The Risks of a DIY Will

July 7, 2014. The Florida case, Aldrich v. Basile, is a cautionary tale for those considering a do-it-yourself (DIY) Will. I think there is some benefit to making the legal profession less obdurate and inaccessible to the layperson. The march of technology and information sharing, I believe, naturally demand a more transparent legal culture. However, downloadable, fill-in-the-blank Wills demonstrate quite clearly where empowerment bleeds over into reckless and cavalier, Aldrich being a prime example. The case is not complicated, but does take some time to layout:

Ann Aldrich needed a Will. So, she made herself one using an E-Z legal Form. Along the way she made a couple of mistakes. In filling out the Will, Ann listed in particular detail her assets and designated her sister to receive them. Among those assets: a house, life insurance, vehicle, and bank accounts. The Will did have a little foresight and noted that in the event her sister did not survive her, Ann’s assets were to go to her brother. Absent from the Will was the residuary clause for distributing the remainder of Ann’s estate, namely any assets not specifically mentioned in the Will.

Ann’s sister died before Ann. As a result, Ann instead inherited her sister’s assets, which included land and significant bank funds. These were assets not accounted for in her original Will. Ann would later draft a codicil to her Will, reiterating that all of her “worldly possessions” should now go to her brother. The attempted codicil was signed by Ann, but only had one witness instead of the required two under Florida law.

At Ann’s death, the personal representative of her estate (her brother by the way) sought a determination from the court as to how the assets should be distributed. Two nieces from a predeceased sibling had come forward arguing that a share of the assets not specifically devised by Ann should be distributed to them. Ann’s brother argued that the assets inherited from Ann’s sister should have been distributed to him since that was her intention under the Will.

The court found for the nieces, though the result was easily avoidable. If Ann’s codicil had been properly executed with two witness signatures, it would have been effective to transfer all of her assets to her brother. Even failing that, if the original Will had a proper residuary clause, it would have operated to transfer all the non-listed assets to her brother. But both of these safeguards failed. The court reasoned that as to the unlisted assets, Ann died without a Will, and thus via the laws of Florida, the nieces would receive a portion.

The lamentable fact here is that all parties, the court included, knew what Ann had intended. She meant for her brother to get her property. However, a court will not re-write a person’s Will where the laws clearly indicate an outcome (though it may be one we do not want) and there is no ambiguity to be interpreted.

Estate planning is more than just a form. If one is paying an estate planner, it is for their experience, know-how, and, frankly, a certain level of competence. As with any technical craft, when one attempts their own workmanship, the risks of failure and a bad product rise sharply. In this instance, Ann thought she was prudent, saving a dollar for something she could easily do herself. The costs to her, of course, were her wishes not being followed and the price her estate had to pay to litigate an issue which could easily have been avoided.

For more information regarding the estate planning and the risks of a DIY Will, contact Goosmann Trust Law Counsel at info@goosmannlaw.com or call 712-226-4000.