a residuary clauses[sic] to cover how that inheritance should be handled, although Aldrich at one point attached a signed note to the form indicating her brother should get the property, with some funds to go to a niece who would be a personal representative. “Although Ms. Aldrich signed the ‘addendum,’ the signature of Sheila Schuh, Mr. Aldrich’s daughter, was the only other signature that appeared on the face of the document; therefore, the documents[sic] was not an enforceable testamentary instrument under the Florida Probate Code,” according to Justice Peggy Quince, who wrote the court’s majority opinion. When Aldrich died, her brother, under the terms of the legal form, became personal representative and filed an action saying he should get the entire estate, including the inheritance, from the sister. But two nieces contended, because the form will did not mention or make allowances for the inheritance, that part of the estate should be determined by Florida intestacy laws. “A similar view is expressed in an amicus brief filed by the Real Property, Probate and Trust Law Section of The Florida Bar, which found no general bequest in the will that would indicate the testator’s intent for the after-acquired property to pass under the will,” Quince wrote. She agreed with the First District Court of Appeal’s reasoning that, under Florida law, if the will did not make specific mention of how to dispose of the later acquired property, then state law governs how it will be handled and that provides that the nieces get the inherited property. “The testator’s intention as expressed in the will controls, not that which she may have had in her mind,” Quince wrote.”…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 that she stood to gain in the future.” Although Pariente (along with Justices Charles Canady, Jorge Labarga, and James Perry) concurred, she also wrote a separate opinion to underscore what she saw as problems from using the simple will form. Chief Justice Ricky Polston and Justice Fred Lewis concurred in the result only. In her opinion, Pariente noted the simple will was undoubtedly intended to save money, but instead wound up in costly litigation. “This form, which is in the record, did not have space to include a residuary clause or pre-printed language that would allow a testator to elect to use such a clause,” Pariente wrote. She added the case serves “to highlight a cautionary tale of the potential dangers of utilizing pre-printed forms and drafting a will without legal assistance. As this case illustrates, that decision can ultimately result in the frustration of the testator’s intent, in addition to the payment of extensive attorney’s fees-the precise results the testator sought to avoid in the first place. “This unfortunate result stems not from this court’s interpretation of Florida’s probate law, but from the fact that Ms. Aldrich wrote her will using a commercially available form…which did not adequately address her specific needs-apparently without obtaining any legal assistance.” The court’s ruling came March 27 in James Michael Aldrich v. Laurie Basile, et al., case no. SC11-2147.
*re-typed from original and includes original scriveners errors. 6-The Florida Bar News/June 1, 2014
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