An extraordinary court case from Oklahoma shows the importance of having a will that is in writing and clearly written, preferably by an experienced estate planning professional.
A man passed away, survived by his two adult children and a grandson. He left a one-sentence handwritten will (known as a holographic will) that left everything he owned to his grandson.
The adult daughter was appointed Special Administrator of the estate by the probate court. Before the daughter could file her petitions with the probate court, the grandson filed the holographic will for probate, asking that the estate be distributed according to the will.
The grandson had a good case for claiming that the holographic will represented his grandfather’s intentions. The deceased’s adult son had once shot his father. The father sustained injuries that plagued him for life. The adult daughter had a history of being financially irresponsible and had damaged her father’s property over the years.
The grandson won the case in the trial court and the appeals court.
But the Oklahoma Supreme Court ruled against the grandson. The court said for the two children to be disinherited the will had to expressly mention them and also state that it was the father’s express intention to leave them with nothing from his estate. Instead, the will didn’t even mention the two adult children.
While many people would conclude that failing to mention the two children is an indication the father didn’t want to leave them anything, the law in most states disagrees. To disinherit someone who would inherit under the law if there weren’t a will and who most people would expect to inherit something, you have to specifically name the person and state that he or she is being disinherited. You don’t have to explain why, though that is helpful in case the will is contested.
An alternative to completely disinheriting someone is to leave the person a relatively small inheritance, making clear you didn’t forget about him or her.
Many states now won’t accept a handwritten, or holographic, will. Some will except holographic wills but only under limited conditions that convince the court the will really was written by the deceased and represented his or her final wishes. Those are high hurdles to pass. Meeting them is likely to make the cost of probating the estate far more than it would have cost to have an estate planning attorney write a basic will.
Many people don’t have current, professionally-written wills because they don’t want to incur the costs or don’t believe it is necessary. But not having a formal will encourages disputes and contests over the estate and increases the likelihood that your property will be distributed in ways you wouldn’t want.