Posts Tagged ‘holographic will’

The Difference Between an Heir and a Beneficiary

APRIL 18, 2016 VOLUME 23 NUMBER 15

Your estate is simple, your family relationships clear, your intentions easy to understand. Why can’t you just write your own will, and save the legal fees?

Because of Esther Hill, that’s why. Actually, that’s not her real name — we change the names of most of the people we write about, because we don’t particularly want later internet searches for their name to turn up our articles high on the list. But her story doesn’t depend on her name.

Esther had two children — a daughter Leslie and a son Leonard. Leslie and her mother were very close — they visited regularly, went on shopping excursions together, and had a strong relationship. Leslie had two daughters, and they visited their grandmother regularly.

Leonard was not married, and lived with his mother in her home in Saratoga, California. She helped support him, and she tried to involve him in family events — but he chose not to participate.

Leslie became sick and died in 1991, and Esther was devastated. Just three weeks after Leslie’s death, Esther hand-wrote her own will. She wrote (with name changes in order to keep our intended level of anonymity):

I, Esther Hill, aka as E. Hill; declare this will, is my only and last testament.

I, name my son, Leonard Hill, as sole heir and executor to manage estate affairs.

In the event of any challenges to said estate, I hereby authorize said Executor to dispense the amount of $1.00, one dollar, to any claimant.

I am confident that my son, as Executor, will also subscribe to my wishes, along lines that were discussed previously and privately in the past. A simple cremation, without ceremony is the wish of Esther Hill.

It turned out that Esther’s estate was worth a little more than $10 million. Leonard filed the will with the California probate courts, and got himself appointed as executor of her estate. He didn’t rush to wrap up her estate, though — three years after her death, he hired a woman to come to the home and help him organize and purge old business files. Two years later, he and the woman who helped him became romantically involved, and ten years later they were married. Still, though, the estate was not closed.

Leonard himself died in 2009, but without having closed his mother’s estate (or making distribution of the remaining assets, after payment of considerable estate taxes). His widow asked the probate court to appoint her to finish up the estate administration, and to determine who should receive Esther’s assets.

Can you see the problem? It’s in the language of that handwritten will, in which Esther names Leonard as her “sole heir.” The difficulty: “heir” has a specific meaning under probate law, and Leonard wasn’t her sole heir.

An heir is a person who would be entitled to a share of the decedent’s estate if the decedent died without issue, and under California law that would mean Leonard and his two nieces. If Esther had not left a will, half of her estate would go to Leonard, and one-quarter each to the two nieces. (Arizona law would be the same, as would the law of most — if not all — other American jurisdictions.)

Did Esther mean to name Leonard as her sole “beneficiary”? Or, perhaps, “devisee”? That last is the word lawyers and judges use to identify a person named as a beneficiary in a will. If she had written that she named Leonard as “sole beneficiary” or “sole devisee,” then he would have been clearly entitled to her entire estate, and his widow would receive Esther’s assets through his estate.

Esther’s granddaughters (Leonard’s nieces) objected. They argued that Esther was simply identifying Leonard as her sole surviving child, and that they should be entitled to one-half of her estate (they acknowledged that Leonard’s widow would receive the other half).

In the contested probate proceeding, various witnesses testified about Esther’s relationships with Leonard, Leslie and the two granddaughters. Some witnesses observed that Esther (and, for that matter, Leonard) talked to the granddaughters from time to time as if they would eventually inherit the property, and others testified that Esther sometimes didn’t seem to approve of her granddaughters. Because the probate court decided that the use of the word “heir” was ambiguous, it considered all that evidence — and ruled that Esther had meant to leave half of her estate to be divided between her granddaughters.

The California Court of Appeals disagreed. It ruled that the word “heir” as used by Esther was unambiguous — she clearly meant “beneficiary.” That was true, according to the appellate judges, because it would make no sense for Esther to write, in effect, that “I name Lester, my son, as my only son”. Furthermore, the final sentence (in which she indicates that she trusts Lester to carry out her wishes) does not change the result, and does not create what the Court of Appeals calls a “secret” trust for the benefit of family members.

What about the effect of Esther’s attempt to create an in terrorem or no-contest provision? If, for example, the will was construed as disinheriting the granddaughters, would they be entitled to receive $1.00 just because they objected? The Court of Appeals acknowledges that Esther’s attempt at creating a no-contest provision was clumsy, but it does not indicate that she intended to give a larger share of her estate to her granddaughters.

One of the three appellate judges disagreed with the other two. In that judge’s mind, the probate court had gotten it right — and the ruling in favor of the granddaughters should be upheld. That judge was outvoted by the other two, however. Estate of Hinz, March 22, 2016.

Woman’s Holographic Will Effective Despite State Law

JANUARY 18, 2016 VOLUME 23 NUMBER 3

It might seem odd that interstate problems in probate proceedings arise. After all, we have had 50 states and a handful of other jurisdictions gathered together in the United States for a half-century, and nearly that many for most of the two centuries before that. Shouldn’t differences in probate interpretations been ironed out by now?

Not necessarily. Perhaps it is a result of the fact that Americans are much more mobile today than they were even a few decades ago. Perhaps it is partly because of improvements in communication, letting interstate issues rise to the surface more readily. For whatever reason, a recent case involving Pennsylvania and Connecticut demonstrates that there can still be uncertainty about application of probate principles.

