What Happens When Somebody Doesn’t Like A Will?

If a Last Will and Testament once existed but cannot be found, the law presumes that it was destroyed by its maker.  If there is no Will, property is distributed according to intestacy statutes.  Somebody who is written out of a Will may have an incentive to destroy it if they would get more under the intestacy statute.

Isabel’s Story

Isabel was a retired librarian and an author of children’s books.[i]  She never married or started a family.  She had some nieces and a nephew, but she wanted to leave everything to her church.  Her attorney prepared the paperwork.  The attorney kept a copy of the Will and sent the original home with Isabel.    Isabel stored it in an unlocked cabinet.

Meddlesome Niece Disinherited

Isabel had one niece who interfered with her affairs.   At one point the niece stayed at Isabel’s home while she was away and removed  Isabel’s private financial records without her permission. This upset Isabel who had her attorney demand return of the records. The niece also suggested that Isabel move into a nursing home.  Eventually, Isabel refused to speak to her.

Disinherited Niece, Did She Destroy the Will?

After Isabel died the original Will was nowhere to be found.  This would be great for the niece because if the Will disappeared , there would be a presumption that Isabel destroyed it and the niece would inherit under the intestacy statutes.  Isabel’s caretaker implied that the niece had a hand in the Will’s disappearance.  When the attorney produced a copy of the Will, the niece fought it.    The fight went up to the Pennsylvania Supreme Court.

The Court did not have direct evidence that the niece destroyed the Will.  But the Court’s opinion  stated,

“With that said, we do acknowledge that the potential for fraud is an appropriate concern in developing legal rules applicable to lost wills. “

Attorney’s Copy of Will Accepted

The evidence showed that the Attorney kept a copy of the Will.  He had been in regular contact with Isabel through the years and assisted her with changes to it.  He also visited here within a few weeks of her death.  Surely Isabel would have informed her attorney if she wanted to change or destroy her Will. These unique facts overcame the presumption that a lost Will was destroyed and the attorney’s copy was accepted.  The niece got nothing.

 

Maintenance  Agreements:

Isabel’s attorney kept in contact with her throughout her lifetime.  He made changes to her Will as her needs and wants changed.  He intervened when the niece took Isabel’s documents.  The attorney and his client had an understanding that kept communications open.  Maintenance Agreements are designed to keep communications open and expenses to a minimum, they can include:

  • Regular Estate Plan reviews

  • Access to attorneys for routine questions without bills

  • Assistance and advice when assets or family situations changeSafe bank and key to the safe

  • Notary services

  • Enrollment in Living Will registries such as Docubank

  • Newsletters Covering Legal Topics

  • Trust protector or oversight

  • A seamless transition to estate administration

  • Assistance in the event of incapacity or incompetency

  • Storage of Wills, Trusts & Powers of Attorney to prevent fraud and abuse

  • Provide word processing changes

Modern maintenance agreements are a way to keep estate plans current.   The client receives representation on a regular schedule at a fixed cost. Issues are dealt with as they arise.  This ultimately saves the client money.

Where Should I Store the Will?

This is a question that is often asked.  Many clients wish to lock the Will in a safety deposit box at the bank.  Others keep their Estate Plans at their home.  Isabel’s case demonstrates the difficulty a Court faces when the original is lost and a copy of a Will is produced.  Some courts provide a way to have a Will filed for use in the future.

Should My Attorney Keep My Will?

Many attorneys offer to store Wills, Trusts, Powers of Attorney and other Estate Planning Documents as part of a maintenance program.  The safekeeping reduces the risk of mischief by unhappy family members.   Documents are kept in a fireproof safe or in a bank’s vault.  The problem with keeping the Will or Trust in the client’s safety deposit box is the risk of the document becoming inaccessible without an order from a probate court.   Also, the person retrieving it may “lose” it if the provisions are unfavorable.

The full case can be seen in here:  In re Estate of Wilner

See also Writing the Kids Out of the Will

 

[i] Her works include “B is for Bethlehem”, “A Garden Alphabet” and “The Baby’s Game Book”.

 

 

About Richard Winblad

Richard Winblad is a lifelong Oklahoma City Metro resident with a law practice focused on Elder Law and Estate Planning. His practice focus helping seniors and veterans by giving sound legal estate planning advice including Medicaid Estate Planning and Veteran’s Benefit Qualification. In 1984, Richard graduated from OSU with an undergraduate degree in Business he later sought and earned a Law Degree from the University of Oklahoma in 1992. His practice is based in Edmond and is held in a beautiful pre-statehood home close to UCO at 102 E. Thatcher. He is president of the Oklahoma City Commercial Lawyers Association, a group that provides legal an ethical training for attorneys. He is also a member of “Lawyers with Purpose”, an organization that provides in depth training and support to attorneys who practice in the area of elder law. He received an AV Preeminent® rating by his peers through Martindale-Hubbell® Peer Review Ratings™. Dedicated to educating the public, Richard does workshops and presentations all around the state for professionals and laypersons. These programs provide vital information to our veterans and seniors as they look forward in planning living and financial needs that fit their desires.

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