DIY Wills — Another Example Showing Why You Should Hire a Lawyer

OCTOBER 6, 2014 VOLUME 21 NUMBER 36

We occasionally relate stories about people who have prepared their own wills without the help of competent professional advisers (like, for a primary example, a qualified attorney). When we do, we intend to make several points:

  1. The cost of getting a lawyer to prepare your will (and trust, and powers of attorney) is probably quite a bit less than the contest after your death might cost. Of course, disgruntled heirs can file contests of lawyer-prepared wills, too — but the odds are lower, the likelihood of success much lower, and the family friction lessened when a lawyer is involved in preparing the will.
  2. Do-it-yourself wills might accomplish exactly what the signer intended, but it’s often hard to tell — the likelihood of ambiguity or miscommunication is much higher when no professional is involved.
  3. Even though a self-prepared will might ultimately be successful, it can take years, costs tens of thousands of dollars (occasionally more) and destroy family relationships — all bad results that you can mitigate by getting your estate plan prepared by someone who knows what she or he is doing.

All of this should be considered against a reality: will contests are rare. They are much rarer, in fact, than people usually suspect. Despite popular literature, even wills that are arguably defective are more likely to be honored than challenged.

That is all by way of background to this week’s story. We are going to ask you to play Probate Judge, so pay attention. Let’s start, as the Judge often does, with the document itself. Here is the entire text of Bruce Morrison’s will (we’ve changed only the names):

On this date 7-18-2011 – I am here with my neighbor of over 30 years – [Bruce Morrison] – I am here to write down his last “will” – He is in good spirits, alert and sound of mind. On this date Bruce has asked me to write down the desires he has in regards to his earthly possessions. “I Bruce Morrison do will all my earthly possessions to my daughter Betty Harrison that lives in California, she can do with them what she likes.”

[signed] Toni Robertson 7/18/2011

[signed] Richard Robertson 7/18/2011

[signed] Bruce Morrison 7/18/2011

Bruce died two months later. He left two daughters — Betty (the daughter mentioned in the will) and Randi (who is not mentioned at all). Randi filed a probate petition for a determination of intestacy — arguing that Bruce died without a valid will. Betty countered that his will was valid, that she had been left his entire estate, and that Randi should receive nothing.

As the will contest developed, a number of additional facts were laid out:

  1. The night the will was signed, Bruce had just been released from the hospital after a series of tests. At the time he signed he may not have known it yet, but he was terminally ill with (as yet) undiagnosed cancer. He had been prescribed — and was taking — the painkiller hydrocodone, which can also affect competence, attention and understanding.
  2. Bruce’s hand was shaking too much to write out the will himself. He asked his friend Toni to write out the will for him, and she later testified that he dictated the part that begins “I Bruce Morrison do will…”. The entire document, however, is in her handwriting, not his.
  3. The sequence of signatures was that Bruce signed first, then Toni. Then Toni suggested that her husband should also witness the will — he had been in another room during the writing and signing. Richard came into the room with Bruce and Toni, and asked “So, Toni wrote your will; did she sign it too?” Bruce responded “no, that’s my shaky handwriting.” Richard then signed above Bruce’s signature, next to his wife’s.
  4. Although both Randi and Betty agreed that Betty was indeed Bruce’s daughter, he was not listed as her father on Betty’s birth certificate.

Both Randi and Betty asked the Montana probate judge hearing the case to grant summary judgment on the basis of the evidence they had collected. In such a ruling, no actual trial is conducted — the parties simply argue that there is no interpretation of the available evidence under which the other side could prevail.

Betty argued that the will was properly executed and reflected Bruce’s wishes. She pointed out that she was not involved in its execution, and that there was no real dispute about Bruce being her father.

Randi, on the other hand, pointed out that Bruce was taking heavy medications that would make him susceptible to undue influence. The fact that he had not been listed on Betty’s birth certificate made it unclear who would be “the natural objects of his bounty,” according to Randi. She also argued that the fact that Bruce signed when one of his witnesses was out of the room made the will invalid — and that his statement (“no, that’s my shaky handwriting”) should not be admitted to prove the validity of the will because it would be hearsay.

OK, acting Probate Judge — it’s time for your ruling. Is the purported will of Bruce Morrison valid? Does his daughter Randi receive any share of his estate?

The Montana probate judge’s ruling: the will was valid and effective. The possibility of undue influence is not the same thing as evidence that there really was such influence, and Randi had produced no affirmative evidence in that regard. And the statement of Bruce confirming his signature was not hearsay, but acknowledgment that he was adopting the will as his own.

Randi appealed, and the Montana Supreme Court affirmed the probate judge’s ruling. The state’s high court agreed that Bruce’s declaration that he had signed the will was not hearsay, since it was not being introduced to prove the truth of what he said but instead to show that he had declared the will to be his. Randi’s arguments about undue influence would not suffice to create a dispute in the absence of real evidence. In Re Mead, September 30, 2014.

In this case Bruce’s real wishes seem to have been carried out, but that doesn’t change our main point: there was unnecessary cost, delay and friction occasioned by having a friend write out a one-sentence will and signing under challenging circumstances. Maybe Bruce simply didn’t have time to get his will prepared by a professional, but his estate — and his favored daughter Betty — would have been better served if he had found the time. Maybe he felt like it was an emergency and he needed to get something done that July evening, but the next day he could have — and should have — called a lawyer’s office to make an appointment on the first available date to get the job done right.

©2017 Fleming & Curti, PLC