Issues, Problems, and Pitfalls of Handwritten Wills,
Preprinted Forms, Will Preparation Software, and Statutory Forms
Persons who create their own Will often set the stage for a drama
that can only be played out in a high stakes courtroom battle. Any
cost savings achieved by avoiding legal fees in preparing estate
planning documents is far outweighed by the costs associated with
unintended consequences and potential litigation. Generally, the
issues that arise out of these types of Wills
1) Searches to locate the Will;
2) Unintended Consequences;
3) Unintentionally disinheriting family members;
4) Increases in or paying unnecessary estate taxes;
5) Invalid or ambiguous gifts;
6) Significant omissions related to the administration
of your estate; and
7) Costly and protracted litigation.
In the words of many commentators, legal professionals, and even
poets, homemade Wills – whether created by form, software,
or handwritten – constitute a prolific source of litigation,
family disputes, and increased costs for estates. Save time and
money for your family and friends, have an experienced attorney
prepare your estate planning documents, including a Will.
Types of Wills in Texas
Several types of lawful and valid Wills may be created in Texas
to dispose of your property upon your death. Wills may be 1) holographic
– wholly in the handwriting of the Testator, 2) formal or
attested – typewritten and signed with all required formalities
by the testator and witnesses; or 3) nuncupative – a special
type of oral Will to dispose only of limited types of personal property.
Typewritten and holographic Wills are the most common. Several scholarly
articles suggest that typewritten Wills fail because they do not
meet requisite formalities. The courts and reporters also tell us
that Testators have successfully created holographic Wills on furniture,
walls, pieces of gypsum board, the fender of a car, envelopes, and
handbags. While holographic Wills may be entertaining and created
with relative ease, they may actually accomplish little to nothing
and lead to costly and protracted litigation.
Searches to locate the Will
Finding any Will can present a challenge for family and friends.
Finding a holographic Will can present special challenges. In the
case of most self prepared Wills there will be no letters from attorneys,
no formal ceremony to sign the Will, and no instructions regarding
the storage of a Will in a safe location or in the county records,
and no other documents to aid family and friends in determining
the location of the Will. In one example, a Testator told certain
persons that he had made a Will. Upon his death, family and friends
went to his farm home to look for the Will. After a diligent and
lengthy search, the family and friends decided to inspect the buildings
on the farm much closer. After tearing out the floor to the chicken
barn, a safe deposit box key was found inside a series of glass
jars. Armed with the key, they searched the local banks for a matching
safe deposit box. A matching safe deposit box was opened and the
Will was found. The Will was short and to the point. After providing
language similar to “This is my Will,” there was one
additional statement – “The key to my safe deposit box
is hidden under the floor of the chicken barn.” Nothing more
was accomplished with the Will.
Making family and friends search for a Will certainly seems to be
an unintended consequence. Attempting to create a valid Will may
create other more costly unintended consequences. No person writing
his own Will would intend to create or require a court battle to
determine whether the document that he created was in fact a Will.
However, this has been the case is several estates. Court determinations
are required because a lawyer can only predict whether the court
might find a Will to be valid; only the court can say whether the
Will is valid. Consequently, at the minimum, costly hearings may
be required and maybe even a trial to determine whether a document
is a Will or whether it is a valid Will.
Wills may seem that they provide for what a Testator wants, but
they can result in unintended consequences. Consider a Testator
with a son who is married with children. The Testator provides in
his Will that his son shall receive his property and that if his
son predeceases him that his son’s children receive his property.
The son’s wife receives nothing and this may have been intended.
The unintended consequence is the creation of a court-supervised
guardianship for the son’s minor children.
Unintentionally Disinheriting Family Members
Family members and friends can be unintentionally disinherited in
several ways. A few examples include:
1) Serving as a witness to a Will;
2) Making a gift of all property to a spouse;
3) Making a gift of all property to a child.
Serving as a witness to a Will
Under what is commonly referred to as the interested witness statute,
family members and other persons receiving gifts under a Will may
be effectively disinherited by signing the Will as witness. Generally
speaking, most people know that persons receiving gifts under a
Will should not be a witness to that Will because the gifts to a
witness are generally void. While Texas law provides limited exceptions
to this rule, a witness attesting a Will where they are a beneficiary
almost certainly has a high probability of resulting in litigation.
Some legal commentators have concluded that even a dumb lawyer knows
that beneficiaries named in the Will should not serve as attesting
witnesses; and, therefore, the interested witness statute is merely
a trap or common pitfall for lay persons who do not have an attorney’s
assistance in preparing and executing their Wills.
