Homebrewed Amendments

What happens when a man dies with a will or a revocable trust that was originally created by an attorney, but later that man apparently removed some of the pages and replaced them with new pages containing different provisions? Those pages have handwritten changes scratched through them in several places, and were not witnessed in accordance with the statutory requirements.

I’ll tell you what happens. The estate becomes a bloody mess.

Believe it or not, I’ve seen this scenario play out several times. I can only guess that when people try to self-amend their legal documents, they think that it’s easy to do and that there’s no reason to pay a qualified lawyer to get it done properly.

In order for a will or trust (or an amendment to a will or trust) to be legal, the testator must sign it at the end, and the testator’s signature must be witnessed by two individuals who sign in the presence of the testator and in each other’s presence. So when a man rips out a page of his trust, and types a new page to insert instead, he has not complied with the statutory legal requirements to properly amend his trust.

This makes sense when you think about it. How does anyone know whether the pages that were removed and replaced really those of the testator? That’s why we have laws governing the signing of testamentary documents.

So what happens when pages are replaced? That’s when litigation commonly arises between beneficiaries. Assuming that the original pages of the trust (or will) – or copies of them – can be found, the beneficiary who would most benefit from the old provisions (before they were ripped out and replaced) will argue before a court that since the new amendment was invalidly executed, the old provisions should be resurrected and enforced.

Another beneficiary may argue that since the testator ripped out the old page, he intended to revoke that provision and that the document should be read as if the old provisions weren’t ever included. Since the new provisions inserted weren’t validly executed, they’ll look to the rest of the document to see who should get what.

But let’s say that in so examining the documents that there is a gaping hole.  Assume for example that the man ripped out the provision that says to leave 25% of his estate to his sister.  He replaced that provision with one that directs a 25% bequest to his church, but the new provisions weren’t validly executed.

The provisions he left alone direct a 25% bequest to his son and a 50% bequest to his wife.

So if we assume that he intended to revoke the 25% gift to his sister, but that the 25% gift to the church wasn’t signed correctly, who is entitled to that 25%?

Here there are a number of legal theories that may apply. One is called the doctrine of dependent relative revocation. Under this theory, the man intended for his sister to reclaim the 25% if the provision for the church was found to be invalid, as it likely will be.

This Court may follow this theory if the trust or will prior to the one he destroyed gave his sister 25% as well. But let’s assume that his sister did not appear in any prior version of his will or trust. In that case, there are at least two alternative solutions a Court may find.

The first solution would be to declare the man to have died intestate (without a will) as to the 25%.  Here, the Florida intestacy statutes would say who is to receive the 25%. If the man was survived by his spouse and not by any minor children, and if his children are the children of his spouse, then his spouse would likely receive the 25%. But let’s say that the man’s prior trust gave the 25% to his brother. Here, the brother may use the doctrine of dependent relative revocation to claim the amounts as his.

Depending upon the son’s relation to the man’s spouse, the son may also have a claim to some or all of the 25%.

You can clearly see where all of this is going. The church is likely to hire a lawyer to argue their rights to the share, although it would have the least likely chance of prevailing. The spouse, brother, sister and son would also have a potential claim to at least some portion of the 25% in question under various legal theories, so each of them would likely hire a lawyer to argue their case before the judge. Under Florida law, the estate would likely be obligated to pay all of these legal fees from the various claimants.

The poor judge has one big headache. The lawyers have a lot of work to do (and hence a lot of fees to collect from the estate) including reviewing prior wills and trusts, and taking depositions of family members and of the lawyers who drew the trusts. Each lawyer will try to build a case that would prove the man’s intent as benefitting that lawyer’s client. This courtroom drama could drag on for years before being settled or resolved.

As I’m sure one can now see, the man would have saved his family and his estate a great deal of aggravation and expense if he had only hired a qualified lawyer to help him amend his legal documents in the first place.

The Sheppard Law Firm is located in Fort Myers and Naples by appointment.

© 2017 Craig R. Hersch. Originally published in the Sanibel Island Sun.


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Craig R. Hersch

  • Senior Partner,
    • Sheppard Law Firm
  • Florida Bar Board Certified Estate Planning Attorney / CPA
  • Editorial Advisory Board Member,
    • Trusts & Estates Magazine
  • Founder & Board Member,
    • State Chartered Trust Company