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Thinking of Writing your Own Will? The Dangers of Changing a Will Without an Attorney

Cracked gold egg. Dangers of doing your own estate plan

As an attorney who works in the Trust and Estate field, I frequently run across the question of why someone should pay an attorney to do their Estate Plan. After all, a professionally done will, trust, or other estate planning document can cost between several hundred to thousands of dollars. Is it really worth it?

The answer is usually a very firm Yes. And this is not because I want individuals to pay me to do their estate plan. It’s because the majority of my cases are litigations involving poorly done wills or trusts. There will continue to be individuals who fail to properly do their estate plans – of that I have no doubt. There’s no shortage of business for attorneys in the field of trust and probate litigation. But in the meantime I want to encourage as many individuals as possible to invest in a sound, professionally done estate plan which has been thoroughly thought out and put together by an experienced Trust and Estate lawyer. It’s your safest bet. Cleaning up a messy estate after the fact costs far far more than an estate plan will. 

Now, I could tell you dozens of stories about the cases I’ve personally handled – and the Estate Planning guffaws I’ve seen people make. However, in thinking about pop superstar Prince and his estate debacle, I thought I’d use this woman’s story from Minnesota to illustrate just why you might consider an attorney’s help.

Tale of a Minnesota Will Gone Wrong

A recent court decision in Minnesota brought to light the dangers of amending or changing an existing will without the help of a qualified attorney, and serves as a cautionary tale to those thinking of altering their estate plan on their own.

In 2006 Esther Sullivan executed a will that gave half of her property to a woman who had worked for her, Tara Jean Johnson.  Ms. Sullivan’s own grandson, Joseph VanHale, received a smaller share of her property.  Two years later, in 2008, Ms. Sullivan allegedly attempted to change her 2006 will by making a photocopy of the original will and then writing in changes which she initialed, and then signed and dated the bottom of each page. Among the changes she replaced Ms. Johnson with her grandson, Mr. VanHale, as the beneficiary of half of her estate.

Again, in 2010, Ms. Sullivan allegedly attempted to execute another will using a form she downloaded from the Internet. This document named Mr. VanHale as her only beneficiary.

After the death of Ms. Sullivan in 2013, the probate court had to make a decision to determine which of the three wills should be followed.  Ms. Johnson contended that the 2006 document was the valid will, while Mr. VanHale argued for the 2010 will.

The court  ruled that both the 2008 photocopy and the 2010 downloaded document were invalid because they did not comply with the state’s requirement that a will must be signed by at least two witnesses. The court recognized that Ms. Sullivan probably intended to revoke the 2006 will but did not do so successfully.  Mr. VanHale appealed the decision, saying that Ms. Sullivan’s intentions to revoke the 2006 will were clear and the 2010 will was valid.

But on August 17, 2015, the Court of Appeals of Minnesota agreed with the lower court that the 2006 will should be the one admitted to probate. The court ruled that only an original will can be revoked, not a photocopy. The court also agreed with the lower court that the 2010 will had not been validly executed. This court case is a stark example of why, if you want to change your will or another part of your estate plan, it is wise to do so under the guidance of your attorney. People’s lives and relationships change, their circumstances change, and estate plans need to be revised to reflect these changes. 

Ms. Sullivan may have changed her mind as to whom she wished to inherit her estate, but the fact that she did not do it properly resulted in the courts deciding for her who the beneficiary would be. Additionally, several attorneys also became her beneficiaries, eating up a large portion of her estate.

This case may seem like a wild tale of something that occurs once in a blue moon. It isn’t. While most probate litigations won’t wind their way through multiple courts, or make it to trial, they are still emotionally devastating for those involved, and far more costly than a properly done estate plan.

For questions about wills, trusts, powers of attorney, or healthcare directives in California, contact my office at 925-322-1795 for a consultation. 

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