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Bad Will Hunting

August 15th, 2012

In the course of our discussions with clients, one of the more frequent comments we receive in response to our series of “what if” questions, asking about contingencies to be addressed in case something happens unexpectedly to their intended beneficiaries, is “I never thought of that.” We all assume that mortality events among family members will occur in a predictable pattern, yet our experience has shown us that is not always the case. One of the more frequent estate planning mistakes that we have witnessed in our practice is the failure to address these contingencies in one’s estate planning.

In addition, we’ve also seen a series of cases, some reported in the press, others that we have worked on, where failure to plan, or just plain bad drafting, have led to unintended consequences.  (In cases involving clients of our offices, we have obtained the clients’ permission to describe their cases without any identifying information.)  Join us as we engage in some bad will hunting to review some of these cases.

Anne was an elderly woman who never had any children.  After her husband died, her only living relative was a brother, Bob, whom she apparently did not like very much.  Over a period of 14 years, Anne had a series of four wills prepared.  In one will, she left Bob a modest sum.  In her other three wills, Bob was omitted entirely.  In all four wills, the bulk of her $250,000 estate was left to various charities.

Anne’s first will was revoked when she executed her second will.  Her second will was validly executed and witnessed.  Her third and fourth wills were apparently sent to her by her attorney, who did not supervise her signature of those wills.  On both of those wills, Anne alone signed the wills, without the signatures of two witnesses as required by Maryland law.  Because the third and fourth wills were invalid, Anne’s acts of signing them did not revoke the second will.  Anne did that herself when, in an apparent attempt at being cautious, Anne hand-wrote on her second will that it was void because she had a new (third) will.  Despite her clear intent, and her obvious mistake in revoking the second will, the Maryland Court of Appeals held that the first and second wills were revoked, and the third and fourth wills were invalid.  Because Anne died with no valid will, her entire estate was distributed in accordance with the Maryland law of intestacy to her nearest living relative – her brother, Bob.

Carl was 50 when he divorced.  He married his second wife, Dorothy, at age 60.  Carl died of a heart attack at age 62.  After his death, a former girlfriend, Edna, produced a will of Carl’s that left his entire estate to her.  That will was signed after Carl’s divorce, but before he married Dorothy.  Under Maryland law, marriage revokes an earlier will only if children are born of that marriage.  Because Carl and Dorothy did not have children in their 60s, the will leaving everything to Edna was still valid.  Dorothy was able to claim one-third of Carl’s estate under a Maryland law that prevents one from disinheriting a spouse entirely, but Edna still ended up with two-thirds of the estate and Carl’s children (from his first marriage) got nothing.

Harriet and Irving executed a mutual will in 1974.  A “mutual will” is a single document executed by a husband and wife as the will for both of them.  (The consensus of the bar is that the use of mutual wills is a poor practice.)  The will stated that the entire estate should pass to the surviving spouse in the event of the death of one spouse, and described how the combined estate should pass if the two spouses died simultaneously.  Irving died first, and Harriet died eight months later.  The will never described how their estate should be distributed if they died in succession but not simultaneously.  As a result, the estate passed under the Maryland law of intestacy.  As an aside, we find that married clients (particularly those with young children) focus, sometimes almost exclusively, on how their estates are to be distributed if they die simultaneously, while the statistical probability of two spouses dying simultaneously is very small.

Although the chance of simultaneous deaths between any two people is very small, our next case involves near-simultaneous deaths.  Jane died at age 97.  She had one son, Kenneth, age 77, who never married and had no children.  Jane had a will that left her entire estate to Kenneth, if he survived her.  Kenneth survived her, but only by two days.  Under Maryland law, any gift under a will (except to a surviving spouse) that is conditioned upon survivorship is presumed to mean survivorship by 30 days.  Because Kenneth did not survive Jane by 30 days, the gift to him under Jane’s will was void.  Jane’s will did not specify how her estate should be distributed if Kenneth did not survive her (by 30 days).  Jane’s estate passed under the Maryland law of intestacy.

In all of these cases, the decedent’s presumed intent was either frustrated or unascertained.  In all of these cases, properly drafted and executed documents could have carried out the decedent’s intent.

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