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Vegemite Redux?

Vegemite Redux?

In the intersection of two common themes here (Australian probate craziness and the danger of DIY wills), a terminally ill Australian woman filled in a DIY will while (whilst?) at the hospital. The will was only four pages long, but had multiple pages of attachments addressing her wishes from who would receive her house (apparently multiple charities depending on her thoughts at the moment) to who would receive her step ladder, cow bell, and scrapbook items. The Australian court admitted the will to probate, but the future interpretation and litigation will incur tens of thousands dollars in legal fees for her estate.

A few low hanging points:

1. The cost of attorney fees for preparing a will properly is minor compared to the costs of fixing a will that was not prepared properly.

2. The larger intangible cost for this woman is that her assets might not be distributed to her preferred charities/individuals and under the terms she truly wanted.

3. Call me unsentimental, but I doubt anyone cares about the step ladder, cow bell, and scrapbook stuff.

Photo Credit:  Zicasso Travel Website/unknown

License:  Fair Use/Education

Between a Rock and Hard Place

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Bill Cornwell lived in a Greenwich Village brownstone with his same sex partner for 50 years. When he died two years ago, his will left the building and all of his possessions to his partner. However, the will was only witnessed by one individual while NY law requires two witnesses. Without a valid will, his estate will pass to his closest living relatives who are his nieces and nephews who recently sold the building for $7 million. The partner has since filed suit trying to prove that he and Mr. Cornwell were actually married, although they were not, so he can be considered the closest heir.

So many points and such short attention spans:

1. All wills require two witnesses not related to the individual and who will not receive any assets under the will.

2. Using a DIY will kit could lead to problems with properly executing wills (among other issues)

3. The legal arguments made by the partner verge on stupid. One of them is that even though they lived in NY, which does not recognize common law marriage, they bought a dog in Pennsylvania in 1991 as a symbol of their commitment to each other and because Pennsylvania used to recognize common law marriage they should be considered as married.

4. The 85 year old partner would be better off dropping the law suit and accepting the offer of the nieces and nephews to live in the apartment for 5 years at a monthly rental of $10 and receive $250,000 upon the sale of the building.

5. The entire problem could have been avoided if they had simply married each other once gay marriage became legal.

6. One niece claimed, apparently with a straight face, that her uncle did not want his partner to inherit or he would have properly executed the will. She also suggested that perhaps the men were just friends or great companions. The address of the rock under which she lives is unknown.

DIY Wills – Pay Me Now or Pay Me Later

A Florida woman saved money on will preparation by using a DIY service titled E-Z Legal Form.  Her will left all of her listed property to her brother.  The will did not have a residuary clause which states who receives all non-listed assets.   Inevitably, she later opened a new account that was not addressed by the will.  She left a handwritten note in which she tried to  to bequeath the account and all of her “worldly possessions” to her brother except for several accounts she wanted to leave to his daughter.  The note was only witnessed by her brother’s  daughter.  Other nieces claimed that they were entitled to a share of the unlisted account because it was not addressed in the will.  The Florida Supreme Court ruled that they were entitled to a share of the unaddressed account under Florida intestacy laws.

Several points:

1.  All wills need a residuary clause to provide who inherits assets not specifically listed.  In fact, in every will I draft the residuary clause is the most important section.

2.  The decedent would have been better served simply by skipping the listing of specific assets and merely having a residuary clause leaving all of her assets to her brother.

3.  A handwritten note with only one witness who is also a potential beneficiary is invalid on its face and is a worse idea than using a poorly drafted form found on the Internet or purchased at Staples.

4.  As the weary mechanic in the Fram oil filter commercials said after performing an expensive engine repair instead of simply replacing an oil filter, “Pay me now or pay me later.”   This decedent would have been better served spending some money on an attorney ($600 is my standard will and power of attorney fee) instead of trying to save a few dollars while incurring thousands of dollars in legal fees in a futile attempt to have her wishes followed.   Plus, I am much more fun to work with than following, perhaps incorrectly, a few prompts in a software program.

 

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All Posts By Jay Brinker

I am an attorney located in Cincinnati, Ohio who practices in the areas of estate planning, probate, asset protection, and small business advice. I make a difficult and bewildering process as simple as possible. Most importantly, I provide "more for less" for my clients.