Rose and Mae (we’ll leave their last names out of this explanation), sisters, lived together in a house in Philadelphia for many years. They jointly owned their home, and they also were two of five joint owners of a farm in Connecticut. The farm was an inheritance, still held in the names of Rose, Mae, their brother Stephen, their sister Alyce, and a nephew (John) who had inherited his father’s share.

At Christmas time in 2000, while Rose was recovering from a stroke, Stephen sent a card to his sisters. He urged them to do some estate planning, since if they failed to do so “the lawyers would have a field day” and there estate taxes would be very high. He was wrong about that last assertion, incidentally, but that is not the point of our story.

In any event, Rose responded to her brother’s suggestion by dictating the language of a will to Mae’s son, who lived nearby. He wrote out her will, she made a few changes (adding her middle initial, for instance) and signed the document. She did not have it witnessed, and did not talk to an attorney about improving the quality of her will — she lived another six years, but did not update the document.

After Rose’s death (and after Mae entered a nursing home), Mae’s son initiated a probate proceeding in Pennsylvania, where Rose had lived and died. He sought admission of the handwritten document as a “holographic” will; Pennsylvania law recognizes such documents even if they are not signed by two witnesses. Initially John, Stephen and Alyce (Rose’s nephew and two siblings) objected to the Pennsylvania probate, but then they withdrew their objections. The will was admitted to probate in Pennsylvania.

Then Mae’s son filed an action in Connecticut to have the Pennsylvania probate proceeding recognized there. Such a proceeding is called an “ancillary” probate, meaning that it relies on the validity and rulings of the court in another state (the “domiciliary” state). John, Stephen and Alyce objected, arguing that Connecticut law does not permit holographic wills. They also argued that evidence showed that Rose was unduly influenced, and that Connecticut public policy did not favor wills such as Rose’s.

The Connecticut trial court ruled that the question was not whether Rose’s will would satisfy Connecticut law, but whether it had been found to be valid in Pennsylvania. Since it had, said the judge, the only issue was whether there was sufficient reason to challenge that ruling — finding none, the will was admitted and effectively transferred Rose’s interest in the inherited family farm to Mae’s family.

The Appellate Court of Connecticut agreed with the trial judge, and upheld his ruling (interestingly, only nephew John had appealed, not that it actually matters). The result: Rose’s holographic will, not itself valid in Connecticut, was effective to pass Connecticut property because it was valid in Pennsylvania and admitted to probate there.

The appellate judges noted that the common law rule had been different. Until the 1850s, when Connecticut had expressly adopted a statute recognizing the validity of wills which were valid when and where they were executed, a will would not be effective to pass Connecticut real property unless it met that state’s tests for validity. For the past 150 years, though, Connecticut had expressly approved out-of-state wills that met their local requirements for execution. Goodwin v. Colchester Probate Court, January 19, 2016.

Would Arizona courts reach the same conclusion? From the description, for instance, it appears that Rose’s holographic will would not meet Arizona’s requirements for admission to probate (Arizona is one of the states that, like Pennsylvania, recognizes holographic wills — but they have to meet Arizona’s requirements). If Rose had held real estate in Arizona, would her will have been effective? Although the precise question has not been addressed in Arizona, the result should be the same — though there is one 70-year-old Arizona case that might support an opposing argument.

Another point needs to be made: we are constantly surprised that people might leave their estates in such disorder as to trust handwritten notes which might be subject to dispute. In the six years after her brother suggested she ought to plan her estate, could Rose not find an hour to visit a lawyer to get good advice? For that matter, couldn’t she have undertaken that project sometime in the decades before her brother’s suggestion?

It is perhaps not too surprising that Rose might want to leave the bulk of her estate to her sister (with whom she lived) and her sister’s family. It is only surprising that she left her affairs in a condition that enhanced the likelihood that “the lawyers would have a field day,” and that she would create legal disputes among her family members. It would have been so easy to avoid that result.

Do-It-Yourself Will May Not Save Costs After All

APRIL 7, 2014 VOLUME 21 NUMBER 13

From time to time we devote our weekly newsletter to a story about estate planning gone wrong — often (but not always) because of an individual’s decision to forego the help of a lawyer in drafting a will or trust. Lawyers also make mistakes, of course, but they are trained and paid to anticipate most of the kinds of issues that might arise. Untrained individuals may not have the skill or luck to foresee problems.

Consider Diane, who decided to write her own will. She bought a pre-printed will form at a bookstore, and opened up the package. In the middle of the form was a big open space with the language:

“I direct that after payment of all my just debts, my property be bequeathed in the manner following:”

Below that awkward introductory sentence, on the lines in the form, Diane wrote in:

“To my sister Mary Ann, my BigBank Checking and Savings Account, my house at 123 Poplar Street and its contents, my 2010 Dodge Truck and my Friendly Investments IRA. If Mary Anne dies before me, I leave all listed to my brother John.”

Diane completed the form properly, signed it, had it witnessed by two people and had the entire document notarized. She felt pleased that she had accomplished this task efficiently and inexpensively.

Do you already see what was wrong with Diane’s will? If you are a lawyer, you probably do — but you might not if you are not a lawyer.

