Opinion / Interpretation of Handwritten Will

[reneet]

Will states -

... I, John Doe, leave my estate to Julia M. If, Julia M. and myself die at the same time (car wreck, plane crash, etc.) estate left to XYZ Charity.

Months later, Julia M. renounces her claim to the estate and XYZ Charity is now in court trying to acquire the estate.

I am seriously considering publicizing the will and the very questionable actions that XYZ charity is taking to acquire said estate. Any opinions, suggestions appreciated.

[al503]

In response to your hypothetical question:

Considering xyz is in court, the statutory requirements have probably been met and the validity of the will is probably not in question? Even though it is handwritten, it looks as though JD got some legal advice as many people don't consider the consequences of the testator and the heirs/devisees/legatees perishing in a common accident.

I also take it that the will is very straightforward with no other provisions for contingencies and also doesn't contain a no contest (in terrorem) clause?

Depending on the laws of your state, there may be an issue with the delay in the renunciation. Some laws require an immediate renunciation such as informing the personal representative upon his/her tender that it is not accepted. In most cases, absent an explicit refusal, the estate will have been deemed to be accepted. If we assume that this is the case, once accepted, xyz has no further claim to the property in question. Julia may donate, sell, destroy, waste, etc., the property as if it were her own, which it is.

Should the validity of the will be in question and be ultimately held so by a court, then all bets are off and in most cases, the property will be distributed based on the state's intestacy laws.

[insert: this is not legal advice, blah blah.]

Edited September 30, 2008 by al503

[davidwiz]

Trusts & Estates.....Must....Not...Read....Head...Beginning...To...Explode!

[BigDave]

Is it even a legal will? Witnessed by two non interested parties? Was the decedent (sp?) in full capacity of their actions?

[austinkroe]

Is it even a legal will? Witnessed by two non interested parties? Was the decedent (sp?) in full capacity of their actions?

Holographic wills do not need to be witnessed it just needs to be in the handwriting (verifiable) of the testator in about half of the states.

http://en.wikipedia.org/wiki/Holographic_will

Apparently they are known as Olographic wills in Louisiana.

I think there are other issues here that need to be addressed by an actual attorney esp. one that practices in your jurisdiction.

edit to add: I am not an attorney I just play one on TV, or I stayed at a Holiday Inn Express last night. Nothing I said was intended to be legal advise merely to be used for the purposes of education. Blah blah blah.

Edited October 1, 2008 by austinkroe

[reneet]

Thanks for your responses. Here's a bit more of the story...

I hired an attorney (the best and therefore most expensive in the area) at the beginning to verify that the will is valid with no "loopholes". Attorney verifies will is valid and that we would not stand a chance of challenging said validity. As far as I'm concerned, that's the end of it.

Months later, Julia M. contacts me by phone and says

1. She doesn't think it's right for her to get the estate
   
2. The estate should rightfully go to his children
   
3. She's going to renounce so that the children will get the estate
   

Julia M's renunciation has a clause on the 2nd page stating that she understands that her renunciation causes the estate to flow to XYZ Charity which we (my attorney and I) figure was some "misunderstanding" of the situation by her attorney as she is still maintaining her position with regard to children should have estate.

Now, Julia M. has further signed an affadavit saying that she wouldn't have renounced if she'd known that estate would devolve to anyone other than XYZ Charity and in no circumstance would she have renounced if she had known that the estate would have become intestate and gone to his children.

[al503]

Months later, Julia M. contacts me by phone and says

1. She doesn't think it's right for her to get the estate
   
2. The estate should rightfully go to his children
   
3. She's going to renounce so that the children will get the estate
   

Julia M's renunciation has a clause on the 2nd page stating that she understands that her renunciation causes the estate to flow to XYZ Charity which we (my attorney and I) figure was some "misunderstanding" of the situation by her attorney as she is still maintaining her position with regard to children should have estate.

Now, Julia M. has further signed an affadavit saying that she wouldn't have renounced if she'd known that estate would devolve to anyone other than XYZ Charity and in no circumstance would she have renounced if she had known that the estate would have become intestate and gone to his children.

Little confusing here but it sounds like Julia may have some capacity issues herself/is unable to make up her mind. By renouncing the property, she never had title/ownership by definition. Therefore, she had no legal right/authority to say it should go to XYZ or the children (or anyone else for that matter.)

