A recent estate planning horror story illustrated why updating a Will, and being very careful with the language in a Will, is important.
For those who may not know the full definition of a Last Will; it's a document a person drafts in order to dispose of his or her property after death. With a few exceptions, if the Will is properly signed and witnessed, and the drafter is competent, then the Will dictates what property goes to whom.
Unfortunately, many people fail to update their Will on a regular basis, and clauses in the Will can become outdated and no longer applicable to those who are alive when the drafter passes away.
Case in point: John Hunger. John married the love of his life in his thirties and moved to Minnesota. His wife, Evelyn, had two children from a previous marriage. John raised the two step-children as his own and the family had a fantastic relationship, but John never formally adopted them as there didn't seem to be any reason.
Doing the responsible thing, John drafted a Will that disposed all of his assets to his Wife, but if she were to predecease John, then his assets would go "to my beloved children".
Tragically, Evelyn died several years before John in a car accident. All of Evelyn's assets went to John. John's Will remained where it always had and he never re-drafted the Will or took it to an estate planner.
When John died, the only potential heirs were the step-children and a few siblings of John's. John's estate was worth several hundred thousand dollars, and the children challenged the Will in probate court because John had used the word "children" and not "step-children" to describe his heirs. Further, John never mentioned the two by name. Thus, the clause in the Will would be unenforceable and the assets would bass by state law - to John's only living relatives, his siblings
The Court held in favor of the siblings. The term "children" has a special and distinct meaning in the law. The two step-children were never adopted, and thus were not named in the Will.
John clearly intended his inheritance go to the children, but had assumed that Evelyn would survive him, and thus his asset would go to Evelyn and then to the step-children. Now none of Evelyn's assets went to them, because John inherited Evelyn's assets. Now none of John's assets would be inherited by the children, because the language in his Will was flawed. A sad outcome indeed.
Wills should be reviewed at minimum of once every 5 years (preferably once per year) to see if heirs have passed on or if you have changed your mind on how you want your assets divided. A routing review takes no more than a few minutes, and once in a while it may be beneficial to have an attorney review a Will to make sure your desires are properly documented.
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