The Words You Choose – Law Regarding Wills Archaic, Counter-Intuitive

Why Writing Your Own Will Is A Bad Idea by Hammerle Finley Law Firm in Lewisville, TX

Before you draft your own will, consider the cautionary tale of Mildred L. Ethridge. We will helpfully count the mistakes as we go.

In 1990, Mildred drafted her one-page will. She did it without wasting money on silly things like legal advice.

Mistake one.

In her will, Mildred wrote that she made it “for the purpose of distributing my entire estate, real, personal and mixed.” She further wrote “I give Fred D. Davis, Jr. all my personal effects to clear my estate after my death.” She failed to either define the term “personal effects”  or to include a residuary clause, which is a catch-all paragraph along the lines of “I give the rest of my property, of whatever nature and wherever situated, whether real, personal or mixed, to [X].”

Mistake two. Shall we continue?

Mildred died in 1994. Fred D. Davis, Jr. probated Mildred’s will and filed an estate inventory listing a checking account, furniture, a television and other assorted items.  Interestingly, he omitted any mention of her mineral interests.

Mistake three.

When the royalties from the mineral interests started to flow in to Mildred’s probate estate, Fred scooped them up for himself. He also distributed to himself the cash, the furniture and the television.

That’s mistake four, but we are not yet finished.

In 2010, Mildred’s heirs found out about the royalty payments and asked Fred for an accounting. He ignored them.

Five and done. The heirs sued.

Now for the law.

A court construes a will by focusing on the intent of the testator (Mildred). The intent is determined by looking at the words Mildred actually wrote in her will, not what she may have intended to write. When a will does not include a definition for a term, the law inserts the usual and customary meaning. Since Mildred did not define the term “personal effects,” the Court used the customary definition: only things that had an intimate relation to the testator, such as clothes, jewelry, eyeglasses and dentures.

Whether or not Mildred knew the customary meaning when she used that term in her will is irrelevant.

The law says that all of the words are read to be harmonized, every word must be considered, and the court cannot supply any words it thinks are missing.

Looking only at the words used in her will, it was clear that Mildred knew her estate could include “real, personal or mixed” assets, but that she left only personal effects to Fred. The words she chose did not dispose of her mineral interests, royalties, cash, furniture or TV. Normally that omission would be cured in a will by a residuary clause, but Mildred did not include such a clause in her will and the court could not infer it. 

When a will omits property, then that omitted property goes intestate to the heirs.

The result? The heirs got the mineral interests, royalties, cash and furniture. Fred got booted as executor and was left only with Mildred’s clothes (and dentures).

Did Mildred really intend that result? The law did not care and it will not care about your real intention for your will. It is all about the words. Choose them carefully.

Virginia Hammerle is a Texas attorney whose practice includes estate planning, guardianship and probate. Sign up for her newsletter at legaltalk@hammerle.com. Contact Hammerle Finley Law Firm to schedule a consultation at hammerle.com.

This column does not constitute legal advice.