This remarkable court case from Oklahoma demonstrates how crucial it is to have a clearly written will, ideally by an experienced estate planning professional:
A man passed away and was survived by two adult children and a grandson. The man left a one-sentence handwritten will – called a holographic will – that left all of his property to his grandson.
The probate court appointed the adult daughter to be Special Administrator of the estate. The grandson filed the holographic will for probate asking that the estate be distributed according to the will before the daughter filed her petitions with the probate court.
The grandson’s case for claiming that the holographic will represented his grandfather’s intentions was good. The deceased man’s adult son had previously shot his father, leaving him with permanent, life-long injuries. The adult daughter had been financially irresponsible and had damaged her father’s property.
Although the grandson won the case in the trial court and the appeals court, the Oklahoma Supreme Court ruled against him. The court stated that the will had to expressly mention the two children for them to be disinherited and needed to state that it was the father’s express intention to leave them with nothing from his estate. This one-sentence will had not mentioned the two adult children at all.
While many people would reason that the man failing to mention the two children is an indication that he didn’t intend to leave them anything, the law in most states disagrees. In order to disinherit someone who would inherit under the law in the absence of a will and who would be expected to inherit something, that person must be named in the will and it must be stated that they are being disinherited. An explanation for why they are being disinherited isn’t required, though such an explanation can be helpful in case the will is contested. Alternatively, instead of completely disinheriting someone, you could instead leave the person a relatively small inheritance, which makes it clear that you didn’t simply forget them.
Many states do not even accept handwritten (holographic) wills, and different states have different rules for what makes a holographic will legally valid or conditions under which such a will can be accepted.
Many people don’t have up-to-date, professionally-written wills because they believe the cost is too high or feel it is unnecessary. However, the cost of probate while trying to prove the validity of a holographic will can easily exceed the cost of having an estate planning attorney write a basic will. Also, without a formal will, disputes and contests over the estate are much more likely, your property may be distributed in ways you do not want after you pass away, and your surviving family and loved ones may face much more stress and conflict over your property than you would intend.
For help creating or updating your estate planning documents, contact us at Wilson and Wilson Estate Planning and Elder Law, LLC at 708 482 7090 for our main office in LaGrange, Illinois or at 847 656 8958 for our Northbrook, Illinois office.