Three years later Mary Ann died — before her sister, and before Diane’s will could leave anything to her. In fact, Mary Ann left her own home and bank account to Diane. Diane took the $120,000 she inherited from her sister and opened a new brokerage account at Friendly Investments (the same brokerage house where her IRA was located). Then, two years after Mary Ann’s death, Diane died.

Diane’s brother John did survive her. So did the two daughters of her other, deceased brother Jim. So who inherits what?

Those are essentially the facts of a recent Florida Supreme Court case, Aldrich v. Basile, (March 27, 2014), except that we have changed the names and a few of the details. In that case, the probate judge decided that Diane intended to leave everything to her brother John, and ordered that her nieces would receive nothing. The Court of Appeals ruled that Diane had died without a complete will, and that her nieces would receive a share of the undesignated part of her estate — the home and account she had inherited from her sister. The Florida Supreme Court had to decide between those two views, and ultimately sided with the Court of Appeals. Diane died “partially intestate” and the unspecified part of her estate would pass to her living brother and her late brother’s children. Her nieces received a share — a small share, to be sure — of her estate.

Now you can more easily see what was wrong with Diane’s will. She did not include a “residuary clause” providing for assets not listed in her will. If she had added a few short words to the end of the dispositive language she could have provided for distribution of “all the remaining assets I might own” or something similar.

Perhaps Diane actually did want to leave her inheritance to all of her relatives, and the failure to provide for it was not oversight but intentional. Well, there are more facts in the Florida case that we haven’t shared with you yet. After Mary Ann’s death, Diane grabbed a note pad (ironically, with the pre-printed heading “Just a Note”) and wrote out her additional instructions: “I reiterate that all my worldly possessions pass to my brother” John. She signed it, dated it, had it witnessed by one person (John’s daughter) and put it in the envelope with her will. Her wishes were pretty clear: she wanted to leave everything to John. That wasn’t what happened, however.

Diane’s will would actually have worked in Arizona. Unlike Florida, Arizona recognizes “holographic” (handwritten) wills even when they are not properly witnessed. Her “Just a Note” note would probably have been treated as an amendment or codicil to her will, and would probably have been admitted in Arizona probate court.

What is the lesson to be learned from Diane’s story (and case)? Even if you think your estate is small, and you want a “simple” will, you should see a lawyer. As we said at the beginning of Diane’s story, we’re trained and paid to think of how things might go wrong, or at least change, if circumstances change, and we’re familiar with the rules for wills, trusts and probate proceedings. Ultimately, Diane’s estate would have saved a lot of legal fees for the very modest cost of a lawyer at the outset — and what she wanted could actually have happened.

The iWill — Might It Be the Future of Probate and Estate Planning?

FEBRUARY 24, 2014 VOLUME 21 NUMBER 8

News reached us this month of a November, 2013, probate court order in Australia admitting an unusual will to probate, and it made us wonder if we should anticipate a digital future for estate planning. An Australian probate decision would have to be pretty unusual to get noticed around the world, but this one qualifies. The judge in Brisbane determined that the decedent’s last will was valid — though it was only on his iPhone.

Karter Yu committed suicide in September of 2011. Shortly before his death he created a number of documents on his iPhone, most of which were apparently farewell letters. One, however, looked very much like a will. It began with “This is the last Will and Testament of Karter Yu,” and it contained all of the provisions that one would expect to see in a will. It named an executor (what we in Arizona would call a personal representative), it included his address, and it gave directions for the distribution of his property. In the space where one might expect to see a signature on a printed document, Mr. Yu had typed his name, added the date and listed his address again for identification.

Queensland probate law, like Arizona’s (and most U.S. states’ laws), is descended from English common law. The old common law approach was clear: a will, to be valid, must be signed by the testator (the legal term for a person making a will) and witnessed by two individuals — and it must clearly indicate that it is intended to dispose of property at death of the signer. There may be additional details required in individual cases, and there are sometimes a handful of exceptions, but those remain the basic rules for making a valid will in most jurisdictions operating under English common law principles.

In Queensland, however, there is a relatively new variation. A document that does not meet the formal will requirements may still be admitted as the decedent’s will if:

  1. It exists as a document — and that includes any computer file stored on disc, tape or otherwise, provided that it can be produced or reproduced (i.e.: printed, or copied, or presumably even e-mailed), and
  2. It states the testamentary intentions of the decedent, and
  3. There is sufficient evidence that the decedent intended the document to be his or her will.

Looking at Mr. Yu’s iPhone document, the probate judge in Brisbane had no trouble determining that all three conditions were met. The will was admitted to probate, and his nominated executor appointed to administer his estate. Re: Yu, November 6, 2013.

This result might seem surprising to an Arizona probate judge — or lawyer — but was not necessarily a major extension in Australia. Just a year earlier, in a somewhat similar case, a New South Wales probate judge had admitted a word processing document to probate in Yazbek v. Yazbek, June 1, 2012. The decedent’s parents (who would have taken his estate if he had no will) insisted that he must have printed and signed the will document, then destroyed it — effectively revoking it as his will. The probate court found otherwise, and the unprinted document was admitted as the decedent’s last will.

