Every once in a while there is an unfortunate case of somebody making a mistake when attempting to prepare their own Will. A recent case in Florida has been reported, quite literally, thousands of times through different law blogs as a “cautionary tale” of how things can go badly wrong when you try to prepare your own Will. You can look up the case of “Aldrich v. Basile” and you will see about 100,000 results with headings like
“Case Illustrates Dangers of Executing a Will Without Legal Assistance”
“Do-It-Yourself Wills: Cheap Now, Expensive Later?”
“Why Preprinted or Online Legal Forms Are Not Advisable”
I’ll explain my position on this very sad situation by firstly summarizing exactly where Ms Aldrich went wrong. In an E-Z Will kit form she listed some specific assets to go to her sister and if the sister were to predecease her, the list of assets would go to her brother. Then a few years later her sister died, so she updated that Will with a handwritten note that stated;
This is an addendum to my will dated April 5, 2004. Since my sister Mary jean Eaton has passed away, I reiterate that all my worldly possessions pass to my brother James Michael Aldrich, 2250 S. Palmetto, S. Daytona FL 32119.
There were two issues; firstly her original Will only covered the list of assets, not everything else. However, even though the handwritten update covered “all my worldly possessions” it was only signed in the presence of one witness not two and so was not accepted by the courts.
With respect to the first error, this is unfortunately a limitation of blank form kits, and this is why we steer people away from them – It is easy to forget things. It is important to not confuse a blank form kit with a fully interactive service that guides you through the process and checks for errors. When a person makes a mistake with an E-Z Will kit form it is a warning bell for using this type of form, not for trying to prepare one’s own Will using interactive software. If you use a service like ours this mistake is absolutely impossible to make.
But I personally feel that the second error reflects badly on the Florida Supreme Court. In their ruling the judge stated that
Unfortunately, I surmise that, although this is the correct result under Florida’s probate law, this result does not effectuate Ms. Aldrich’s true intent. While we are unable to legally consider Ms. Aldrich’s unenforceable handwritten note that was found attached to her previously drafted will, this note clearly demonstrates that Ms. Aldrich’s true intent was to pass all of her “worldly possessions” to her brother, James Michael Aldrich
Thankfully an increasing number of jurisdictions have introduced laws that try to respect the intent of the testator and they will not allow true intent to be over-ruled by a technicality. In this case, everybody knows what Ms Aldrich meant, everybody knows what she wanted, but the lawyers and the courts successfully managed to throw this out. The court declared that Ms Aldrich had died without a Will and gave a share of the estate to her nieces according to intestate law.
The judge actually stated that she was deciding the case contrary to the testator’s “true intent”, Ms Aldrich did not want any of her estate to pass to her nieces, they were never mentioned in any of her documents. One legal blogger was very critical of the decision claiming that;
Apparently, the court wished to inflict post-mortem punishment on the testator for engaging in DIY estate planning….The court blamed the “unfortunate result” on the fact that Ann did not seek legal assistance in creating her estate plan.
So now to the reaction and estate planning lawyers are collectively rubbing their hands with glee and providing all kinds of examples of why trying to prepare your own Will is a mistake. Like this one
A lot of times clients come in saying they want something very simple,” says Rubin. “But then you find out their daughter had a baby by artificial reproductive technology. If the definition of ‘child’ in your will isn’t up-to-date, you could disinherit your grandchild.
The claim is nonsense. This clearly does not happen “a lot of times” and perhaps the conclusion should be that if this situation does not apply to you, you can safely go the “do-it-yourself” route.
They then go on to say
These are the conditions each state requires for a will to be considered valid. The standard in Florida is two witnesses.“Every state has its own quirky rules,” cautions Rubin
Actually…it’s not that quirky, every single state requires two witnesses. Across the internet, the scaremongering goes on with countless obscure examples of how attempting to prepare one’s own Will is going to lead to trouble. As an aside, the vast majority of challenges are to Wills prepared by estate planning lawyers but we rarely see “a cautionary tale for what can happen if you use a lawyer to prepare your Will”.
The fallout of this unfortunate case leads me to the following recommendations;
Do not be scared off from preparing your own Will. It isn’t as complicated as some people want you to believe. If you have a complicated family situation then you need legal advice, but most people do not. From time-to-time there will be an article in the media about somebody who made a mistake with a Will kit. This does not mean that preparing your own Will is a bad idea. Over 65% of people do not have an up-to-date Will in place, and many of these are under the mistaken impression that you must use a lawyer to prepare a Will. You should take things into your own hands and make sure that your Will is in place.
Do not use a blank do-it-yourself Will kit, there is a very significant likelihood that you will make a mistake or not cover all situations that need to be covered. Blank forms have way too many spaces that have to be completely correctly. When you see a Will completed through our service you can appreciate how complicated the document can be, with various trust clauses and powers to the Executor. If you do not have a legal education you would not be able to create a well drafted Will using these kits.
Do not use a handwritten note to express your wishes; it opens your estate up to challenges and it may not fulfil the requirements of a Last Will and Testament or Codicil.
Do not use a Codicil to make an update to a Will. Just create a new Will. If you use an online service like ours, you can just login, make the change and print off a new Will. It’s easy.
I just wish that common sense would have prevailed and that the courts would have respected the final wishes of Ann Aldrich. It’s a real shame that they wouldn’t.
Tim Hewson is the President and Founder of the LegalWills group of companies. Offering online interactive estate planning services through LegalWills.ca, USLegalWills.com and LegalWills.co.uk. Founded in 2001, these services have become market leaders helping hundreds of thousands of people prepare their important legal documents.