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NOT ALL WILLS ARE CREATED EQUAL

A recent case decided by the Georgia Supreme Court shows the importance of a well drafted Will.

The case involved John, who died and was survived by three daughters, Tina, Deborah, and Karen. In his Will, John stated that he was "extremely disappointed" in Deborah and Karen and that he was leaving them $10 each. But the Will did not specify who was to receive the rest of his property. The three sisters disagreed over what to do, so they went to court.

Tina argued that the rest of the estate should go to her because their father disinherited Deborah and Karen by only giving them $10. The attorney who drafted the Will confirmed that intent.

Deborah and Karen argued that because the Will did not say where the rest of the estate should go, it should be distributed under Georgia's "intestacy laws," which govern what happens to property when there is no Will. Those rules would require the estate to be split equally among the three sisters.

Both the probate court and the Georgia Supreme Court agreed with Deborah and Karen. When a Will fails to dispose of all of a decedent's property, then the intestacy laws dictate where the omitted property goes.

To some, this may seem like an unfair result because the father was clearly "extremely disappointed" in Deborah and Karen and only left them $10 in his Will. But the courts decided that it is not a court's role to imply a different intent when it is clear that the Will failed to dispose of all of John's property. Nor should a court substitute its belief about how assets should be distributed in place of what the law provides when looking at both the Will and applicable law. Because John failed to include all of his property in his Will, the courts must allow the intestacy laws to determine who receives the balance of the estate. If it was truly John's intent to give the rest of his estate to Tina, then he could have done that by simply adding a "residual clause" to his Will, giving everything else not otherwise disposed of under the Will to Tina.

What you say in your Will is of critical importance. This is because you cannot testify about your intent after you are gone. Your Will becomes a statement of the changes you want to how your property would be distributed under the intestacy laws. If your Will is erroneous or incomplete, or if it fails to meet all necessary formalities, then your wishes will not be fulfilled.

If you would like assistance with preparing your Wills, or if you would like to have your current Wills analyzed to ensure that they are clear, complete, and meet your intent, please contact Richard H. Bennett, Bruce H. Gaynes, or Joel S. Arogeti of our firm.