By Stephen J. Dunn
On April 5, 2004, Ms. Ann Dunn Aldrich wrote her Will on an “E–Z Legal Form.” In Article III, entitled “Bequests,” just after the form’s pre-printed language “direct[ing] that after payment of all my just debts, my property be bequeathed in the manner following,” she hand wrote instructions directing that all of the following “possessions listed” go to her sister, Mary Jane Eaton:
—House, contents, lot at 150 SW Garden Street, Keystone Heights FL 32656
—Fidelity Rollover IRA 162–583405 (800–544–6565)
—United Defense Life Insurance (800–247–2196)
—Automobile Chevy Tracker, 2CNBE 13c916952909 —All bank accounts at M & S Bank 2226448, 264679, 0900020314 (352–473–7275).
Ann also wrote: “If Mary Jane Eaton dies before I do, I leave all listed to James Michael Aldrich, 2250 S. Palmetto 114 S Daytona FL 32119.” The Will contained no other dispositive provisions. It was was duly signed and witnessed.
Ms. Eaton died three years later, survived by Ann. Mary Jane left Ann a substantial amount of cash and land. On October 9, 2009, Ann Dunn Aldrich herself died, not having revised her Will to dispose of the inheritance she had received from her sister.
Article III of Ann’s Will made specific bequests of the property which Ann owned on the date she executed her Will, but was silent as to the property which Ann later inherited from Mary Jane. Moreover, Ann’s Will lacked a residuary clause (“I devise and bequeath and all of the rest, residue, and remainder of my property to ___________”). It was thus unclear who would succeed to the property which Ann inherited from Mary Jane. Ann’s brother James Aldrich argued that under Article III of Ann’s Will he was entitled to the property inherited from Mary Jane. Laurie Basile and Leanne Krajewski, Ann’s nieces and the daughters of Ann’s predeceased brother, asserted that Ann’s Will failed to effectively dispose of the property inherited from Mary Jane, and thus that such property passed pursuant to the Florida statute of intestacy. Under the Florida statute of intestacy, that property would pass one-half to James and one-quarter each to Laurie Basile and Leanne Krajewski.
James Aldrich secured appointment as Ann’s personal representative of Ann’s estate. He petitioned the Probate Court to determine who was entitled to the property inherited by Ann from Mary Jane. The testator’s intent controls interpretation of a will. But that intent can only be divined from the four corners of the will; courts do not consider extrinsic evidence of testamentary intent.
Ann’s April 5, 2004 Will was found among her papers after her death. Also found among Ann’s papers was a document dated November 18, 2008, and entitled “Just a Note.” The latter document was in Ann’s handwriting and provided:
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.
With her agreement I name Sheila Aldrich Schuh, my niece, as my personal representative, and have assigned certain bank accounts to her to be transferred on my death for her use as she seems [sic] fit.
The “Just a Note” “addendum” was signed only by Ann Aldrich and Sheila Schuh, James Aldrich’s daughter. The document was legally ineffective as an amendment (“codicil”) to Ann’s April 5, 2004 Will, because it had only one witness, and Florida law requires two witnesses to a testamentary instrument.
The Probate Court held that James succeeded to the property which Ann had inherited from Mary Jane, but the Florida Court of Appeal reversed. The Supreme Court of Florida had no doubt that Ann intended that James receive the property which she had inherited from Mary Jane. But Ann had failed to express that intent in a legally effective testamentary document. As a result, the Supreme Court of Florida held, and properly so, the property which Ann inherited from Mary Jane passed to James Aldrich, Laurie Basile, and Leanne Krajewski, according to the Florida statute of intestacy.
There is a common aversion to using lawyers. Justice Pariente, in her concurring opinion, aptly described this as “penny-wise and pound-foolish” in Ann Aldrich’s case.
Of course using a lawyer is no guarantee of competence. Many years ago, clients of mine were alarmed to learn of a probate estate opened for their father by a woman claiming to be his widow. Investigation revealed that a marriage had indeed been solemnized between them. The woman was many years the man’s junior, and had entered his life as a live-in housekeeper, after the death of his first wife, my clients’ mother. The man left a will, drawn by his second wife’s attorney, bequeathing his “business” to his sons, and the balance of his property to the woman. The business was a corporation, and it operated on land which the man owned in his name, i.e., which had not been conveyed to the corporation. The testator probably intended the bequest to his sons to include the land, but the matter was not free of doubt. Fortunately, the sons reached a settlement with the woman which allocated the business real property, with the business, to the sons.
It is important that you not only have estate planning documents, but that you review them and ascertain that they competently, effectively dispose of your estate according to your intentions.