Frustrating the Intent of the Testator — Part II

A prior post, Frustrating the Intent of the Testator, discussed the way appellate courts thwart decedents’ clear wishes through arcane legal technicalities.  In a recent case, Aldrich v. Basile, the Florida Supreme Court stuck to this time-honored judicial tradition.  As usual, the court claimed that was implementing the “intention of the testator,” while settling her estate in a way that was clearly contrary to her wishes. Apparently, the court wished to inflict post-mortem punishment on the testator for engaging in DIY estate planning.

Ann Aldrich executed an “E-Z Legal Form” preprinted will that lacked a residuary clause in 2004. A residuary clause assigns the residue of the estate, after giving specific devises (gifts) to one or more beneficiaries. She listed all of her assets and bequeathed them to her sister, if living, or her brother, if her sister predeceased her. After Ann’s sister died in 2008, Ann inherited the sister’s estate. She then attempted to modify the 2004 will to make it clear that her brother was to receive all her “worldly possessions” – in other words, to supply the missing residuary clause.

After Ann died, her brother and a deceased brother’s daughters entered into a will contest. The brother claimed that Ann clearly wanted him to get her entire estate. The nieces claimed that because the 2004 will lacked a residuary clause, everything that was not listed in the will passed intestate, to be shared by them, as well as the living brother.

The court stated in its opinion that the 2008 attempted codicil “clearly demonstrates that Ms. Aldrich’s true intent was to pass all of her “worldly possessions” to her brother.” However, the court refused to honor it because there was only one witness. This is amazing. The court actually stated that it was deciding the case contrary to the testator’s “true intent.”

The court blamed the “unfortunate result” on the fact that Ann did not seek legal assistance in creating her estate plan. It is true that engaging an attorney to write up your will and other legal documents will usually ensure that your estate will go where you want it to. However, even if the purported codicil lacked the second witness necessary to make it a valid will in its own, the 2004 will had an ambiguity that the 2008 document could have resolved. If the court really wanted to implement Ann’s intent, it would have – and could have – interpreted the will as including the 2008 writing.


John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
©2014 John B. Payne, Attorney

Leave a Reply

Your email address will not be published. Required fields are marked *