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Pittfalls of Homemade Wills


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Issues, Problems, and Pitfalls of Handwritten Wills, Preprinted Forms, Will Preparation Software, and Statutory Forms

Persons who create their own Will often set the stage for a drama that can only be played out in a high stakes courtroom battle. Any cost savings achieved by avoiding legal fees in preparing estate planning documents is far outweighed by the costs associated with unintended consequences and potential litigation. Generally, the issues that arise out of these types of Wills include:

1) Searches to locate the Will;
2) Unintended Consequences;
3) Unintentionally disinheriting family members;
4) Increases in or paying unnecessary estate taxes;
5) Invalid or ambiguous gifts;
6) Significant omissions related to the administration of your estate; and
7) Costly and protracted litigation.

In the words of many commentators, legal professionals, and even poets, homemade Wills – whether created by form, software, or handwritten – constitute a prolific source of litigation, family disputes, and increased costs for estates. Save time and money for your family and friends, have an experienced attorney prepare your estate planning documents, including a Will.

Types of Wills in Texas

Several types of lawful and valid Wills may be created in Texas to dispose of your property upon your death. Wills may be 1) holographic – wholly in the handwriting of the Testator, 2) formal or attested – typewritten and signed with all required formalities by the testator and witnesses; or 3) nuncupative – a special type of oral Will to dispose only of limited types of personal property.

Typewritten and holographic Wills are the most common. Several scholarly articles suggest that typewritten Wills fail because they do not meet requisite formalities. The courts and reporters also tell us that Testators have successfully created holographic Wills on furniture, walls, pieces of gypsum board, the fender of a car, envelopes, and handbags. While holographic Wills may be entertaining and created with relative ease, they may actually accomplish little to nothing and lead to costly and protracted litigation.

Searches to locate the Will

Finding any Will can present a challenge for family and friends. Finding a holographic Will can present special challenges. In the case of most self prepared Wills there will be no letters from attorneys, no formal ceremony to sign the Will, and no instructions regarding the storage of a Will in a safe location or in the county records, and no other documents to aid family and friends in determining the location of the Will. In one example, a Testator told certain persons that he had made a Will. Upon his death, family and friends went to his farm home to look for the Will. After a diligent and lengthy search, the family and friends decided to inspect the buildings on the farm much closer. After tearing out the floor to the chicken barn, a safe deposit box key was found inside a series of glass jars. Armed with the key, they searched the local banks for a matching safe deposit box. A matching safe deposit box was opened and the Will was found. The Will was short and to the point. After providing language similar to “This is my Will,” there was one additional statement – “The key to my safe deposit box is hidden under the floor of the chicken barn.” Nothing more was accomplished with the Will.

Unintended Consequences

Making family and friends search for a Will certainly seems to be an unintended consequence. Attempting to create a valid Will may create other more costly unintended consequences. No person writing his own Will would intend to create or require a court battle to determine whether the document that he created was in fact a Will. However, this has been the case is several estates. Court determinations are required because a lawyer can only predict whether the court might find a Will to be valid; only the court can say whether the Will is valid. Consequently, at the minimum, costly hearings may be required and maybe even a trial to determine whether a document is a Will or whether it is a valid Will.

Wills may seem that they provide for what a Testator wants, but they can result in unintended consequences. Consider a Testator with a son who is married with children. The Testator provides in his Will that his son shall receive his property and that if his son predeceases him that his son’s children receive his property. The son’s wife receives nothing and this may have been intended. The unintended consequence is the creation of a court-supervised guardianship for the son’s minor children.

Unintentionally Disinheriting Family Members and Friends

Family members and friends can be unintentionally disinherited in several ways. A few examples include:

1) Serving as a witness to a Will;
2) Making a gift of all property to a spouse; and
3) Making a gift of all property to a child.

Serving as a witness to a Will

Under what is commonly referred to as the interested witness statute, family members and other persons receiving gifts under a Will may be effectively disinherited by signing the Will as witness. Generally speaking, most people know that persons receiving gifts under a Will should not be a witness to that Will because the gifts to a witness are generally void. While Texas law provides limited exceptions to this rule, a witness attesting a Will where they are a beneficiary almost certainly has a high probability of resulting in litigation. Some legal commentators have concluded that even a dumb lawyer knows that beneficiaries named in the Will should not serve as attesting witnesses; and, therefore, the interested witness statute is merely a trap or common pitfall for lay persons who do not have an attorney’s assistance in preparing and executing their Wills.

