PROPERLY DRAFTING A WILL: TRUE INTENT VS. INTENT STATED IN THE WILL

In interpreting a will, Florida law holds that the intention of the testator is the controlling factor in the analysis. However, Florida law also provides that the testator’s intention should be gleaned from the four corners of the will. Aldrich v. Basile, 2014 Fla. LEXIS 1027, at *12 (Fla. Mar. 27, 2014) (“The testator’s intention as expressed in the will controls, not that which she may have had in her mind”). If the will is not valid under Florida law, Florida courts generally will not consider it.

Ann Aldrich wrote her will on an EZ Legal Form that she bought online. She listed all her possession on the will and handwrote instructions directing that all of her “possessions listed” should go to her sister. Ms. Aldrich further wrote that if her sister dies before her, “all listed” possessions should go to her brother. Having listed all her possession on the will and devising them as she wished, Ms. Aldrich signed the will and had two witnesses sign the will in accordance with Florida law. Had her story ended here, Ms. Aldrich’s intent would have been properly reflected on a valid will.

Three years after Ms. Aldrich wrote her will on the EZ Legal Form, her sister died leaving about $122,000 in cash to Ms. Aldrich as well as land. Following her sister’s passing, Ms. Aldrich handwrote an additional document. The handwritten document stated as follows: “This is an addendum to my will .… Since my sister … has passed away, I reiterate that all my worldly possessions pass to my brother.” Aldrich, 2014 Fla. LEXIS 1027, at *6. Ms. Aldrich signed the handwritten document and her daughter signed it as the sole witness. Shortly thereafter, Ms. Aldrich passed away. Ms. Aldrich’s handwritten document shows that her intent in drafting her will was to pass all her worldly possession to her brother if her sister died before her. The Florida Supreme Court, however, held that the cash and land that Ms. Aldrich inherited after drafting her will was not disposed of by her will and must pass by intestacy.

As the Florida Supreme Court noted, Ms. Aldrich’s will was not ambiguous. To the contrary, the will was very specific. The will directed that all of Ms. Aldrich’s “possession listed” should go to her brother if her sister dies before Ms. Aldrich. Because the cash and land were not “listed” in the will, Ms. Aldrich did not properly dispose of those assets in her will. Had the will included a residuary clause, i.e., a provision regarding the remainder of Ms. Aldrich’s estate, the outcome might have been different. However, because Ms. Aldrich’s valid will was very specific as to which assets should pass to her brother, the Florida Supreme Court “cannot infer from the four corners of the will, without adding words to the document, that in making provision for the property she owned on that day that she also intended to make provision for any property that she stood to gain in the future.” Aldrich, 2014 Fla. LEXIS 1027, at *17. As to Ms. Aldrich’s handwritten addendum, because the document was not properly signed by two attesting witnesses, it had no legal effect as a testamentary instrument. As Justice Pariente explained in her concurring opinion, “although this is the correct result under Florida’s probate law, this result does not effectuate Ms. Aldrich’s true intent.” Aldrich, 2014 Fla. LEXIS 1027, at *21 (Pariente, J., concurring).

Aldrich highlights two important aspects of Florida probate law. First, Florida law requires that the testator’s intent as stated in the will govern the interpretation of a testator’s will. As Aldrich demonstrates, the testator’s “stated” intent does not always coincide with his or her “true” intent. Second, as with any legal document, proper drafting is essential. As Justice Pariente noted, “the ultimate cost of utilizing such a [pre-printed] form to draft one’s will has the potential to far surpass the cost of hiring a lawyer at the outset. … I therefore take this opportunity to highlight a cautionary tale of the potential dangers of utilizing pre-printed forms and drafting a will without legal assistance. As this case illustrates, that decision can ultimately result in the frustration of the testator’s intent, in addition to the payment of extensive attorney’s fees.” Aldrich, 2014 Fla. LEXIS 1027, at *22-24 (Pariente, J., concurring).

Probate attorney Peter T. Mavrick represents clients in probate, trust, and guardianship litigation. This article is not a substitute for legal advice tailored to a particular situation. Peter T. Mavrick can be reached at: Website: www.mavricklaw.com; Telephone: 954-564-2246; Address: 1620 West Oakland Park Boulevard, Suite 300, Fort Lauderdale, Florida 33311; Email: peter@mavricklaw.com.