I wanted to share a couple of problems
which came across my desk recently which serve as warning signs to people
who attempting to prepare their own Wills, either handwriting them out or using software that purports to handle these types of documents. Both of these were prepared and executed by people
on their own without legal counsel.
The first was a Will that by and large was correct in the body of the Will.
However, when it came to the signatures, I found a problem. In Texas, a
typewritten Will (which this was), has to be signed by the Testator (the person creating the Will) and witnessed
by two individuals above the age of 14. Texas also has a provision where the
Testator and the witnesses can sign what is known as a "self-proving
affidavit," which allows the Will to be probated without the necessity of
the witnesses having to come to court and give testimony that they were present
when the Testator signed the Will, that the Testator was above the age of 18
and of sound mind, etc.
Unfortunately in this situation, the Testator signed the Will and the
self-proving affidavit, but the witnesses only signed the affidavit--there were
not even any signature lines for the witnesses on the Will (I will add here
that the Testator who prepared the Will was a patent attorney, which only goes
to prove that lawyers are their own worst clients). Prior to 1991, this would
have rendered the Will completely invalid. Fortunately, Section 59 of the Texas
Estates Code was changed in 1991 to provide that in this type of situation, the
witnesses' signature to the affidavit will be considered a signature to the
Will if necessary to prove that the Will was signed by the Testator, but the
Will can no longer be considered self-proven, meaning that either one or both
of the witnesses to the affidavit will have to give testimony in court as to
the execution of the Will, or two witnesses will be needed to prove up the Testator's
handwriting.
Moral: Make sure that you have the Testator and
the witnesses sign not only the Will, but also the self-proving affidavit.
Added notes: make sure the witnesses are over the age of 14, and not related to
the Testator or a beneficiary under the Will.
Second problem I encountered:
A gentlemen died with an estate of approximately $2 million. His son brought me
the Will, which had been prepared by his father, using forms he had cobbled
together from form books and other people's Wills, apparently.
Dad's first wife
had died and he subsequently remarried, so he wanted to make some provisions
for the second wife, who did not get along at all with Dad's children. Dad
started out by making some specific bequests worth about $250,000 to his children.
In the next Article, he left "all my remaining property in trust
for my wife for her lifetime." The rest of the Article provides the terms
of the trust, which on termination was to be paid to her estate (note: doing
this would certainly cut his children off from this share of his estate, since
it is very unlikely she would leave any of this property to Dad's children).
The next Article is where things get unusual. It provided that he left "all the rest and remainder of my property to my children in equal
shares." He now has created, in effect, two residuary clauses leaving all
his property in very different ways. It is painfully obvious that he had no
idea what he had written and the amount of conflict and confusion that would
cause.
It was unclear who was to receive the residuary estate, so we had to file what is known in Texas as a Petition for Declaratory Judgment with
the probate court to have the court determine who the proper recipient of the
residuary estate will be.
Sometimes, in a case like this, you could go back to
the attorney who drafted it and ask: What happened here? What did you mean?
What do your notes say? Such extrinsic evidence would normally be admissible if
the intent cannot be gleaned from the plain reading of the Will. However, in
this case, the drafter of the Will was the Testator, and his intent died with
him, so we will have to resort to other means to determine the ultimate
beneficiaries.
Moral: Don't
be penny wise and pound foolish when it comes to drafting such an important
document such as your Will. Get competent legal counsel to help in drafting
your documents--and don't forget to read what they have drafted! Ask
questions--what does this mean? Show me the Articles where the property gets
distributed. What happens is this person does not survive me? You've worked
hard to acquire your assets. Don't inhibit your plans for these assets with
second-rate software where you can draft your own Wills or with attorneys whose
specialty is not in the estate planning area.
