Some Time Off and Some Problems Revisited

I am taking a much needed vacation beginning July 30th and heading to what I hope are the much cooler climates of Colorado for a week. I will not be posting anything in the meantime; however, before I took off, I wanted to share a couple of problems which came across my desk this past week which serve as warning signs to people who are doing their Wills. 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 signed by the Testator 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 there own worst clients). Prior to 1991, this would have rendered the Will completely invalid. Fortunately, Section 59 of the Texas Probate 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 following Article, he leaves "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. He provides that he leaves "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 is now unclear who receives the residuary estate, so we are going to have 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 admissable 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 where 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 speciality is not in the estate planning area.