Is a similar trend likely to develop in Arizona? Not likely, or at least not any time soon. Arizona’s probate law still adheres to the old English requirement: a valid will must be on paper (well, we suppose it could be on another medium — but it would have to be printed out), signed by the testator and witnessed. One notable exception, the “holographic” will, need not be witnessed — but it must be in the handwriting of the testator.

There is, though, a larger trend toward liberalizing the requirements for validity of wills. The National Conference of Commissioners on Uniform State Laws (NCCUSL) has developed and promoted the Uniform Probate Code — in fact, Arizona was one of the first states to adopt the UPC, in 1973. Though the UPC has been adopted in only a handful of states, it has been tinkered with regularly; the general trend in that tinkering has been to make it easier to approve questioned documents. The current (2011) version of the UPC permits the probate court to admit a “document or writing” that doesn’t comply with the requirements of English common law if there is clear and convincing evidence that the decedent had wanted the document or writing to be a will, a revocation, an amendment or a revival of a previous will.

Arizona has updated much of its version of the Uniform Probate Code, but not this provision (which, if you’re curious, is section 5-203 of the 2011 UPC). A handful of states have adopted the current version. Would Mr. Yu’s “iWill” be admissible in those states? It’s hard to be certain, but probably not — not because the idea would be unimaginable but because it’s likely that the file on the iPhone would not be characterized as a “document or writing.” But as public thinking about computer and internet files continues to evolve, you might reasonably expect that to change.

What does this mean for someone who wants to create a will on his or her iPhone? Don’t try it. The only thing certain is that you will assure the beneficiaries of your estate a high legal bill for the proceedings to determine what it means. Print the thing out, sign it before witnesses, and have them sign it, too. Better yet, hire someone who knows how to make sure your will is valid — like a lawyer — to prepare the will and supervise its execution.

Of course if you’re an Android user, everything is different. Just kidding.

Can You Change Your Will By Writing On It?

NOVEMBER 18, 2013 VOLUME 20 NUMBER 44

So you have a will, and you want to make some changes. Can you just write in the new provisions? How about if you sign somewhere on the document?Can it be a copy of your will, or does it have to be on the original to be effective? Do you need witnesses?

The correct answer: don’t make changes that way. There are too many variables, too many interpretations, too many ways for those changes to just add cost to the probate of your estate while not effecting the result you intend. Talk to your lawyer, get changes made formally, and have a new will drawn up. Can it just be a codicil? Yes, but there is frankly almost no reason in this age of computerization to ever sign a codicil to your will — just sign a new will. One drafted by your lawyer.

Sometimes, though, time just gets away from you. If you want to make changes, you probably ought not wait until just before your 100th birthday. That’s probably the biggest mistake Jenny Travis (not her real name) made.

Ms. Travis had signed a will in 2002, and a codicil a few months later in 2003. In 2010 she had her caretaker call her lawyer, asking him to make a visit to review her estate plan.

The lawyer made a photocopy of Ms. Travis’ existing will and codicil, and went to her home to discuss them with her. During their meeting, he hand-wrote several changes in the margins of his copy of her existing will. As she described the changes, he scratched out two individuals’ names next to a bequest and wrote in two replacements. In another place he deleted a paragraph, and in another made modifications to the way a bequest would be handled. Another was changed from $10,000 to $42,000, again in the lawyer’s handwriting. Finally, the two charities who were scheduled to get the remainder of her estate in the 2010 will were crossed out and replaced with Ms. Travis’ brother.

At this point the lawyer had Ms. Travis sign her name by each of the changes, and he signed as a witness. Then he wrote a note to his secretary at the top: “Linda, do a codicil that changes” the affected sections of the 2002 will and 2003 codicil. He took the document back to his office with him, and a codicil was prepared. Unfortunately, though, Ms. Travis died six weeks after her lawyer’s visit, without ever having signed the new, formally prepared codicil.

Did those handwritten changes constitute a will or a codicil? Not according to the Pennsylvania probate office, which declined to admit the handwritten changes to probate (but did admit the 2002 will and 2003 codicil).

Ms. Travis’ lawyer appealed, and the Superior Court (the second-tier appellate court in Pennsylvania) viewed things differently. The appellate judges ruled that Ms. Travis’ changes might be a codicil to her will — and that the probate court should conduct a hearing to determine whether that was what she intended when she signed (and her lawyer witnessed) beside each change. One of the nine judges considering the case would have gone further — he would have ordered the handwritten notes admitted to probate without any further testimony. Still, it seems likely from the language of the opinion that the lawyer’s notes will ultimately be given effect — it will just have taken a trip to the appellate court and a delay of several years before the issue is resolved. In Re Estate of Tyler, November 13, 2013.

Assuming that Ms. Travis really did want to make the changes her lawyer wrote down, what might have been done differently to make sure her wishes were carried out? And would the same result be reached if Ms. Travis had lived and died in Arizona?

One obvious thing to consider would have been to make the changes earlier. By the time of her death Ms. Travis was 100 years old — if she had been thinking about making the changes for very long, she probably should have called her lawyer earlier. Perhaps, though, she had just recently made up her mind about the changes when she met with her lawyer.

