Why Do-it-Yourself Wills Don’t Work

Why Do-it-Yourself Wills Don’t Work

From time to time, clients have come into our office with wills or powers of attorney they had prepared or printed from an online source.  In most cases we have found that those “do-it-yourself” documents did not achieve the clients’ goals and would likely create expensive disputes upon their deaths.  Two recent court cases point out the importance of having a will drawn with detailed attention to the maker’s intent and with the proper legal formalities.

EXECUTION MATTERS.

An Alabama Supreme Court decision upheld an improperly executed will, but did so only after expensive court action and appeal.   Pickens v. Estate of Fenn, 2017 WL 4324717 (Ala. Sept. 29, 2017)

Donald Harrison Fenn died on June 27, 2016.  Fenn left a will, purportedly executed by him on November 24, 2015, leaving all of his property to Pickens (his live-in nurse assistant during his lengthy last illness) and naming her as his executor.  On July 6, 2016, Jackson B. Dismukes, one of Fenn’s friends, filed a petition for letters of administration, asserting that Fenn had died with assets in Alabama but that he had no will.  On July 7, 2016, Pickens filed a petition seeking to probate the will purportedly executed by Fenn.  Pickens further moved the probate court to revoke the letters of administration it had issued to Dismukes.   

Dismukes argued that the purported will was invalid as it did not contain the signature of a second witness as required by Ala. Code § 43-8-131.  (Mississippi law contains a similar statute describing the formal requirements for execution of a valid will.)  The will contained the signature of one witness as well as that of a commissioned notary who notarized the single witness’ affidavit.   The probate court denied admission of the will, concluding that the notary was acting in her official capacity and not as a witness.

Pickens appealed.  The Alabama Supreme Court reversed and remanded back to the probate court.  The court said that nothing in the plain language of section 43-8-131 prohibits a notary public from serving as a witness; it is not the capacity in which the notary signed that is important but rather that she observed the signing of the will by the testator.  To conclude otherwise would frustrate the statute’s intent to validate wills that meet the minimum formalities of execution.

WORDS MATTER.

Other than improper execution of the will, the use of inappropriate or unintended terms in a last will and testament can thwart the intent of the will-maker.  A Georgia Supreme Court case considered the effect of two words that created confusion and litigation of a last will.   Piccione v. Arp, 2017 WL 4582701 (Ga. Oct. 16, 2017)

Virginia Arp’s last will left the assets of her estate to her four children “per capita.”  The term “per capita” means that the estate is to be divided among those of the same class who survive the will-maker, while the term “per stirpes” means that the share of any deceased member of the class shall be distributed to that person’s children.  Arp’s daughter, Donna Piccione, died in 2006 and Virginia Arp later died in 2013.  Following Arp’s death, the personal representatives divided the estate evenly among her three surviving children. Virginia’s grandchildren and Donna’s surviving children, Gregory and Adam Piccione, filed several claims against their uncles, arguing that they were entitled to a combined one-fourth interest in the estate as Donna’s surviving children.  (Georgia has an “anti-lapse” law similar to Mississippi’s that will, without clear intent otherwise, presume that the bequest is “per stirpes” and leave the share of a predeceased child to that child’s surviving children.) 

The trial court denied the grandchildren’s motion.  The Georgia Supreme Court affirmed this denial on appeal.  The court held that the use of the term “per capita” serves as a clear exception under Georgia’s anti-lapse statute and therefore the Picciones had no property interest to base their claims.

If you are tempted to draft your own will or use an online form – DON’T DO IT!  Call us to help draft your important legal documents to ensure that they will carry out your intent without expensive litigation later.