Do you know someone who is the personal representative and in charge of a probate estate? Or, are you the personal representative who is in charge of an estate? Hopefully your acquaintance or you are in charge of an estate with a will prepared by an experienced probate and trust attorney. Unfortunately, so many people think they are qualified to make their own will or trust. They may have seen the one their parents had prepared by the family attorney, and conclude they can go get a form and do the same and come out just fine. This is a true story.
You may be wondering yourself “what could go wrong if the decedent left a will.” The will directives must be concise and clear. If there is an ambiguity, it is too late to fix it after you are dead. Making your will correctly is a good reason to go to talk to an experienced will and trust attorney who is an expert. If the lawyer does not have years of experience in writing wills and trusts, then probating or closing them after a death, then you will likely run into trouble.
Here is the true story. An Oklahoma will directed that the entire residue of decedent’s property, including mineral interests, be given to a cousin. Then the inexperienced lawyer put in a general statement in the residuary clause expressing the will maker’s intent that all of the mineral “interests be retained within” the family heirs, and not be owned outside of the family by divorce. The court determined that the will was ambiguous and disregarded this lawyer’s attempt to express what his client wanted done. The Oklahoma Court held at 342 P.3d 62 Website to Find Citation; “In appeals from
proceeding decisions, the appellate court will examine and weigh the record proof, but it must abide by the law’s presumption that the nisi prius decision is legally correct and cannot be disturbed unless found to be clearly contrary to the weight of the evidence or to some governing principle of law.” In other words, the appellant court was going to uphold what the trial court decided.
The appellant court said if the decedent will maker had intended to devise the minerals to other heirs, she had opportunity to do that in the will. The will which the inexperienced lawyer prepared made no devise or request to the other heirs. The statement of general intent was disregarded because of the previous specific devise and bequest to the cousin. The language used by the lawyer was not as clear, positive, or decisive.
The primary issues on an appeal is whether the trial court’s decision is contrary to a governing principle of law or clearly contrary to the evidence in the case. Bottom line, is the courts will hold the client to what the lawyer did. Get an experienced probate and trust attorney.
The governing principle of law is that, “A will is to be construed according to the intention of the testator. Where his intention cannot have effect to its full extent, it must have effect as far as possible… 84 O.S.2011 § 156, provides a clear and distinct devise or bequest cannot be affected by any reasons assigned therefor, or by any other words not equally clear and distinct, or by inference or argument from other parts of the will, or by an inaccurate recital of our reference to its contents in another part of the will.”
“A well settled rule of construction applied to wills is that an absolute estate or certain specific interest given to a devisee by clear and unambiguous language will not be cut down, affected, impaired, or qualified in the same or a subsequent provision by inference or argument, but will be qualified or cut down only by words equally clear and distinct as the words constituting the devise, whether such words are contained in the same or a separate provision.”
“Where an estate has been given in an earlier part of the will and is clear and definite, construction will not give an strained and unnatural effect to the language occurring in subsequent paragraphs in order to cut down or impair the integrity of the gift, where the subsequent language is not definite and certain, but, on the other hand, is doubtful and ambagious.” An experienced probate and trust lawyer would know this rule, and know better than to violate it.
This case is teaching that you need an experienced probate and trust lawyer to make your will or trust. Do not use forms off the internet, or off the shelf somewhere. Do not use a lawyer who is not proven as an expert by the test of time. Mistakes caused by inexperience will not be discovered until much later.
An experienced living trust and will attorney like Brent D. Coldiron knows how to protect your wishes. To prepare your trust and will the correct way. Brent has over 39 years experience. His fees are reasonable. The best money ever spent is to get good experienced legal advice before signing your name to something. Contact Brent at (405) 478-5655 or 737-2244. His website is Brent’s Website Visit his blog at his website.