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Form Wills – A Bad Bargain

By Dennis B. Rafferty, Esq.

Law schools routinely use actual cases in order to teach basic principles to their students. It is important to know what went wrong in the past to avoid making the same mistakes in the future. This is particularly true in the world of “form wills”. Many clients come to our office with legal problems caused by the use of what, at first glance, appears to be a simple document.

Form wills are readily available in office supply stores, book stores and over the internet. They hold the promise of simplicity — no thought needed. Unfortunately, users often accept that promise and complete these forms oblivious to the problems created or the questions left unanswered. The cost of litigation generated by a badly drafted will is not easily forgiven by the heirs who suffer the consequences.

For example, not properly signing or dating a form will is a common mistake. People who use form wills often sign them, then later go back and make additions or changes. In one such case, a son died, and the person who originally made and signed the will simply crossed out the name of that son and added another name. He did not re-sign and re-date the will. His failure to re-sign and re-date the will after making the change created a basis to challenge the validity of both the original will and the alteration.

Another problem arises because form wills are often completed by hand rather than typed. The “fast food” attraction of the form may generate a hurried scribbling of information in the blanks. We have all done this — an insurance form, a medical history, an application. If people can’t read these forms, they can come back to you for clarification. Unfortunately, this is not possible with a will.

Perhaps the most common problem resulting from the use of form wills is ambiguity. In one instance, a person left his property to his “children and grandchildren”. But at the time of his death, one of his children was deceased. The three surviving children had three natural children, two adopted children and one step-child, and the deceased child had two natural children. Under such circumstances, how does the property get divided? It could be divided into four shares (one share for each living child and one share divided among the children of the deceased child). It could be divided into ten shares (one for each child and grandchild, excluding the stepchild). Other interpretations are also possible — and that means a court proceeding. Such mistakes are easy to make in a world with multiple marriages and combined families. A will carefully drawn by an attorney will eliminate disputes and heartache among family members.

The biggest shortcoming of form wills is the elimination of planning, which is the most important part of the process. For example, jointly owned assets or assets passing directly to a named beneficiary would not be controlled by a will. Another example deals with spouses, who are legally entitled to a share of the estate regardless of the terms of a will. Because such exceptions exist, it is unlikely that a form will can accomplish what was intended.

Finally, a form will does not always conform to the laws of each state. A form that means one thing in California may mean something entirely different in Pennsylvania.

At QuatriniRafferty, our attorneys can provide planning and proper execution of a will to prevent the problems, expense and heartache caused by the use of form wills.