Making a gift of all property to a spouse
Specific gifts to friends and charities that were once appropriate
may also work to effectively disinherit beneficiaries. Assume that
testator had an estate valued at $1,000,000 and made general bequests
to charities totaling $200,000 in his Will. After making this gifts
assume that he devised the rest of his estate or residue to his
family. Upon his death, assume that he had incurred additional liabilities
and expenses related to health care, and as a result the estate
has decreased in value to $200,000. Ignoring insolvency issues,
administration costs, and other issues, the size of the estate has
shrunk; the charities are entitled to the $200,000. Consequently,
there is no residue; the family is left with nothing and effectively
Making a gift of all property to a child
Prior marriages and children of these marriages present special
issues. In an example of how these children can be disinherited,
assume that the Testator and his wife each had children prior to
their marriage and in his Will, the Testator makes a gift of all
his property to his Wife. Upon his death, the wife has everything.
If she dies intestate, without a Will, or unless her Will states
that her spouses children of a prior marriage receive gifts, they
will take nothing from his estate. The Testators children of his
prior marriage are disinherited.
Many married persons make a gift of a majority of their property
to their spouse. A phrasing of such a bequest might be “I
give all of my property to my wife, and when she passes away my
children shall receive whatever is left for their benefit.”
This phrase, while possibly well intentioned, is ambiguous; we don’t
know whether the wife takes all of the property outright or merely
has the right to use it for the rest of her life. If she gives away
the property to her best friend, what do the children receive? It
is possible that a trust may be created when words such as “for
the benefit of” are used. Is a trust created? These types
of questions may need to be resolved in expensive court proceedings.
In Ihl v. Oetting, 682 S.W.2d 865 (Mo. App. 1984) a Testator provided
that his home was to go to Mr. and Mrs. Wendell Richard Hess, or
the survivor of them, presently residing at No. 17 Barbara Circle.
At the time that the Will was made, Mr. Hess was married to Glenda,
who he later divorced. Following this divorce, Mr. Hess married
Verna. When the Testator died, Verna argued that she met the description
of “Mrs. Wendell Richard Hess.” However, Verna never
resided at No. 17 Barbara Circle and Glenda was no longer “Mrs.
Wendell Richard Hess.” The court found a latent ambiguity
and decided that Glenda should receive the property given her shared
interest in antiques with the Testator.
In a final example, a judge provided in his Will that one person
received 80 acres of a farm and another person received the remaining
140 acres of the same farm. The ambiguity is which 80 acres does
the first person receive? Smith v. Burt, 57 N.E.2d 493 (1944) (explaining
that neither person was allowed to choose any acreage, and holding
that each person owned a fractional share as a tenant in common
with the other party).
Increases in or paying unnecessary
Most people receive fragments of information during their lives,
and they use this information to make important decisions regarding
their estates. A common example of one of these fragments of information
is that life insurance proceeds are not taxed. While this is generally
correct with regard to income taxes; it is incorrect with regard
to estate taxes. If a life insurance policy has any incidents of
your ownership the proceeds are includable in your estate. If these
proceeds cause your estate to exceed the applicable exemption equivalent,
$2,000,000 in 2006, your estate will be subject to estate taxes.
Estate taxes are expensive; every dollar over the exemption equivalent
is taxed at a rate of nearly 50%. Consequently, your estate may
be paying unnecessary estate taxes and your beneficiaries may not
receive the property that you intended.
In addition to living on fragmented information, most married persons
do not appreciate the probability of their deaths being either simultaneous
or close in time to each other. Giving all property to your spouse
in a Will may also cause thier estate to pay substantial estate
taxes, especially where spouses pass away within a short time of
each other. This common pitfall may cause the value of the spouse’s
estates to be added together and possibly subjected to estate taxes.
Significant Omissions Related to the Administration
of your Estate
Most persons know that they should probably name an executor to
handle their estate. However, the mere naming of an executor might
not create an independent administration and failing to provide
special language to create an independent administration, can lead
to costly administration. If a court were to find that your Will
failed to create an independent administration, your estate could
be subject to a costly court-supervised dependent administration.
Special language should be included in most Wills that gives an
executor the power to sell property of the estate without court
approval and allows him to serve without having to post a costly
Costly and Protracted Litigation
Even if the Will accomplishes nothing with regard to disposing of
an estate, homemade Wills and other documents are not made without
creating other risks, particularly, the risk of significant litigation.
In the somewhat famous Texas case of Boyles v. Gresham, 153 Tex.
106, (Tex. 1954) the Testator drafted a document that was offered
as his holographic Will. He was a business man apparently in poor
health. During this time, he wrote a document, wholly in his handwriting,
where he discussed things that may or should happen if he passed
away. After he passed away, an alleged friend and business associate
offered the document in an Application to Probate Will(sample).