Making a gift of all property to a spouse

Specific gifts to friends and charities that were once appropriate may also work to effectively disinherit beneficiaries. Assume that testator had an estate valued at $1,000,000 and made general bequests to charities totaling $200,000 in his Will. After making this gifts assume that he devised the rest of his estate or residue to his family. Upon his death, assume that he had incurred additional liabilities and expenses related to health care, and as a result the estate has decreased in value to $200,000. Ignoring insolvency issues, administration costs, and other issues, the size of the estate has shrunk; the charities are entitled to the $200,000. Consequently, there is no residue; the family is left with nothing and effectively disinherited.

Making a gift of all property to a child

Prior marriages and children of these marriages present special issues. In an example of how these children can be disinherited, assume that the Testator and his wife each had children prior to their marriage and in his Will, the Testator makes a gift of all his property to his Wife. Upon his death, the wife has everything. If she dies intestate, without a Will, or unless her Will states that her spouses children of a prior marriage receive gifts, they will take nothing from his estate. The Testators children of his prior marriage are disinherited.

Ambiguous gifts

Many married persons make a gift of a majority of their property to their spouse. A phrasing of such a bequest might be “I give all of my property to my wife, and when she passes away my children shall receive whatever is left for their benefit.” This phrase, while possibly well intentioned, is ambiguous; we don’t know whether the wife takes all of the property outright or merely has the right to use it for the rest of her life. If she gives away the property to her best friend, what do the children receive? It is possible that a trust may be created when words such as “for the benefit of” are used. Is a trust created? These types of questions may need to be resolved in expensive court proceedings.

In Ihl v. Oetting, 682 S.W.2d 865 (Mo. App. 1984) a Testator provided that his home was to go to Mr. and Mrs. Wendell Richard Hess, or the survivor of them, presently residing at No. 17 Barbara Circle. At the time that the Will was made, Mr. Hess was married to Glenda, who he later divorced. Following this divorce, Mr. Hess married Verna. When the Testator died, Verna argued that she met the description of “Mrs. Wendell Richard Hess.” However, Verna never resided at No. 17 Barbara Circle and Glenda was no longer “Mrs. Wendell Richard Hess.” The court found a latent ambiguity and decided that Glenda should receive the property given her shared interest in antiques with the Testator.

In a final example, a judge provided in his Will that one person received 80 acres of a farm and another person received the remaining 140 acres of the same farm. The ambiguity is which 80 acres does the first person receive? Smith v. Burt, 57 N.E.2d 493 (1944) (explaining that neither person was allowed to choose any acreage, and holding that each person owned a fractional share as a tenant in common with the other party).

Increases in or paying unnecessary estate taxes

Most people receive fragments of information during their lives, and they use this information to make important decisions regarding their estates. A common example of one of these fragments of information is that life insurance proceeds are not taxed. While this is generally correct with regard to income taxes; it is incorrect with regard to estate taxes. If a life insurance policy has any incidents of your ownership the proceeds are includable in your estate. If these proceeds cause your estate to exceed the applicable exemption equivalent, $2,000,000 in 2006, your estate will be subject to estate taxes. Estate taxes are expensive; every dollar over the exemption equivalent is taxed at a rate of nearly 50%. Consequently, your estate may be paying unnecessary estate taxes and your beneficiaries may not receive the property that you intended.

In addition to living on fragmented information, most married persons do not appreciate the probability of their deaths being either simultaneous or close in time to each other. Giving all property to your spouse in a Will may also cause thier estate to pay substantial estate taxes, especially where spouses pass away within a short time of each other. This common pitfall may cause the value of the spouse’s estates to be added together and possibly subjected to estate taxes.

Significant Omissions Related to the Administration of your Estate

Most persons know that they should probably name an executor to handle their estate. However, the mere naming of an executor might not create an independent administration and failing to provide special language to create an independent administration, can lead to costly administration. If a court were to find that your Will failed to create an independent administration, your estate could be subject to a costly court-supervised dependent administration. Special language should be included in most Wills that gives an executor the power to sell property of the estate without court approval and allows him to serve without having to post a costly bond.

