Dangers of Do It Yourself Wills and Trusts

Will 1. SignIn a previous post, I discussed An Example of What Can Go Wrong When You Make Your Own Will, as well as an article, Consumer Reports: Write Your Own Will? We tested 3 software products that claim to help you do it.

The Florida Supreme Court was recently faced with a similar situation. The deceased used a do-it-yourself Will form. She intended to leave her estate to a brother, but there was a defect in the Will. Because of the defect, her nieces claimed a right to a significant share of her estate. Litigation ensued and the lawyers got rich. In the end, the nieces were awarded the share, even though the court acknowledged that the deceased most likely had not intended that. The share had to go to the nieces because the Will did not meet the formal requirements needed to authorize a different result. (Aldrich v. Basile (March 27, 2014), Florida Supreme Court, Case no. SC11-2147.)

In a concurring opinion, Florida Supreme Court Justice J. Parienta noted:

“While I appreciate that there are many individuals in this state who might have difficulty affording a lawyer, this case does remind me of the old adage “penny-wise and pound-foolish.” Obviously, the cost of drafting a will through the use of a pre-printed form is likely substantially lower than the cost of hiring a knowledgeable lawyer. However, as illustrated by this case, the ultimate cost of utilizing such a form to draft one’s will has the potential to far surpass the cost of hiring a lawyer at the outset. In a case such as this, which involved a substantial sum of money, the time, effort, and expense of extensive litigation undertaken in order to prove a testator’s true intent after the testator’s death can necessitate the expenditure of much more substantial amounts in attorney’s fees than was avoided during the testator’s life by the use of a pre-printed form.

I therefore take this opportunity to highlight a cautionary tale of the potential dangers of utilizing pre-printed forms and drafting a will without legal assistance. As this case illustrates, that decision can ultimately result in the frustration of the testator’s intent, in addition to the payment of extensive attorney’s fees—the precise results the testator sought to avoid in the first place.

Sadly, the deceased had an appointment to see a lawyer about her Will, but put it off until it was too late.

About Helene P. Dreyer Koch

Estate Planning Attorney (Wills, Trusts, Probate) Indian Wells, California * 760.360.2400
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