We see it all the time. We ask our clients not to write on their wills or trusts. This weekly newsletter regularly reports stories about how it does not work. Nonetheless, people keep trying to make a will deletion or modification by scribbling on the will itself. Please remember, folks: when the issue becomes important, you won’t be here to tell us what you meant.
A will deletion case from South Carolina
William D. Paradeses died in Columbia, South Carolina, in 2016. His will was in his possession before his death. Paragraph #2 of the will left $50,000 to Faye Greeson. That paragraph had been stricken out, and next to it was handwritten: “Omit $2 W.D. Paradeses”.
The other beneficiaries of Mr. Paradeses’ estate asked the probate court to declare the will deletion valid. Ms. Greeson objected, and argued that she was still entitled to the $50,000 bequest.
The South Carolina probate court ruled that the apparent will deletion was ineffective. The South Carolina Court of Appeals agreed. Ms. Greeson will receive her $50,000. Matter of Estate of Paradeses, April 3, 2019.
Why isn’t the attempted will deletion valid?
But wasn’t it apparent that Mr. Paradeses intended to delete Ms. Greeson’s inheritance from his will? Let’s assume that the handwriting matches that of Mr. Paradeses — or even that he told someone he was making the change. Shouldn’t it be effective?
The English rule has long been that a will requires the signature of the testator and two witnesses. In fact, that rule predates the founding of English colonies in the Americas. The Statute of Wills, first adopted in 1540 (in the time of Henry VIII), set the template for what became American law on wills.
South Carolina, like Arizona, has adopted the Uniform Probate Code. That mid-Twentieth Century law (Arizona adopted it in 1973, and South Carolina in 1986) simplifies many of the requirements for wills and codicils. It still requires some formalities, however.
One way in which Arizona and South Carolina differ. Arizona recognizes holographic wills and codicils; South Carolina does not. A holographic will or codicil must be substantially in the testator’s handwriting and signed by the testator. Caution: many states do not allow holographic wills at all, and those that do may differ in their requirements.
So Mr. Paradeses’ will deletion could not be treated as a holographic codicil — at least not in South Carolina. But wasn’t his intent clear?
Not without witnesses. A handful of states (not including South Carolina and not including Arizona) might overlook that failing, but most would require them. Arizona, at least, would allow witnesses to attest to the will deletion even after Mr. Paradeses’ death — but the larger problem was that no one saw his strikeout or handwriting before his death.
So would the will deletion have been effective in Arizona?
Maybe. We’ll even go with “probably.” But an Arizona probate court would have had to make two leaps. Was the handwriting Mr. Paradeses’? Despite popular notions, it is usually quite difficult to prove a decedent’s handwriting. Besides, the Arizona probate court would have to determine that Mr. Paradeses’ apparent writing of his name was intended to be his signature.
That would only be a possibility under Arizona law because we recognize holographic wills and codicils. The attempted will deletion might well have been treated as a holographic codicil in an Arizona probate court.
So could Mr. Paradeses’ family have just filed his will for probate in Arizona? No. Arizona (presumably) had no connection to Mr. Paradeses or his estate. Heirs and devisees generally can not just pick a probate jurisdiction they prefer; probates generally need to be filed where the decedent lived, where he or she died or, sometimes, where property is located.
What is the take-away message?
We’ve said it before, and Mr. Paradeses’ story gives us a chance to say it again. Don’t write on your will, trust or powers of attorney. You almost guarantee a legal challenge, and the odds of effecting the changes you intend are not great. In fact, the odds are that we won’t be able to figure out your intentions later.
Do you want to make changes to your will? Make a copy, mark it up to your heart’s content, and then take the marked-up copy to your lawyer. Ask her to review your changes with you — she will have questions you didn’t think about, and suggestions about how to effect your wishes. It may seem obvious, but we need to say it: she’s really accomplished at drafting wills, and she does it for a living. A lot. Professionally.
Wouldn’t it be nice to avoid having to pay lawyers to get your wishes on paper? Yes, sure. It would also be nice to avoid paying a computer nerd to fix your computer, or a dental hygienist to clean your teeth. In the meantime, the (very) modest cost of a lawyer to prepare estate planning documents will likely save your heirs far more than that cost in later legal fees.
Consider this: Mr. Paradeses probably saved a couple hundred dollars by just marking up his will. His heirs probably paid several tens of thousands to determine the effect. And if his intent was to actually delete the $50,000 bequest to Faye Greeson, he failed.
Mr. Paradeses actually made two changes to his will. The other one attempted to restrict one of the beneficiaries to only receiving money if they did something (the reported case doesn’t say what) first. That person agreed to do the thing he wanted — but his change would have been ineffective on that score, as well.