Apparently Pennsylvania law permits changes to a will to be effective if written by someone else and signed by the person making the changes. It may not even have been necessary for her lawyer to sign as a witness (we don’t practice Pennsylvania law, so we might have gotten that wrong). The same is not true in Arizona — changes like those made by Ms. Travis’ lawyer would require her signature and two witnesses in Arizona. It’s not even completely clear that the changes would have been accepted then, since there does not seem to have been any indication in the written notes that the changes were intended to be a will or codicil, and they were made on a photocopy of her old will.

In Arizona it would have been better for the lawyer to write out a separate document describing what it was and the intended effect, and to have Ms. Travis sign it in front of two witnesses. Such a document would probably have been effective. Another alternative, since Arizona permits “holographic” wills, would have been for Ms. Travis to write out her changes in her own handwriting, and to sign that document (no witnesses would have been required) — though that creates plenty of opportunity for her to get the changes jumbled, or leave out portions or make mistakes. Presumably the lawyer, familiar with will drafting, would have had an easier time making the changes correctly.

Of course it would have been wonderful if the lawyer could have returned to Ms. Travis’ home with a beautifully typed new will (again, just forget codicils) the next day and had her sign in front of two witnesses. It is unclear why that did not happen — whether Ms. Travis was unable to discuss her wishes shortly after the initial visit, or the lawyer’s secretary Linda was out sick the next day, or what else might have intervened. The central lesson: if you want to make changes to your estate plan, get to it promptly, and talk with your lawyer right away.

Amending Your Will–Caution: Do Not Try This At Home

FEBRUARY 20, 2012 VOLUME 19 NUMBER 7
OK — you’ve signed your will and paid the big lawyer’s fee. Now you want to make a change. Do you know how to modify your will? Can you do it without incurring another fee? Shouldn’t it be easy to make the change?

All that might have been going through Donald Wolf’s mind when he made changes back in 2005. You see, he had written a clearly valid will in 1995. In it, he left half of his estate to a married couple who had been long-time friends. A quarter of his estate was to go to another friend, and the final quarter to a fund to assist AIDS patients. He named the wife of the married couple as his personal representative. Then he gave an unsigned copy of the will to the woman named as personal representative.

In 2005, when he was thinking about making a change, Mr. Wolf talked with the couple to whom he was leaving half of his estate. Then he took THEIR copy of his will, crossed out the bequest for AIDS patients and wrote that instead that quarter of his estate would be divided between two other friends. He dated and initialed the changes, but no one signed as witnesses. At some point — perhaps during that same meeting, but his friends could not clearly recall — he did the same thing on the signed original will, as well.

Was Mr. Wolf’s will amendment effective? We’ll give you a minute to think about it, and try to decide what you think. Wait — we’ll give you one more clue: the probate court decided that the attempt to amend his will was ineffective, and ordered that the AIDS fund was still a one-quarter beneficiary.

One of the two friends named in the hand-written amendment appealed the probate court’s decision, and the Arizona Court of Appeals reversed the finding. Arizona permits “holographic” wills and amendments; if the material provisions of a will are in the decedent’s handwriting, they do not need to be witnessed. The appellate court decided that Mr. Wolf’s amendment was a holograph, and that it should be given effect. Estate of Wolf, February 7, 2012.

Back to our original questions: assuming you want to change your will, does the Wolf case stand for the proposition that it is as easy as taking your original will out, scribbling the changes, initialing and dating (which Mr. Wolf did) and putting it back away? Emphatically, NO. Here are some reasons why you should NOT use Mr. Wolf’s method for changing your will:

  1. You might live in, or move to, a state where holographic wills are not permitted. Not every state in the U.S. allows holographic wills and codicils, and they are disfavored in other jurisdictions — even in English-speaking countries, where the idea was once embedded in English law. Even where they are permitted the rules vary. It is never a good idea to rely on a holographic will, codicil or amendment.
  2. Even if the handwritten notes are admitted as part of the will, the intent and meaning is usually subject to interpretation and confusion. Is it possible that Mr. Wolf was making notes about possible changes that he meant to discuss with his lawyer — but never got around to completing? Apparently not, but very slight differences in testimony can lead to significant differences in result.
  3. Holographic documents are much more likely to result in litigation — and in delay and additional cost.
  4. The cost of making changes in your will is usually surprising slight. Go ahead — ask the lawyer who prepared your will how much he or she will charge for making changes. You are likely to be surprised at the answer. Why would it be inexpensive? Because a significant part of the cost of preparing your estate plan comes from the time it takes to understand your assets, family situation, goals and intentions. Much of that has already been done, and so amending your will is likely to cost quite a bit less than the original cost of preparing the will. That is true even though most lawyers would rather simply write a new will than prepare an amendment or codicil.
  5. There is a side benefit to meeting with your lawyer to amend your will. Laws change, your situation changes, the world changes — and your lawyer can point out things you ought to be thinking about in addition to the changes you want to make. In fact, you should be visiting with your lawyer once every five years or so — more if your situation is more fluid, or your assets are significant — just to see if you need to update documents.

Paternity Testing Allows Unacknowledged Son to Share in Estate

NOVEMBER 21, 2011 VOLUME 18 NUMBER 40
Paternity testing has come a long way in the last few decades. You might reasonably think that it is now so easy to establish parentage that probate court disputes about the subject would be largely a thing of the past. If you thought that, you’d be wrong. Just ask Thomas Powell.