Regardless, if a challenge is brought by the children, one of the things a court will fixate on (and rightfully so) is that the original will did not provide for them (the children). It's obvious that the testator did not want any portion of his estate to go to his heirs otherwise the will would have stated in substance 'all my stuff to Julia. If Julia does not survive me, then all my stuff to my children.' The intent of the testator is crucial and the court will try to carry out that intent if at all possible.

[sfinney]

I'm not a lawyer, and its only semantics, but woudn't you have a case for saying the estate should not go to XYZ due to the fact that the clause that would enable that was not triggered?

The will as you wrote it above, says "If, Julia M. and myself die at the same time (car wreck, plane crash, etc.) estate left to XYZ Charity."

Well, they did not die at the same time. It does not say that XYZ is the next in sucession after Julia, it says if they "die at the same time" it goes to XYZ.

Which would mean the estate would be handled under state law at that point as to who next in line would be? Grasping, I know.

He probably never imagined the scenario where Julia would turn down the estate and thus leave out any future disposition of the estate to whomever she desired.

[Bear23]

Was the will recorded at your county clerks office and notarized?

[reneet]

I don't know. There is no notary seal on it.

[Rob Boudrie]

Julia M's renunciation has a clause on the 2nd page stating that she understands that her renunciation causes the estate to flow to XYZ Charity which we (my attorney and I) figure was some "misunderstanding" of the situation by her attorney as she is still maintaining her position with regard to children should have estate.

Are you saying she signed a legal document without reading it? Sounds a bit like self-inflicted injury.

[al503]

I'm not a lawyer, and its only semantics, but woudn't you have a case for saying the estate should not go to XYZ due to the fact that the clause that would enable that was not triggered?

The will as you wrote it above, says "If, Julia M. and myself die at the same time (car wreck, plane crash, etc.) estate left to XYZ Charity."

Well, they did not die at the same time. It does not say that XYZ is the next in sucession after Julia, it says if they "die at the same time" it goes to XYZ.

Which would mean the estate would be handled under state law at that point as to who next in line would be? Grasping, I know.

He probably never imagined the scenario where Julia would turn down the estate and thus leave out any future disposition of the estate to whomever she desired.

Kudos. That's definitely thinking outside of the box. Any property that can't be transferred to the named person for whatever reason, including renunciation, usually lapses and is put into a category called residue. As this is handwritten, there probably isn't such a provision which states 'the residue of my estate shall go to _____' and the only other named person/entity is the charity. Had there been no other person mentioned in the will besides Julia, then the court would distribute the estate based on the state's intestacy laws.

Additionally, the fact that the children are not mentioned brings into play certain legal consequences, if you will. The law recognizes many families have internal rifts, hatred, money grubbing, lazy, issue (the Menendez bros as an extreme example). Therefore, some states, via statute and/or case law will hold that the specific omission of people or things that are normally considered to be 'natural objects of the testator's bounty' (usually the immediate family such as the husband/wife, children, etc.) is to be interpreted as an explicit exclusion from the will.

Again, the testator specifically did not include the children. The court will try to carry out his apparent wishes and will probably give the estate to XYZ.

[reneet]

Julia M's renunciation has a clause on the 2nd page stating that she understands that her renunciation causes the estate to flow to XYZ Charity which we (my attorney and I) figure was some "misunderstanding" of the situation by her attorney as she is still maintaining her position with regard to children should have estate.

Are you saying she signed a legal document without reading it? Sounds a bit like self-inflicted injury.

Hard to say, Rob but I wouldn't be at all surprised. The woman is unstable to say the least and had spent the last 10+ years driving a wedge between my father and his children which is why I was very surprised when she called me out of the blue to say she was renouncing so that his children would receive his estate.

[reneet]

I'm not a lawyer, and its only semantics, but woudn't you have a case for saying the estate should not go to XYZ due to the fact that the clause that would enable that was not triggered?

The will as you wrote it above, says "If, Julia M. and myself die at the same time (car wreck, plane crash, etc.) estate left to XYZ Charity."

Well, they did not die at the same time. It does not say that XYZ is the next in sucession after Julia, it says if they "die at the same time" it goes to XYZ.

Which would mean the estate would be handled under state law at that point as to who next in line would be? Grasping, I know.

He probably never imagined the scenario where Julia would turn down the estate and thus leave out any future disposition of the estate to whomever she desired.

If I understand correctly, this is what my attorney is arguing.

