You Should Have a Lawyer Draft Your Will

With the advent of the Internet has come easy access to legal forms for a variety of purposes. Despite the old adage that “A person who represents himself has a fool for a client,” some people believe that they can be their own estate planner. Perhaps they don’t know any lawyers, or are afraid of lawyers, or assume that the job is easy because their estate is simple, or just want to save money by creating their own will using a generic form.

Although it is not impossible for such a homemade will to work out, it’s generally not a good idea. State laws covering wills are similar but not uniform, as are the requirements for making a valid will (witnesses, etc.). A lawyer with estate planning expertise may spot potential problems that the ordinary person might not consider. This website offers more detail on the value that an estate planner delivers for his or her fee.

Here’s a recent court case that demonstrates the failure of a homemade will.

Anne Aldrich wrote her will on an “E-Z Legal Form” on April 5, 2004. Ms. Aldrich carefully inventoried all of her property on the preprinted form, and she left all of her possessions to her sister. She also provided that if the sister died before she did, “I leave all listed [property] to James Michael Aldrich,” her brother. The will was duly signed and witnessed. It was legal and unambiguous. However, it did not contain a “residuary clause” for disposing of any property not specifically mentioned in the will. Ms. Aldrich may not have appreciated the importance of that omission. Had she died soon thereafter, it might not have made any difference.

But as it happened, the sister died first. That’s the sort of contingency estate planners will warn about. Ms. Aldrich inherited a considerable amount of property from the sister. The property so acquired was not, of course, mentioned in her own will. Ms. Aldrich wrote an addendum to her will that acknowledged her sister’s death and said, “I reiterate that all my worldly possessions pass to my brother.” Alas, under local law the note could not be considered a valid will or codicil, because it lacked the signature of a witness.

After Ms. Aldrich died, two nieces challenged her will. They argued that the brother’s inheritance must be limited to the items named in the first will, and that the balance of the estate must pass under the laws of intestacy (the rules that govern inheritance in the absence of a will). The courts, with some regret, sided with the nieces, although they acknowledged that this was almost certainly not Ms. Aldrich’s intention.

The Florida Supreme Court summed up the outcome of the case with these words:   “Obviously, the cost of drafting a will through the use of a pre-printed form is likely substantially lower than the cost of hiring a knowledgeable 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.”

The costs of litigation, and having the estate tied up for years, as well as the possibility of failing to have one’s intentions accurately carried out, make the investment in consulting an estate planning attorney a wise one indeed.

Leave a reply

Your email address will not be published. Required fields are marked *