Mr. Powell’s experience in probate court began with the death of Oklahoma resident Valatus Merral Dicksion. Mr. Dicksion had been married, but his wife had died before him. He and his wife had two adult daughters. Mr. Dicksion left a four-page handwritten will, which originally had named one of his daughters as administrator of his estate. Someone had crossed out that portion of the will.

Mr. Dicksion’s brother filed the handwritten will with the probate court. He listed the two daughters as heirs, and described the will as being in his brother’s handwriting and signed by him. The court appointed him as personal representative.

A few months after the probate proceeding was initiated, Mr. Powell filed a petition seeking recognition of his status as a son of the decedent. He argued that the decedent had a relationship with Mr. Powell’s mother, and that his mother put him up for adoption shortly after his 1952 birth.

Mr. Powell and the decedent’s brother both agreed to DNA testing to see if paternity could be confirmed. The paternity testing results were conclusive: Mr. Powell was in fact the decedent’s biological son. The probate court then entered an order determining that he was an “unintentionally omitted” heir, and awarded him the same share of the decedent’s estate that he would have received if Mr. Dicksion had died without signing a will at all.

As the probate estate was wrapping up, Mr. Powell joined his half-sister in objecting to the validity of the handwritten will and sought removal of the decedent’s brother as personal representative. The probate court denied his objections and approved the final accounting of the estate. The probate judge also denied the personal representative’s request that Mr. Powell be ordered to pay the estate’s additional attorney’s fees incurred in responding to his requests.

Mr. Powell appealed to the Oklahoma Court of Appeals, which ruled (among other things) that the DNA testing should not have been used to determine paternity after Mr. Dicksion’s death — that paternity must be established before an alleged father’s death. Mr. Powell then appealed that result to the Oklahoma Supreme Court.

The state high court rewrote the outcome substantially in Mr. Powell’s favor. First, the justices decided that post-death paternity testing CAN be used to determine heirship, at least in Oklahoma. Then they ruled that an Oklahoma law preventing a decedent’s business partner from being appointed to administer an estate should have been applied to Mr. Dicksion’s brother. Finally, they ruled that the contest of Mr. Dicksion’s alleged will should have been formally resolved before the estate could be closed. In Matter of the Estate of Dicksion, November 15, 2011.

The decision was not unanimous. Of the nine members of the Oklahoma Supreme Court, five voted to uphold Mr. Powell’s paternity determination and four argued that prior Oklahoma court decisions should have been followed (which would have prevented the DNA tests from being used). The four dissenting justices did not address questions about the appointment of Mr. Dicksion’s brother as personal representative, or the status of the unresolved will contest.

Mr. Dicksion’s family situation and probate proceeding make for an interesting story. They also cast a little light on how probate contests can sometimes arise, and how resolution of disputes can be difficult and unclear (witness the 5-4 decision of the Oklahoma Supreme Court). It would be a mistake, however, to generalize too much from the result in this case.

All three parts of the Oklahoma Supreme Court holding are dependent on the peculiarities of Oklahoma law. The statute for determining paternity (and its effect on a will not mentioning a previously unknown child) is unusual in Oklahoma, and unlike that in Arizona. The prohibition on business partners being appointed as personal representative (unless mentioned in a will) is also unique to Oklahoma, and does not have an Arizona counterpart. Finally, Oklahoma is one of the minority of states which permits a “holographic” will to be valid (Wikipedia reports that 19 of the 50 U.S. states permit holographic wills — we haven’t checked that assertion, but it sounds about right to us). Arizona, like Oklahoma, does recognize holographic wills; in Arizona, a valid holographic will must have the signature and “material provisions” in the testator’s handwriting.

So what useful information is in the appellate decision in Mr. Dicksion’s probate case? Well, we might generalize a handful of principles:

  1. Know the local law, and update your estate planning if you move. While we might not be too concerned about the possibility of unknown descendants in Arizona, Oklahoma law appears to be significantly different. Whenever a client moves to another state, we urge them to meet with a lawyer in their new state to see if there are differences in state law that they should be aware of. This is the sort of difference we sometimes see and always caution about.
  2. Deal with contingencies in the planning documents, even if it seems unnecessary. If Mr. Dicksion’s will had included a provision that said “I intentionally omit any person not specifically named herein” (or similar language) would the result have been different? Perhaps not — but it might have strengthened the argument that an unknown child should not share in the estate. Of course, this is exactly why lawyers’ documents tend to be much longer and more complicated than non-lawyers think is absolutely necessary.

Patient With Dementia May Have Authored Valid Will

NOVEMBER 7, 2011 VOLUME 18 NUMBER 38
A woman has been diagnosed as suffering from dementia of the Alzheimer’s type, and she resides in an assisted living facility. She has short-term memory loss, is frequently forgetful and has difficulty with tasks like playing cards and operating her television set. Can she sign a new will?

That is the legal question posed by Clara Marsh’s will, which she wrote out in longhand and signed in 2006. Ms. Marsh died two years later, and her son and daughter ended up in a legal battle over whether the will was valid.

To be more precise, Ms. Marsh’s will actually presents two related but independent legal questions. First: was she competent to sign the will on the day she did? Second: if she was competent, did her son and daughter-in-law exert undue influence on her in connection with the new will?

