Estate Litigation – Avoid it With Careful Drafting
In the recent Washington Court of Appeals case Henderson v. Schmoll, we see the significant cost of sloppy legal drafting. We also see the comparative ease of avoiding that cost.
Edith Henderson signed her Will in 1982, leaving her home to her daughter, Jane. But that bequest contained a condition: when Jane sold the property, half the proceeds would go to Edith’s son, Norman. Norman died in 2018, and Jane died in 2021 without selling the home. Edith’s lawyer did not contemplate that scenario in drafting her Will. After Jane’s death, Norman’s wife, Carol Henderson, who was executor of his estate, filed a creditor’s claim against Jane’s estate for Norman’s share of the proceeds. Jane’s executor, Pam Schmoll, rejected the claim, refusing to pay.
The Lawsuit
Carol sued, challenging the rejection of the creditor’s claim. The trial Court granted summary judgment in Carol’s favor, finding the Will contained an express Trust. Jane’s estate appealed, arguing the bequest violated the rule against perpetuities, that no express Trust was created, and that the deed conveying the property was invalid.
Ultimately, Carol (i.e. Norman’s estate) prevailed – the Court rejected the arguments of Jane’s estate / Pam. Instead, the Court affirmed the trial court’s summary judgment order, holding that Edith’s Will did indeed create an express Trust exempt from the rule against perpetuities, entitling Norman’s estate to half of the property sale proceeds.
Takeaways
If you intend to create a Trust inside your Will, make sure your lawyer drafts it clearly and obviously. The Henderson Court took a good hard look at key words and context to decipher Edith’s intent. For example, the Will drafting forced them to analyze the word “when” to determine its limiting scope of discretion, and the word “shall” to help indicate the existence of an express Trust. The Court also relied on what a lack of language meant, and Edith’s intent due to the omissions.
But the parties could have avoided spending many thousands of dollars in litigation fees if Edith’s lawyer had simply conveyed her intent clearly in her Will. Clear drafting helps prevent misunderstandings and disputes among beneficiaries, and it ensures that the estate plan is effectively executed according to the decedent’s wishes. Clear drafting avoids ambiguity, which leads to legal disputes and the need for Court intervention to attempt to interpret the decedent’s intent.
Whether you need a properly-drafted estate plan or you are facing an estate dispute, the lawyers of Beresford Booth are here to help.
To learn more about Estate Litigation – Avoid it With Careful Drafting, please contact Beresford Booth at info@beresfordlaw.com or by phone at (425) 776-4100.