Saturday, December 22, 2012

Why downloading legal forms is a bad idea, or...

Residuary clauses? Those are optional... right?

These days, there are a lot of websites that allow users to download legal forms and fill them out without the need of an attorney. The concept in and of itself is great. People should have easier access to the law, without unnecessary legal fees. The application is problematic because the law is so complicated that the forms are often too generic to do the users much good.

Without an attorney, a rubber stamp version of wills and even lease agreements can virtually ignore the actual needs of the person seeking legal protection. Those using the forms may actually find in the end that the form is dismissed outright by a court. Even more of a crisis, a badly executed form can result in a weird interpretation by a court that may pervert the intent of the writer.

According to the 1st DCA in April of 2011...

a residuary clause is not really necessary since "the property acquired by the decedent from her sister following the execution of the decedent's will passed by the decedent's will according to the decedent's intent as expressed in her will." Basile v. Alrich, Case No. 1D10-3110. This created the strained result that if one failed to have a residual clause... the court would simply imply it existed anyway.

This logic's flaw was illustrated by the dissent who opined on how bizarre future claims could become. A single, insignificant bequeath from a sizable estate through a will, containing no residuary clause, would effectively allow the benefactor to have a claim on the remainder of the estate. (Eep, I'd hate to see the malpractice claim for this one.)

According to the 1st DCA in August of 2011...

the draft in April may have been... stretching things. Now "[t]he will cannot, therefore, dispose of these items, not because they are after-acquired, but because no provision of the will covers them." Basile v. Alrich, 70 So. 3d 682, 687 (Fla. 1st DCA 2011). The 1st effectively reversed course in the same case, stating that "...the will as written and executed failed to dispose of those unmentioned assets."

It gives readers a chance to understand that the probate code is complex enough that even the well read Judges of the 1st DCA are battling with these issues at times.

So what are the lessons learned?

Well, in the above case, the will was originally an "E-Z Legal Form." It's blanks were handwritten, and did not contain a residuary clause. It is likely that no attorney was consulted either. When the will went into probate, that missing residuary clause became a big issue. Enough of an issue that it was escalated from probate court to the appellate level.

For non-lawyers, the lesson here is that it is never a good idea to try and draft your own will (or any other legal document for that matter.) It's a little less of a bad idea to use a generic form and hand write the blanks without at least asking an attorney for his or her opinion. Finally, if you are going to draft your own forms, don't forget the residuary clause.

For attorneys it is important that residual clauses for after-acquired property and monies be included at the request of your client. Generally the client will make it rather clear anyway. If the bequeaths get as specific as the above case, it is incumbent upon us to determine exactly how the after acquired possessions get inherited.


Jimmy Davis is a practicing attorney in the Central Florida area. He practices in many areas of law, but is most interested in family and business law. He is particularly interested in the aftermath of Constitutional and Florida Constitutional rulings and how they help or hinder his clients' interests. He is available for free consultations on a variety of legal topics. 

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