A Will contest was filed and litigation followed. Here is the story
according to the Courts. Notoriously, it begins with the unedited
Terrell Tex Jan 12 – 1950
this Letter is Written With the idea that Some thing might happen
to me. that I would be wiped out Suddenly if this Should Happen
my business would be in awful shape no relatives, nobody to do
a thing So, this is written to try to have my affairs wound up
in a reasonable way in case of my Sudden Death. Would Like to
have all of my affairs, Cash all assets including any Bank Balance
turned over to Parties named below With out any Bond or any Court
action that can be avoided. they to wind up my affairs in any
way they See fit. U.C. Boyles Refrigeration Supply Co Charlie
Hill Superior Ice Co Should these Gentleman need a third man Would
Suggest Walker. National Bank of Commerce Each of these Gentleman
to Receive $ 500.00 for his Services I have tried to make my wishes
plain. of Course these Crooked Lawyers Would want a Lot of Whereas
and Wherefores included in this. not much in favor of the organized
Charities they are too Cold blooded also not much in Favor of
any person over 21 -- Benefitting by my Kick off unless there
is a good reason am inclined to play the children they are not
Responsible for being here and Cant help themselves
Terrell -- Feb. 7 -- 1950 have Let this Letter get cold and Read
it again -- to See if it Seemed abut Right dont See much wrong
except no wheres an Wherefores -- excuse me
The case originated in the County Court as an application by U.
C. Boyles to probate this document as the Will of Lon Gresham. Mr.
Boyles was a business associate who had cared for Lon Gresham in
his last illness. The application was contested by Arch V. Gresham
who alleged that he was the son and sole heir of Lon Gresham. The
County Court ruled against Arch and admitted the Will to probate.
This decision was beginning of a lengthy and costly appellate process.
Arch Gresham appealed the admitting of the Will to Probate to the
District Court. The District Court decided that the document was
not a Will and refused the application to probate it as such. Mr.
Boyles appealed this decision to the Court of Civil Appeals who
agreed with the District Court and refused the application to probate.
These courts observed that the document did not make any gifts of
property to anyone. They reasoned that the document could not be
a Will because it did not make a testamentary disposition of property;
i.e., the Will did not make gifts of property. Unsuccessful in these
lower court appeals, Mr. Boyles then appealed to The Supreme Court
Mr. Boyles found success at The Supreme Court of Texas. The Supreme
Court ultimately concluded that a document or a letter such as one
written by Mr. Gresham did not have to make a “testamentary
disposition of property” to be a Will. After clarifying this
point of law, the Supreme Court reversed the judgments off the District
Court and the Court of Civil Appeals and remanded the case to the
District Court for trial. Following a trial, The District Court
decided that the document was a Will and that the Will named Mr.
Boyles as Independent Executor; however, the Will did not make any
gift of any property whatsoever.
If you found this legal battle between Mr. Boyles and Arch Gresham
a bit appalling, consider what happened next. After the Supreme
Court remanded the case to the District Court, a new round of litigation
started. At the conclusion of the second trial the Will was admitted
to probate and U. C. Boyles was appointed independent executor.
Arch Gresham was apparently not pleased with this result; he appealed
the appointment of Mr. Boyles as independent executor, claiming
that Mr. Boyles was unsuitable. The Court of Civil Appeals agreed
with Mr. Gresham and found that Mr. Boyles was an unsuitable person
to serve as Independent Executor and remanded the cause to the trial
court for further proceedings. Mr. Boyles, obviously not pleased
with this decision, appealed again to the Supreme Court of Texas.
In this second trip to the Supreme Court of Texas, several interesting
facts were reported from the proceedings in the lower courts. First,
the evidence presented by persons that had no interest in the property
of Mr. Lon Gresham’s estate showed that Mr. Boyles and his
wife had been kind to Mr. Gresham in his old age. Further, there
was evidence that Mr. Gresham had “adopted” and loved
Mr. Boyles and his wife. Finally, it was reported that Mr. and Mrs.
Boyles had cared for Mr. Gresham during his illness and had been
a “family” to him.