[Miranda]

ok human side and not legal advice.

the unstable woman was influenced to renounce by xyz.

thus xyz gets all the estate.

best bet is to threaten to go public.

the Head Line reads:

xyz browbeats girfriend to get estate of so-and-so

compromise.

half to the children and half to xyz

the way for the chlidren to get all...

claim undue influence

by the xyz group and they used the woman to get the leverage.

half a lost case is better than all a lost case...

miranda

[JKSNIPER]

Stupid question but:

Why did'nt Julia just take the estate then give it to whoever she wanted to?

Sounds like she did not want it to go to the children but she did not want to be I.D.'d as the "bad guy".

This way she has the estate go somewhere other than the children and at the same time she can claim she tried to do the right thing but its not me thats to blame but its the evil legal system thats to blame .

JK

I am NOT a lawyer.

[al503]

Stupid question but:

Why did'nt Julia just take the estate then give it to whoever she wanted to?

You always have to take into consideration the possible tax implications. It's similar to someone turning down a pay raise because that may put them into a higher tax bracket.

[reneet]

Stupid question but:

Why did'nt Julia just take the estate then give it to whoever she wanted to?

Sounds like she did not want it to go to the children but she did not want to be I.D.'d as the "bad guy".

This way she has the estate go somewhere other than the children and at the same time she can claim she tried to do the right thing but its not me thats to blame but its the evil legal system thats to blame .

JK

I am NOT a lawyer.

Last time I spoke with her, she told me that she wanted the car (sentimental reasons) and that she wanted to make sure that my sister, who is a prescription drug addict, gets the help that she needs and doesn't have unfettered access to her share of the estate.

Near as I can figure, someone, presumably XYZ charity has been exercising some influence over her since then. When my attorney phoned her on 9/3, she was still saying that she desired his children to have the estate. He phoned her around 9/19, after receiving her signed affadavit and she told him "no comment" and hung up.

[reneet]

ok human side and not legal advice.

the unstable woman was influenced to renounce by xyz.

thus xyz gets all the estate.

best bet is to threaten to go public.

the Head Line reads:

xyz browbeats girfriend to get estate of so-and-so

compromise.

half to the children and half to xyz

the way for the chlidren to get all...

claim undue influence

by the xyz group and they used the woman to get the leverage.

half a lost case is better than all a lost case...

miranda

We (my brother and I) have considered this course of action but weren't sure about the procedure.

[al503]

ok human side and not legal advice.

the unstable woman was influenced to renounce by xyz.

thus xyz gets all the estate.

We don't know this to be true. Many times (perhaps the vast majority) contingent beneficiaries (xyz) aren't even notified of the will reading. xyz probably wasn't notified until after the renunciation by Julia of the existence of the will.

[reneet]

ok human side and not legal advice.

the unstable woman was influenced to renounce by xyz.

thus xyz gets all the estate.

We don't know this to be true. Many times (perhaps the vast majority) contingent beneficiaries (xyz) aren't even notified of the will reading. xyz probably wasn't notified until after the renunciation by Julia of the existence of the will.

Executor of the estate is affiliated with XYZ and has regular contact with Julia M.

[al503]

ok human side and not legal advice.

the unstable woman was influenced to renounce by xyz.

thus xyz gets all the estate.

We don't know this to be true. Many times (perhaps the vast majority) contingent beneficiaries (xyz) aren't even notified of the will reading. xyz probably wasn't notified until after the renunciation by Julia of the existence of the will.

Executor of the estate is affiliated with XYZ and has regular contact with Julia M.

And the plot thickens!

[Rob Boudrie]

We (my brother and I) have considered this course of action but weren't sure about the procedure.

The procedure, for all but the smallest of estates (where it's cheaper to risk losing all than paying legal fees) is to have an attorney experienced in estate issues handle the negotiations for you.

[davidwiz]

Julia M's renunciation has a clause on the 2nd page stating that she understands that her renunciation causes the estate to flow to XYZ Charity which we (my attorney and I) figure was some "misunderstanding" of the situation by her attorney as she is still maintaining her position with regard to children should have estate.

Are you saying she signed a legal document without reading it? Sounds a bit like self-inflicted injury.

It happens all the time. Unless there is a question of capacity or duress, the person who signed is usually bound.

[al503]

We (my brother and I) have considered this course of action but weren't sure about the procedure.

The procedure, for all but the smallest of estates (where it's cheaper to risk losing all than paying legal fees) is to have an attorney experienced in estate issues handle the negotiations for you.

Yup. Regardless of the facts or who is right or wrong, it's never a bad idea to at least think about/discuss settling out of court. Most attorneys recognize this as usually being beneficial to their clients (while not always so to their billable hours.)