Careful, Thoughtful Drafting Essential In Estate Planning

On April 5, 2004, Ms. Ann Dunn Aldrich wrote her Will on an “E–Z
Legal Form.” In Article III, entitled “Bequests,” just after the form’s
pre-printed language “direct[ing] that after payment of all my just
debts, my property be bequeathed in the manner following,” she hand
wrote instructions directing that all of the following “possessions
listed” go to her sister, Mary Jane Eaton:

— House, contents, lot at 150 SW Garden Street, Keystone Heights FL 32656

— Fidelity Rollover IRA 162–583405 (800–544–6565)

— United Defense Life Insurance (800–247–2196)

— Automobile Chevy Tracker, 2CNBE 13c916952909 —All bank accounts at M & S Bank 2226448, 264679, 0900020314 (352–473–7275).

Ann also wrote: “If Mary Jane Eaton dies before I do, I leave all
listed to James Michael Aldrich, 2250 S. Palmetto 114 S Daytona FL
32119.” The Will contained no other dispositive provisions. It was was
duly signed and witnessed.

Ms. Eaton died three years later, survived by Ann.   Mary Jane left
Ann a substantial amount of cash and land. On October 9, 2009, Ann Dunn
Aldrich herself died, not having revised her Will to dispose of the
inheritance she had received from her sister.

Article III of Ann’s Will made specific bequests of the property
which Ann owned on the date she executed her Will,   but was silent as
to the property which Ann later inherited from Mary Jane.  Moreover,
Ann’s Will lacked a residuary clause (“I devise and bequeath and all of
the rest, residue, and remainder of my property to ___________”).  It
was thus unclear who would succeed to the property which Ann inherited
from Mary Jane.  Ann’s brother James Aldrich argued that under Article
III of Ann’s Will he was entitled to the property inherited from Mary
Jane.   Laurie Basile and Leanne Krajewski, Ann’s nieces and the
daughters of Ann’s predeceased brother, asserted that Ann’s Will failed
to effectively dispose of the property inherited from Mary Jane, and
thus that such property passed pursuant to the Florida statute of
intestacy.  Under the Florida statute of intestacy, that property would
pass one-half to James and one-quarter each to Laurie Basile and Leanne
Krajewski.

James Aldrich secured appointment as Ann’s personal representative of
Ann’s estate.  He petitioned the Probate Court to determine who was
entitled to the property inherited by Ann from Mary Jane.  The
testator’s intent controls interpretation of a will.  But that intent
can only be divined from the four corners of the will; courts do not
consider extrinsic evidence of testamentary intent.

Ann’s April 5, 2004 Will was found among her papers after her death.
Also found among Ann’s papers was a document dated November 18, 2008,
and entitled “Just a Note.” The latter document was in Ann’s handwriting
and provided:

This is an addendum to my will dated April 5, 2004. Since my sister
Mary jean Eaton has passed away, I reiterate that all my worldly
possessions pass to my brother James Michael Aldrich, 2250 S. Palmetto,
S. Daytona FL 32119.

With her agreement I name Sheila Aldrich Schuh, my niece, as my
personal representative, and have assigned certain bank accounts to her
to be transferred on my death for her use as she seems [sic] fit.

The “Just a Note” “addendum” was signed only by Ann Aldrich and
Sheila Schuh, James Aldrich’s daughter.  The document was legally
ineffective as an amendment (“codicil”) to Ann’s April 5, 2004 Will,
because it had only one witness, and Florida law requires two witnesses
to a testamentary instrument.

The Probate Court held that James succeeded to the property which Ann
had inherited from Mary Jane, but the Florida Court of Appeal
reversed.  The Supreme Court of Florida had no doubt that Ann intended
that James receive the property which she had inherited from Mary Jane.
But Ann had failed to express that intent in a legally effective
testamentary document.  As a result, the Supreme Court of Florida held,
and properly so, the property which Ann inherited from Mary Jane passed
to James Aldrich, Laurie Basile, and Leanne Krajewski, according to the
Florida statute of intestacy.

There is a common aversion to using lawyers.  Justice Pariente, in
her concurring opinion, aptly described this as “penny-wise and
pound-foolish” in Ann Aldrich’s case.

Of course using a lawyer is no guarantee of competence.  Many years
ago, clients of mine were alarmed to learn of a probate estate opened
for their father by a woman claiming to be his widow.  Investigation
revealed that a marriage had indeed been solemnized between them.  The
woman was many years the man’s junior, and had entered his life as a
live-in housekeeper, after the death of his first wife, my clients’
mother.  The man left a will, drawn by his second wife’s attorney,
bequeathing his “business” to his sons, and the balance of his property
to the woman.  The business was a corporation, and it operated on land
which the man owned in his name, i.e., which had not been conveyed to
the corporation. The testator probably intended the bequest to his sons
to include the land, but the matter was not free of doubt.  Fortunately,
the sons reached a settlement with the woman which allocated the
business real property, with the business, to the sons.

It is important that you not only have estate planning documents, but
that you review them and ascertain that they competently, effectively
dispose of your estate according to your intentions.