In addition to evidence provided by these disinterested persons,
Mr. Boyles had also testified. According to the Court, he stated
that Mr. Gresham “owed him something.” Mr. Boyles admitted
that he had not attempted to estimate the exact amount that he was
owed, but it was at least part of the estate. Also there was at
least some issue as to whether Arch V. Gresham was actually a son
of Lon and that Mr. Lon Gresham had no family. Consistent with this
position, Mr. Boyles stated that he did not know Arch. However,
after hearing evidence, a jury in the lower courts determined that
Arch Gresham was in fact the son of Lon Gresham. When questions
involved an envelope that contained cash and was marked with the
word “boys,” Mr. Boyles claimed that Lon Gresham intended
that the money in the envelope belonged to him or his boys. Finally,
Mr. Boyles also testified that he had ideas as to how Mr. Gresham
wanted his property disposed of. Of course, Mr. Boyles claimed that
Mr. Gresham wanted part of the property to go to him. After reviewing
these facts and the claims of Mr. Boyles to the property of the
estate of Lon Gresham, the Supreme Court of Texas reversed the judgment
of the Court of Civil Appeals and affirmed the decision of the trial
court that Mr. Boyles could serve as executor.
Several observations may be made after examining the above-discussed
materials and the Lon Gresham story:
Using self-help to create legal instruments may lead
to costly litigation. In this case, a document was
found to be a valid Will; the same has been true of Wills created
on pre-printed forms. Thus, a Will can be created using these tools.
However, use of these free or low cost forms does not come without
additional risks, particularly the costs of litigation. Consider
that the case above was litigated and appealed to the State Supreme
Court on two separate occasions. Today, the minimum costs for this
type of litigation could cost tens of thousands of dollars.
Never underestimate what people will do when they have
the opportunity for financial gain.
Imagine the story of Mr. Boyles. Did Mr. Gresham intend to pay him
for caring for him, his wife, or give money in an envelope to his
“boys?” We may never know. However, he clearly claimed
that Mr. Lon Gresham “owed him something.”
It may be strategic and extremely valuable for your
heirs at law to contest any document purported to be a Will, despite
the costs. Note that the parties to the lawsuit discussed
above were a business associate of Lon Gresham and Lon’s Gresham’s
son. The business associate, U. C. Boyles obviously took some position
that Lon intended to give him property under the “Will.”
If U.C. Boyles had succeeded, Lon’s son, Arch Gresham would
receive nothing under the Will.
Arch Gresham’s only strategy at this point is to contest the
Will. If the Will fails or is not otherwise a “lawful and
valid Will,” he will inherit by the Texas laws of Intestacy
as the son of Lon Gresham. Given the apparent wealth and extent
of the father’s business assets, he had little, if nothing,
to loose in litigating the Will.
Any document can be offered as a Will with a properly
prepared Application for Probate. The case above should
make it clear that a poorly written letter, riddled with conflicting
statements, spelling errors and many ambiguities can be offered
and ultimately determined to be a Will.
Letters or a document drafted by you personally and
intended to be your “Will” may or may not meet the requisites
to create a valid Will in Texas or other states. Again,
obviously the Courts struggled with this letter. Ultimately, upon
receiving instructions from the Supreme Court of Texas, and after
two trials, the District Court decided that the document was a Will
but it did not make any disposition of Mr. Lon Gresham’s property.
Your children may fight over your property.
In the case above, Lon’s son was fighting someone that was
not one of his siblings. Would he have fought with one of his siblings?
No one knows. However, consider this, a majority of our clients
tell us something like: “my children are great and successful.
I have instilled them with my high standards, morals, and values;
they never fight.” Nothing could be further from the truth,
especially after you are gone. Let’s face it – Did your
children ever fight, cry, or protest when one of them perceived
that he received less than the others? Sure they did! Whether it
was candy, ice cream, a toy, or riding by the window in the family
car – some of them, possibly not your children, but some children
will do the same with regard to your property.
The popular adage that you must do two things during
your life – pay taxes and die may be true. However, one thing
remains following your death – the litigation of your estate!
Your estate can be wasted with litigation. It has been well established
in the courts by cases such as this that Testators who draft their
own Wills lead to disputes that may only be settled through costly
litigation. This case went to trial, was heard again at the appellate
court, and was appealed to the Supreme Court of Texas. The least
costly approach for this type of case today could cost tens of thousands
of dollars in trial costs and appeals.
While the majority of this discussion is directed to holographic
wills, other examples of cases related to Wills prepared on pre-printed
forms, statutory forms, and with software include: In re Estate
of Johnson, 630 P.2d 1039 (Ariz. Ct. App. 1981); In re Estate
of Mulder, 765, P.2d 997 (1988); In re Will of Smith,
108 N.J.257 (1987); Kimmel’s Estate, 278 Pa. 435. Documents
prepared in this manner are often contested and fail to meet the
formal requirements of a Will. Most often they fail because they
were improperly executed or otherwise failed to meet the formalities
to create a valid Will.