Tuesday, October 11, 2016

A "Small" mistake in a will may cost wife hundreds of thousands of dollars!

Do you really want a Will done from an Office Depot will kit?  How about a $99 online will kit? 

The Michigan Court of Appeals recently decided a case where a decedents will was ambiguous and needed to be reviewed again at the trial court.  In this case, the father  provided for his wife and provided for, to a lesser extent, his daughter (from a different marriage).  Most significant in his will was his "residence" which sat on a 43-acre farm.  Here is an excerpt from his will:

I give and devise all of my property of whatever kind and wherever found as follows:

A. I give and devise my residence and property located at 20550 180th Avenue, Big Rapids, Michigan to my wife, ELIZABETH PORTER ZIELSKE, if she survives me.

B. All the rest, residue and remainder of my property of whatever kind and wherever found I give and devise one-half (1/2) to my daughter, ELIZABETH ANN ZIELSKE, of Big Rapids, Michigan and one-half (1/2) to my wife, ELIZABETH PORTER ZIELSKE.

The real property commonly known as 20550 180th Avenue is a 43-acre parcel of “farm” land that contains a house, garage, pole barn, stable, and other out buildings.

In court, the Daughter argued that “the words ‘my residence and property’ refers only to the residence, meaning the house, and the personal property in the house,” further arguing that the rest of the real property located at the address (i.e., the farm land of approximately 43 acres ) was not included in this provision.  This "simple" ambiguity could mean many hundreds of thousands of dollars difference in who gets what!!

The court, tending to agree with the daughter's logic, remanded the case back to the probate court so that it can make findings of fact regarding the testator’s intent after the parties have an opportunity to present extrinsic evidence relevant to that issue.

You find the full case here:  https://db.tt/IrlDVvqH  (In re Estate of JAMES A. ZIELSKE)

Make sure if you are getting a will or trust done for your estate plan, that you get it done from a competent and qualified attorney who knows how to draft the documents to meet the client's intent.

Clayton Wittman
Your Family Attorney

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