Costly and Protracted Litigation

Even if the Will accomplishes nothing with regard to disposing of an estate, homemade Wills and other documents are not made without creating other risks, particularly, the risk of significant litigation. In the somewhat famous Texas case of Boyles v. Gresham, 153 Tex. 106, (Tex. 1954) the Testator drafted a document that was offered as his holographic Will. He was a business man apparently in poor health. During this time, he wrote a document, wholly in his handwriting, where he discussed things that may or should happen if he passed away. After he passed away, an alleged friend and business associate offered the document in an Application to Probate Will(sample). A Will contest was filed and litigation followed. Here is the story according to the Courts. Notoriously, it begins with the unedited document:

Terrell Tex Jan 12 – 1950

this Letter is Written With the idea that Some thing might happen to me. that I would be wiped out Suddenly if this Should Happen my business would be in awful shape no relatives, nobody to do a thing So, this is written to try to have my affairs wound up in a reasonable way in case of my Sudden Death. Would Like to have all of my affairs, Cash all assets including any Bank Balance turned over to Parties named below With out any Bond or any Court action that can be avoided. they to wind up my affairs in any way they See fit. U.C. Boyles Refrigeration Supply Co Charlie Hill Superior Ice Co Should these Gentleman need a third man Would Suggest Walker. National Bank of Commerce Each of these Gentleman to Receive $ 500.00 for his Services I have tried to make my wishes plain. of Course these Crooked Lawyers Would want a Lot of Whereas and Wherefores included in this. not much in favor of the organized Charities they are too Cold blooded also not much in Favor of any person over 21 -- Benefitting by my Kick off unless there is a good reason am inclined to play the children they are not Responsible for being here and Cant help themselves

Terrell -- Feb. 7 -- 1950 have Let this Letter get cold and Read it again -- to See if it Seemed abut Right dont See much wrong except no wheres an Wherefores -- excuse me

Lon Gresham

The case originated in the County Court as an application by U. C. Boyles to probate this document as the Will of Lon Gresham. Mr. Boyles was a business associate who had cared for Lon Gresham in his last illness. The application was contested by Arch V. Gresham who alleged that he was the son and sole heir of Lon Gresham. The County Court ruled against Arch and admitted the Will to probate. This decision was beginning of a lengthy and costly appellate process.

Arch Gresham appealed the admitting of the Will to Probate to the District Court. The District Court decided that the document was not a Will and refused the application to probate it as such. Mr. Boyles appealed this decision to the Court of Civil Appeals who agreed with the District Court and refused the application to probate. These courts observed that the document did not make any gifts of property to anyone. They reasoned that the document could not be a Will because it did not make a testamentary disposition of property; i.e., the Will did not make gifts of property. Unsuccessful in these lower court appeals, Mr. Boyles then appealed to The Supreme Court of Texas.

Mr. Boyles found success at The Supreme Court of Texas. The Supreme Court ultimately concluded that a document or a letter such as one written by Mr. Gresham did not have to make a “testamentary disposition of property” to be a Will. After clarifying this point of law, the Supreme Court reversed the judgments off the District Court and the Court of Civil Appeals and remanded the case to the District Court for trial. Following a trial, The District Court decided that the document was a Will and that the Will named Mr. Boyles as Independent Executor; however, the Will did not make any gift of any property whatsoever.

If you found this legal battle between Mr. Boyles and Arch Gresham a bit appalling, consider what happened next. After the Supreme Court remanded the case to the District Court, a new round of litigation started. At the conclusion of the second trial the Will was admitted to probate and U. C. Boyles was appointed independent executor. Arch Gresham was apparently not pleased with this result; he appealed the appointment of Mr. Boyles as independent executor, claiming that Mr. Boyles was unsuitable. The Court of Civil Appeals agreed with Mr. Gresham and found that Mr. Boyles was an unsuitable person to serve as Independent Executor and remanded the cause to the trial court for further proceedings. Mr. Boyles, obviously not pleased with this decision, appealed again to the Supreme Court of Texas.

In this second trip to the Supreme Court of Texas, several interesting facts were reported from the proceedings in the lower courts. First, the evidence presented by persons that had no interest in the property of Mr. Lon Gresham’s estate showed that Mr. Boyles and his wife had been kind to Mr. Gresham in his old age. Further, there was evidence that Mr. Gresham had “adopted” and loved Mr. Boyles and his wife. Finally, it was reported that Mr. and Mrs. Boyles had cared for Mr. Gresham during his illness and had been a “family” to him.

