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“DIY” Will Does Not Suffice (Aldrich v. Basile)

The Florida Supreme Court, in Aldrich v. Basile, 136 So. 3d 530 (Fla. 2014), has ruled on yet another situation in which a “do-it-yourself” will did not suffice.

1. Facts of Case.

In 2004, Decedent wrote her will on an “E-Z Legal Form.”  She hand wrote instructions directing that all certain listed possessions go to her sister (“Sister”).  If Sister predeceased her, however, she left “all listed” to her brother (“Brother”).  The will contained no other distributive provisions, and was signed and witnessed.   Decedent survived Sister, who died in 2007,  and who left cash and real estate to Decedent.  In 2008, Decedent attempted to draft a codicil to her will.  This attempted codicil was a piece of paper, titled “Just a Note” and dated November 18, 2008, that accompanied the will.  The attempted codicil was not properly witnessed and therefore was not enforceable (see 732.502(1)(b) and 732.502(5), Florida Statutes (2004)).  In 2009, Decedent died.

2. Issue.

To make matters simple, at issue was whether the property that Decedent inherited from Sister would pass to Brother via the will or whether the property would pass via intestacy.

3. Rule.

Section 732.6005, Florida Statutes (2004), provides that:

(1)  The intention of the testator as expressed in the will controls the legal effect of the testator’s dispositions. The rules of construction expressed in this part shall apply unless a contrary intention is indicated by the will.

(2)  Subject to the foregoing, a will is construed to pass all property which the testator owns at death, including property acquired after the execution of the will.

 

Section 732.101(1), Florida Statutes (2004), provides that “Any part of the estate of a decedent not effectively disposed of by will passes to the decedent’s heirs as prescribed in the following sections of this code.”

4. Application.

The Court reasoned that because the legislature did not limit the application of the intestacy statute (Section 732.101(1))for estates containing after-acquired property, the legislature apparently intended for after-acquired property to also be subject to the intestacy statute in the event that it is “not effectively disposed of by will.”  It mentioned that the intention of a testator is the controlling factor in construing a will.  This intention should be gleaned from the four corners of the will unless the language employed by the testator is ambiguous.  Further, the testator’s intention as expressed in the will, not that which she may have had in her mind when the will was executed, controls.  The Court maintained that the language of Decedent’s will was clear that she intended to leave all the property listed in the will to Brother.  Nevertheless, Decedent expressed no intent as to any property that she may acquired after the execution of the will, as the will did not include a residuary clause or include any general bequests that could encompass the inherited property.  Further, Decedent did not explicitly state in the will that Brother was to receive all of the property she owned at death.  Instead, she explicitly stated only that Brother was to receive the property listed in the will.  If Decedent intended to devise to Brother all of the property Decedent owned at death, her intent would have been better served through the use of a residuary clause or general devises in the will.  In addition, although Brother was the sole devisee under the will, without a residuary clause or general devises, only property specifically referenced passes to him under the will.

5. Conclusion.

The court held that the after-acquired property passed via intestacy.

6. Justice Pariente’s Concurrence: Commentary on “Do-It-Yourself” Wills.

Justice Pariente, in her concurring opinion, opined that although the majority ruling is the correct result under law, it does not effectuate Decedent’s true intent.  She states that the Court was unable to legally consider Decedent’s attempted codicil, which demonstrates Decedent’s true intent to pass all her possessions to Brother.  Justice Pariente emphasized that this unfortunate result stems not from the Court’s interpretation of law, but from Decedent’s use of a commercially available form that did not adequately address her specific needs and her apparent failure to obtain legal assistance.  She then offered the following:

“While I appreciate that there are many individuals in this state who might have difficulty affording a lawyer, this case does remind me of the old adage ‘penny-wise and pound-foolish.’  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.  In a case such as this, which involved a substantial sum of money, the time, effort, and expense of extensive litigation undertaken in order to prove a testator’s true intent after the testator’s death can necessitate the expenditure of much more substantial amounts in attorney’s fees than was avoided during the testator’s life by the use of a pre-printed form.

I therefore take this opportunity 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.”

 

See also Blenkenship, Gary, “The Case of the Not-So-Simple Will,” The Florida Bar News, June 1, 2014.

Want to further discuss these issues?  Contact me at 954-944-3929 or nrumbak@rumbaklaw.com.

*This document contains legal information, but does not contain legal advice.

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