Sweating the Details

Two recent Florida court cases point up the value of clearly stating your intentions when drafting your will, as well as considering 'what if' scenarios.

In the first, the Testator (person making the Will) wrote a Will that left personal items to her sister, with the instruction that her brother would inherit if her sister predeceased her. When she made the Will, the personal items were all that she had. Then her sister died, leaving her real property and cash. The Testator, however, did not change her Will to address who would receive the real property and cash upon her death. When she died, her nieces petitioned the court to be named partial heirs of the real property and cash under intestacy law, because her Will did not address who would receive anything other than the personal items. Her brother objected and said she should get everything because she was the only heir named in the Will. After the court battle, and the subsequent appeal, the courts sided with the brother. The simple solution would have been a one-page Codicil to the Will, clearly stating what the Testator wanted to have happen (which presumably is still unknown).

In the second, the Testator included a line in his Will that he would forgive at his death a debt that someone owed to him. Turns out, his estate was insolvent, meaning there wasn't enough money in the estate to pay the creditors of his estate. Florida law says you can't forgive a debt in your estate to the extent that you are insolvent, because the debt would otherwise be an asset available to creditors of the estate. Here, the 'what if' scenario turned out to be reality. The Testator could have forgiven the debt before he died, but not in his estate.