The pitfalls of homemade estate planning

A lot of people try to save money with do it yourself will kits and holographic wills.  The old adage, "Penny wise, pound foolish" is particularly applicable to estate planning. For example, I was involved in a will construction case where the decedent left a confusing holographic will.  That gentleman saved himself several hundred dollars by not hiring a lawyer to draw up a simple will. But his estate was diminished by tens of thousands of dollars when a will construction suit was filed.

This decision by the Texarkana Court of Appeals is a prime example.  Mr. Dillard executed the following instruments:

There were four purported wills or codicils of the decedent tendered for probate in the estate of Bobby Wayne Dillard as follows:

1. A fill-in-the-blanks form will dated April 30, 2002. In this, the testator devised all of his estate to his wife, Patricia F. Dillard. This will was witnessed by Joe Shumate and Kimberly D. Jones; although the form will had a self-proving clause, no notary signed in the provided space.

2. A holographic will dated September 9, 2002. ⁽¹⁾ The devisee in this will was Traci Renee Dillard, the testator's daughter, provided she survived him in death by thirty days; if she did not survive him for that period, then the contingent beneficiaries were his children who survived him, in equal shares, with the provision that if none survived him, then his estate would pass to the descendants of his children per stirpes and if there were none, then to his heirs at law.

3. Another holographic will dated July 7, 2004, which purported to devise his entire estate to his wife, Patricia, if she survived him in death by thirty days and naming his grandson, Dalton Ray Dillard, as the contingent beneficiary in the event that she did not so survive.

4. A codicil dated February 20, 2005, this being a codicil to the original will dated April 30, 2002. This codicil changed the identity of the independent executor from the decedent's brother, Richard Alan Dillard, to Elton Woodall and contained the following: "In all other respects I ratify and confirm all of the provisions of my said will dated the 30th day of April, 2002." This codicil was witnessed by two witnesses and contained a properly executed self-proving clause. 

The court of appeals affirmed the trial court's ruling admitting the September 9, 2002 holographic will to probate. Did Mr. Dillard really want that result?  Nobody will know for sure. I am certain the costs of the dispute ended up costing a whole lot more than an estate planning attorney would have charged him.

Comments

[belicoso]

People tend to take a short-sighted view of legal services and only worry about what the attorney will cost them at that time. The smarter way to look at it is from a long term point of view and try to see what the legal services will save for you and your family in the way of avoiding litigation in the future. This niche industry of "ready made legal forms" is a dangerous one and while it may help some people, it leaves the door open for people with real attorneys to dispute the ready-made documents. On the other hand, even the most well executed estate planning does not eliminate the possibility of litigation. High profile cases like that of Anna Nicole Smith in her bogus estate claim against the estate of her husband J.Howard Marshall. Marshall had more than adequate estate planning documents in place to omit Anna from his will but she disputed it for over a decade up until her death. When it comes down to it, people are better off getting a competent attorney to plan their estate but even then the smoothness of the transition depends on the integrity of the survivors.

[J. Michael Young]

Belicoso, you make some good points. Even the most careful planning can't completely foreclose a challenge from a disgruntled heir.

However, the odds of a challenge increase dramatically with a holographic will or a form executed without the assistance of an attorney. Most people fail to appreciate that how a testamentary instrument is executed can be as important as what is written on the paper.

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