We have reviewed hundreds of estate planning documents – wills, powers of attorney, trusts – that were based on forms chosen by clients or attorneys, and which failed to accomplish the goals intended by the clients. Clients believed “the cheaper, the better” and sadly found that not to be true. Estate planning and asset protection planning are not merely forms! A recent Mississippi court case shows why it is important to have expert professional help in drafting important legal documents.
Ramon Regan died on April 12, 2011. Prior to his death, Regan resided for about ten years in a personal care home maintained by Swilley and her husband, Elroy. In 2008, Swilley arranged for Susan Beckham, a local notary public, to assist Regan in preparing a will. During the meeting with Regan, Beckham filled out a preprinted form titled “Last Will and Testament” pursuant to Regan’s instructions. Regan then signed the document on February 7, 2008, in front of Beckham, Swilley, W.J. Cameron, and Charlotte Saucier. After witnessing Regan execute the document, Cameron and Saucier also signed the last will and testament in Regan’s presence as his witnesses. The document stated that Regan never married or had any children.
Regan’s last will and testament stated that, upon his death, he wanted to distribute all his estate, including his monetary and real property. However, the document failed to name a beneficiary to whom Regan wished to distribute his property. Swilley asserted that, due to a scrivener’s error by Beckham in filling out the blank form, the document failed to name the Swilleys as Regan’s beneficiaries. Swilley asserted, however, that the document still met the statutory requirements for a will and clearly reflected Regan’s intent to devise or bequeath his property. She therefore argued that the chancellor should consider parol evidence (that is, evidence of a now-deceased person’s statements prior to death) to determine Regan’s intent. By contrast, the Estate contended that the failure to name a beneficiary made it impossible to determine Regan’s intent by reviewing the document alone.
On appeal, the court held that parol evidence may only be used if the language of the document is ambiguous or subject to multiple interpretations, but may not be used to ‘make a will which the testator did not make.’ Here, the court held, the document did not lack ambiguity, it simply failed to list any ascertainable beneficiaries due to poor drafting. As a result, the lower court was correct in refusing to consider parol evidence because the court would have had to ‘insert a beneficiary’s name where the will completely failed to provide one.’ The will was declared to be invalid, which resulted in Regan’s assets passing to his natural heirs at law. Estate of Regan, 2015 WL 1528927 (April 7, 2015).

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