In addition to evidence provided by these disinterested persons, Mr. Boyles had also testified. According to the Court, he stated that Mr. Gresham “owed him something.” Mr. Boyles admitted that he had not attempted to estimate the exact amount that he was owed, but it was at least part of the estate. Also there was at least some issue as to whether Arch V. Gresham was actually a son of Lon and that Mr. Lon Gresham had no family. Consistent with this position, Mr. Boyles stated that he did not know Arch. However, after hearing evidence, a jury in the lower courts determined that Arch Gresham was in fact the son of Lon Gresham. When questions involved an envelope that contained cash and was marked with the word “boys,” Mr. Boyles claimed that Lon Gresham intended that the money in the envelope belonged to him or his boys. Finally, Mr. Boyles also testified that he had ideas as to how Mr. Gresham wanted his property disposed of. Of course, Mr. Boyles claimed that Mr. Gresham wanted part of the property to go to him. After reviewing these facts and the claims of Mr. Boyles to the property of the estate of Lon Gresham, the Supreme Court of Texas reversed the judgment of the Court of Civil Appeals and affirmed the decision of the trial court that Mr. Boyles could serve as executor.

Several observations may be made after examining the above-discussed materials and the Lon Gresham story:

Using self-help to create legal instruments may lead to costly litigation. In this case, a document was found to be a valid Will; the same has been true of Wills created on pre-printed forms. Thus, a Will can be created using these tools. However, use of these free or low cost forms does not come without additional risks, particularly the costs of litigation. Consider that the case above was litigated and appealed to the State Supreme Court on two separate occasions. Today, the minimum costs for this type of litigation could cost tens of thousands of dollars.

Never underestimate what people will do when they have the opportunity for financial gain.
Imagine the story of Mr. Boyles. Did Mr. Gresham intend to pay him for caring for him, his wife, or give money in an envelope to his “boys?” We may never know. However, he clearly claimed that Mr. Lon Gresham “owed him something.”

It may be strategic and extremely valuable for your heirs at law to contest any document purported to be a Will, despite the costs. Note that the parties to the lawsuit discussed above were a business associate of Lon Gresham and Lon’s Gresham’s son. The business associate, U. C. Boyles obviously took some position that Lon intended to give him property under the “Will.” If U.C. Boyles had succeeded, Lon’s son, Arch Gresham would receive nothing under the Will.

Arch Gresham’s only strategy at this point is to contest the Will. If the Will fails or is not otherwise a “lawful and valid Will,” he will inherit by the Texas laws of Intestacy as the son of Lon Gresham. Given the apparent wealth and extent of the father’s business assets, he had little, if nothing, to loose in litigating the Will.

Any document can be offered as a Will with a properly prepared Application for Probate. The case above should make it clear that a poorly written letter, riddled with conflicting statements, spelling errors and many ambiguities can be offered and ultimately determined to be a Will.

Letters or a document drafted by you personally and intended to be your “Will” may or may not meet the requisites to create a valid Will in Texas or other states. Again, obviously the Courts struggled with this letter. Ultimately, upon receiving instructions from the Supreme Court of Texas, and after two trials, the District Court decided that the document was a Will but it did not make any disposition of Mr. Lon Gresham’s property.

Your children may fight over your property. In the case above, Lon’s son was fighting someone that was not one of his siblings. Would he have fought with one of his siblings? No one knows. However, consider this, a majority of our clients tell us something like: “my children are great and successful. I have instilled them with my high standards, morals, and values; they never fight.” Nothing could be further from the truth, especially after you are gone. Let’s face it – Did your children ever fight, cry, or protest when one of them perceived that he received less than the others? Sure they did! Whether it was candy, ice cream, a toy, or riding by the window in the family car – some of them, possibly not your children, but some children will do the same with regard to your property.

The popular adage that you must do two things during your life – pay taxes and die may be true. However, one thing remains following your death – the litigation of your estate! Your estate can be wasted with litigation. It has been well established in the courts by cases such as this that Testators who draft their own Wills lead to disputes that may only be settled through costly litigation. This case went to trial, was heard again at the appellate court, and was appealed to the Supreme Court of Texas. The least costly approach for this type of case today could cost tens of thousands of dollars in trial costs and appeals.

While the majority of this discussion is directed to holographic wills, other examples of cases related to Wills prepared on pre-printed forms, statutory forms, and with software include: In re Estate of Johnson, 630 P.2d 1039 (Ariz. Ct. App. 1981); In re Estate of Mulder, 765, P.2d 997 (1988); In re Will of Smith, 108 N.J.257 (1987); Kimmel’s Estate, 278 Pa. 435. Documents prepared in this manner are often contested and fail to meet the formal requirements of a Will. Most often they fail because they were improperly executed or otherwise failed to meet the formalities to create a valid Will.


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