It’s Just a Simple Will

By Allan B. Cutrow

Often times, people believe their wills (or other estate planning documents) are really simple and straight forward. In fact, this assumption is probably the primary reason that some websites generate significant business selling legal documents prepared by non-lawyers. Such websites seek to create simple documents and offer to purportedly save consumers lots of money.

While there are clearly cases where a non-lawyer can draft a document and have it be an effective instrument, there tend to be more instances in which the “simple” approach leads to documents that lack clarity and fail to consider how facts and circumstances may change over time. When this happens, savings realized in the initial drafting phase are often dwarfed by the time and expenses incurred in post-death efforts to attempt to sort out ambiguities or unanticipated “complications.”

A good example of this is provided by the recent California case of Estate of Duke. In that matter, the decedent’s will provided that his wife would receive his estate, but if he and his wife were to die simultaneously, charities would receive his estate. However, the will failed to set forth any provisions as to what would happen if the decedent lived longer than his wife. The decedent’s wife ended up predeceasing him. Subsequent to the decedent’s death, the charities named in decedent’s will claimed an entitlement to the estate on the basis that the decedent had provided for them if his wife was also deceased at the time of his death. The decedent’s nephews claimed that the will failed, and therefore, under intestacy, they were entitled to receive as the closest heirs of the decedent. The trial court awarded the estate to the nephews on the basis that the will was clear that the charities only took in the event of simultaneous deaths, and therefore, no evidence outside the will could be admitted as to the decedent’s intent for the circumstances in which he was predeceased by his wife. An appellate court confirmed the trial court’s ruling. However, the Supreme Court of California reversed this decision, made a major change in California law (but one that might have been predicted by prior case law), and stated that even if a will was unambiguous, it may be reformed to conform to the decedent’s intent if clear and convincing evidence establishes that the will contains a mistake in the expression of the decedent’s intent at the time the will was drafted and also establishes the decedent’s actual true intent at the time the will was drafted.

In the Estate of Duke, the decedent’s estate ultimately ended up in the hands of the rightful recipients. However, the disposition was only made after significant fees were incurred in the pursuit of an appeal all the way to the Supreme Court of California after a costly trial that the decedent in all likelihood never intended. Sometimes non-lawyers think what they want to accomplish with their estate is simple and clear. However, the failure to consider many factors that might not be apparent to a non-lawyer, or the failure to draft clearly and precisely, can result in a far more expensive estate plan than anticipated. The drafting of an estate plan by a qualified professional with the requisite legal skills can be well worth the expense.

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