A brief background is in order. Ms. Marsh had a 1996 will that left everything equally to her two children. When she moved into a condominium in 2003, she wrote to the children telling them that she intended to leave her new home to her son Richard. He had helped her with the purchase, and she explained to the children that she had placed her new home in joint tenancy (with right of survivorship) with Richard. She did not, however, sign a new will at that time.

In 2006 Ms. Marsh moved to an assisted living facility, and the condominium was sold. The proceeds from that sale then became a bone of contention between her son Richard and her daughter Elaine Grayson. Richard thought the proceeds should be put into an account in his and his mother’s names as joint tenants; Elaine insisted that the proceeds be placed in an account in Ms. Marsh’s name alone.

As the two siblings (and their respective spouses) debated how to handle the sale proceeds, Elaine’s husband John filed a guardianship petition. He alleged that Ms. Marsh had Alzheimer’s disease and dementia. Richard opposed the guardianship petition, and the relationship between the two couples deteriorated.

A month after the guardianship was filed Ms. Marsh prepared a one-paragraph will in her own handwriting. It said:

Because of all the legal problems Elaine and John are causing, I am afraid my final wishes will be ignored. To prevent this from happening, this is my new will: I leave everything to my son Richard and his wife Sam. I love you all very much.

This new will was witnessed by Ms. Marsh’s priest and the church secretary. She apparently did show it to Richard shortly after she signed it (he says he told her to “hide this someplace” and think it over), but she did not share it with Elaine or her husband John.

After Ms. Marsh’s death in 2008, Richard filed the handwritten will with the Ohio probate court. Elaine objected, arguing that (a) Ms. Marsh had been incompetent at the time of the will’s signing, and (b) Richard and his wife had exerted undue influence over Ms. Marsh to get her to disinherit Elaine. The probate court granted summary judgment to Richard, thereby dismissing the objections raised by Elaine.

The Ohio Court of Appeals agreed with the probate court on the first issue, but sent the dispute back to probate court for further proceedings regarding the undue influence count. Despite a diagnosis of dementia, and despite forgetfulness and confusion, the appellate court agreed that Ms. Marsh appeared to understand the things needed to make a valid will. She knew who her children (and in-laws) were, and even though she may not have known the precise nature of her assets she did understand what was involved with her estate. She knew she was making a will, and the effect of doing so. Summary judgment was appropriate on the question of her legal capacity to sign a will. Despite her limitations, despite her diagnosis and despite her living situation, she was able to make her new will.

But it still might be possible to show that she was subjected to undue influence, and the appellate court took pains to distinguish the two concepts. Undue influence, the court noted, is not the same as general influence — even “strong and controlling” influence. To be “undue,” influence must be so pervasive and effective as to result in the document reflecting the wishes of the influencer and not those of the signer. That is a high barrier for a will challenger to cross, but Elaine should be given a chance to introduce evidence to support her claim, ruled the Court of Appeals. In Re Estate of Marsh, October 28, 2011.

Other than the obvious (“don’t exercise undue influence over seniors”), what lessons can we take from Ms. Marsh’s story to guide our actions when working with seniors like her? We might submit a couple for your consideration:

  • Don’t forget that, while you and other family members dispute how best to handle the senior’s finances (or life), he or she may have some strong opinions and may actually feel affected by your decisions, arguments and tactics.
  • “Winning” may not be as important in family disputes as figuring out a way to get along. The cost of this particular dispute: thousands of dollars in legal fees, irreparable damage to family relationships and (and not least) psychic injury to the individual everyone was trying to protect.
  • Family disputes are sometimes about the best interests of a vulnerable family member, sometimes about dollars, sometimes about pride, and sometimes about control. In our professional experience, those last are often the most difficult ones to resolve.

Draft Will Is Almost (But Not Quite) Admitted to Probate

SEPTEMBER 20, 2010 VOLUME 17 NUMBER 29
There is a lot of mythology, misunderstanding and just plain confusion about wills and probate. Sometimes the reported cases don’t help clarify what makes a will valid, when it is subject to challenge or even what might be a will.

The general rule is clear, and ancient. The Parliament of England adopted the Statute of Wills in 1540, and a version of its requirements can still be found in every U.S. state. One of the most important principles from the Statute of Wills: a valid will must be in writing, and must be signed by two witnesses. That is still the law in most common law jurisdictions, and it is certainly the law in Arizona.

But wait. Perhaps you have heard about “holographic” wills; they do not have to be witnessed at all. The basic rule in states which permit holographic wills (Arizona is one) is that the material provisions must be in the handwriting of the person, and signed. You can see those rules might amount to a lawyer’s field day — what are “material provisions,” and how are courts supposed to interpret the incomplete or even contradictory provisions of a handwritten document?

Then there are “nuncupative” wills. They are not permitted in Arizona at all, but some states allow them. They are oral statements of the wishes of someone on their deathbed. In states recognizing nuncupative wills, they may be limited to items of personal property like jewelry, small amounts of cash or even items with no economic value. You might (depending on which state you are living — and dying — in) be able to say “I want my dad’s pocket watch to go to Harry” but not “I want Harry to have my $100,000 T-Bill.”

