Buyer, Beware! Online Last Will and Testament Ends in Probate Litigation
By Kent Berk on May 7th, 2014 in BLOG, Probate, PROBATE LITIGATION, WILL CONSTRUCTION, WILL CONTESTS, WILL VALIDITY
Online legal forms allow consumers to form a business, create real estate contracts, and make a last will and testament—all from the comfort of their homes and without an attorney. This convenience—paired with the often reduced cost of purchasing do-it-yourself (DIY) forms—might explain the success of the online legal form industry.
Working with online forms, instead of consulting a qualified estate planning attorney, may save time and money in the short term; however, the validity, effect and interpretation of these documents may not be clear. And defects may not be discovered until it is too late.
This warning isn’t just a self-preservation tactic on the part of attorneys, who might be out of a job if everyone used DIY legal forms.
The well-regarded consumer advocacy group Consumer Reports investigated whether online legal forms operate the way they are intended. Unfortunately, the investigation yielded words of caution to those choosing to take the legal DIY route.
According to Consumer Reports, “Using any of these services is generally better than drafting the documents yourself without legal training or not having them at all. But unless your needs are simple—say, you want to leave your entire estate to your spouse—none of the will-writing products is likely to entirely meet your needs.”
Unfortunately, some consumers have learned the limitations of online legal forms the hard way. A recent estate dispute worked its way out of Florida’s probate court to be finally decided by the state’s Supreme Court. The case involved the last will and testament that a woman had created herself online. The will stated that “all listed” property should go to the designated beneficiary. But the will failed to include directions for what to do with any property acquired after the will’s signing. This flaw in the will resulted in unnecessary litigation and expense.
The portion of the will that might have avoided so much probate litigation is called a “residuary clause.” Think of this clause as a kind of property “catchall.” With this clause, the person making the will can designate a person (company or charity) who should receive all of the property not specifically given to others in the will.
In its opinion, the Supreme Court of Florida offered the following important advice:
“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—the precise results the testator sought to avoid in the first place.”
If you’re concerned that a family member’s pre-printed or online will or trust may not be valid or if there are questions regarding interpretation, consult the experienced estate litigation attorneys at Berk & Law Group, PC.
