APRIL 20, 1998 VOLUME 5, NUMBER 42
Although most people believe that it is important to sign a will to provide for the distribution of their estates upon death, most never get around to doing so. Even among those who do prepare wills, often the original document is missing. In most states a missing will is presumed to have been destroyed by the decedent, thereby revoking the terms of the will. To make it easier to find original documents, some lawyers routinely have clients sign two or three wills at the same time, making each one an original document.
In Arkansas, William Y. Laneer's lawyer did just that. He had Mr. Laneer sign three original wills and kept one of the three in his own file. The wills were signed in 1973, and when Mr. Laneer died in 1996 there was no evidence he had signed a new will. However, both of the original wills which had been given to him were missing (only a photocopy could be located).
When Mr. Laneer signed his 1973 will, he had been engaged in a family quarrel with his only son, William R. Laneer. Accordingly, his will left William R. the sum of $1.00, a common, if old-fashioned, method of disinheriting an heir. His entire estate was to be divided among his four daughters.
One of those daughters objected. Saying that Mr. Laneer had changed his mind after 1973, she argued that he intended to treat all five children equally. She pointed to the fact that, shortly after making the wills, Mr. Laneer had made $5,000 gifts to each of his children, including William R.
Interestingly, the daughter who argued that the will was invalid acted against her own self-interest. She would take one-fourth of the estate if the will was valid, but only one-fifth if her brother was treated equally. Because of that, argued one of the other sisters, she had no standing to contest the validity of the will--in order to object, argued the second sister, she would have to receive some benefit from a successful contest.
The Arkansas trial court decided that any one of Mr. Laneer's three original wills would be eligible to be probated. Even though both of the originals which had been given to him were missing, the presumption that he had revoked them did not apply to revoke the third original, which was still in his lawyer's files.
On consideration of the case, the Arkansas Court of Appeals first had to deal with the question of standing. They determined that the sister could challenge the will, notwithstanding the fact that she would receive more from the estate if the will were valid. Any "interested person," including an heir or a devisee, may contest the validity of a will.
The appellate court agreed with the trial court's holding. Noting that Mr. Laneer could have made his wishes clear by signing a new will sometime in the intervening 23 years, the justices permitted the will disinheriting William R. to control the disposition of Mr. Laneer's estate.
Arizona law is similar to Arkansas law on each of the points raised by Mr. Laneer's will. In Arizona, an "interested person" may include almost anyone who claims to be interested in the outcome of a probate proceeding. Arizona law, like Arkansas' law, also provides that a missing will raises a presumption that the decedent destroyed the will during life (thereby revoking it).
Lawyers approach the problem of maintaining wills in different ways. A few, like Mr. Laneer's lawyer, prepare multiple original documents. Others may retain the original in the lawyer's files and provide only copies to the client. Most deliver the original to the client (retaining a copy) and put the burden on the client to maintain the document in a safe and accessible place. Lawyers almost always recommend periodic review of wills and trusts. Twenty years is a long time to keep track of original documents--and intentions.