The Uniform Probate Code, promulgated by the National Conference of Commissioners on Uniform State Laws (NCCUSL) and adopted in 19 states (including Arizona) provides some new ways to let people express their wishes — and, arguably, to increase legal fees in some cases. Under recent amendments to the Uniform act, a will that is unsigned or not signed properly could still be a valid document if it can be shown by clear and convincing evidence that the individual intended it to be treated as a will. We should stop a moment to point out that although Arizona adopted the Uniform Probate Code back in 1973, the more recent revisions have not been adopted. Arizona still requires all wills (except holographic wills) to be witnessed by two people.

When might the new section of the Uniform Probate Code be useful? How about the sad case of Louise Macool, who died in New Jersey in 2008?

Mrs. Macool’s husband of forty years had died just a month before she made an appointment to see her long-time lawyer. She brought along a handwritten note to tell the lawyer what she wanted. Her old will left everything to her late husband’s seven children equally (she had no children of her own, but had helped raise his children). Her note said, cryptically, “get the same as the family Macool gets — Niece — Mary Rescigno” and some other changes she wanted to discuss.

Mrs. Macool explained the note to her lawyer. She wanted to add her niece, Mary Rescigno, to her will, along with another niece. While she was still in his office, the lawyer picked up his dictation equipment and dictated a will for her review and signature. Then she left the office to go to lunch; she would make an appointment to review the will after her attorney’s staff had transcribed it and he had a chance to review it for accuracy.

Sadly, Mrs. Macool never saw the draft will. Within the hour after she left her lawyer’s office she died.

The lawyer’s staff prepared the draft will, apparently not knowing of Mrs. Macool’s death. Relying on the Uniform Probate Code language, Ms. Rescigno then asked the probate court to admit the unsigned document as Mrs. Macool’s last will.

The probate court heard a day of testimony and argument, then declined to admit the draft document as a will. The probate judge agreed that Mrs. Macool’s intent in meeting with the lawyer was to change her will to include Ms. Rescigno, but decided that some sort of signature was required on the document.

The New Jersey appellate court agreed with the result, but not the reasoning. Requiring a signature on the document would make it essentially a duplication of the holographic will provisions, ruled the appellate judges. Mrs. Macool’s draft will could be admitted to probate if she had had a chance to review it and indicate that it reflected her wishes. Her handwritten notes, meanwhile, did not amount to a holographic will — they would need her signature.

The trial judge had declined to admit the draft document to probate as Mrs. Macool’s will, but he had agreed that Ms. Rescigno’s lawyer should be paid from Mrs. Macool’s estate. New Jersey’s probate rules expressly authorize payment of attorney’s fees for someone who “had reasonable cause” for even a failed contest. Ms. Rescigno’s lawyers had submitted bills totaling $34,433; the probate judge had cited his personal “policy reasons” in reducing the fee by about 15%.

Even though her lawyers had been unsuccessful the appellate court approved of the payment to Ms. Rescigno’s counsel. In fact, they reversed the probate judge’s reduction of the claimed fees. According to the appellate court, there was no indication that the hourly rates were unreasonable our out of line with prevailing rates, or that the claimed hours were not actually worked. In Re Probate of Alleged Will of Macool, September 16, 2010.

Without “Testamentary Intent” Handwritten Note is Not a Will

OCTOBER 27, 2003 VOLUME 11, NUMBER 17

In 1978, shortly after his mother’s death, Donald Gilbert wrote this note on a three-by-five note card:

“Dear Lillian, 11-27-78. I’ve been very depressed—I can’t stop crying for Mom—in my death I’ve left everything to you and the children. Don’t be angry with me. Love, Don.

Mr. Gilbert died seventeen years later. His cousin Lillian Miller claimed that the note was a will, and that she and her children should inherit his estate.

California, like Arizona, recognizes “holographic” wills. A holographic will is one substantially (or, as in the case here, entirely) in the individual’s handwriting and signed by the individual. While wills usually must be witnessed by at least two persons, holographic wills do not require any witnesses. If Mr. Gilbert’s note card was a will at all, it would be valid under California law.

As is usually the case, of course, the facts were more complicated than that. After Mr. Gilbert’s death Ms. Miller had secured appointment as administrator (what in Arizona and many other states would be called “personal representative”) and had handled the estate for two years. During that time she had misused Mr. Gilbert’s funds; the probate court ultimately ordered her to repay $837,525. If she and her children were the sole devisees, however, her misuse of funds probably would not cause her any problems.

The probate court determined that the note was in Mr. Gilbert’s handwriting. One friend testified that Mr. Gilbert had said he had prepared a will; another friend swore that Mr. Gilbert had said the exact opposite. Considering all the evidence, the probate court decided that the note card was Mr. Gilbert’s last will and that Ms. Miller and her children should inherit the entire estate.

The California Court of Appeals disagreed. For the appellate court, the key question was whether Mr. Gilbert intended the note card to be a will. It would not be enough, said the court, just to determine that the note reflected what Mr. Gilbert intended to do. The note referred to a past act when it said “I’ve left everything to you….” In that case, the note was not itself a will, even though it was in Mr. Gilbert’s handwriting and signed by him.

Since no other will could be found, and there were no children or spouse surviving, Mr. Gilbert’s estate went to his cousins—including Ms. Miller, but also including several others. It is unclear how much money remains in the estate, or how much Ms. Miller will have to repay. Estate of Gilbert, October 16, 2003.

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