By Jason Stern
Almost anyone can, from within the comfort of their own home, draft their own NY will these days using an online template. But this does not mean we should. As an experienced NY estate lawyer with more than two decades of experience probating and litigating NY estates I can tell you even most NY attorneys themselves have trouble properly drafting wills. As a highly experienced NY estate lawyer I strive for simplicity, clarity and above all to ensure the document both makes sense and accurately reflects the intent of the testator when drafting a NY will. Otherwise, if after the testator’s passing the will’s true intent cannot easily be ascertained at face value the NY estate may become embroiled within a NY construction litigation estate proceeding. A NY construction estate proceeding results when the contents of a NY will are not readily discernable. In such cases NY estate lawyers litigate various issues within the meaning of the document at great cost and expense while none of the beneficiaries of the NY will receive their inheritance. The primary purpose of a NY construction estate proceeding is to ascertain and give effect to, the intent of the testator. It has been stated that intent according to the NY estate law is to be gleaned, not from one particular provision or phrase, but from a detailed examination of the entire NY will. Perhaps the worst part of construction proceedings is these cases can linger on indefinitely.
Due to the ambiguous drafting of what we as NY estate lawyers endearingly call “whacky wills”, beneficiaries and loved ones alike are often hurt by inconsistencies within the body of the document. What NY estate lawyers and clients both discount is that once a provision is drafted into a NY will, that is exactly what will ultimately be enforced for better or for worse.
So what is a poorly drafted will? Estate of Jill Morris
Jill Morris was in a romantic relationship with her same sex partner Joan Anderson for nearly twenty years when Jill passed away in 2016 at age 84. While Jill had never had children of her own or married, Joan had her own daughter Emile Anderson from a previous relationship. Jill had executed a NY will drafted by her NY estate lawyer, leaving her partner Joan the bulk of her $9 million dollar NY estate including but not limited to her brownstone in the West Village. Jill’s brownstone, located at 65 Horatio Street, depicted above, is valued at nearly $5 million dollars accounting for more than half of her NY estate. Also included in Jill’s NY will were several strange bequests to friends, in one instance bequeathing a single glass marble that sits on an end table to a beneficiary.
However, the most problematic part of the NY will drafted by her NY estate lawyer is the document’s thirty day (30) survival clause requiring her life partner Joan Anderson to survive Jill by thirty (30) days in order to inherit the bulk of her $9 million dollar NY estate. Otherwise the majority of Jill’s NY estate passes through her residuary clause naming three charities as the primary beneficiaries of her assets.
Unfortunately for Joan Anderson’s heir, daughter Emile Anderson, Joan suffered a stroke and passed away not two weeks after Jill’s death. As such, rather than the $9 million dollar estate passing to Joan’s daughter Emile the bulk of the $9 million dollar NY estate now passes to the three named charities pursuant to Jill Morris’s NY will as drafted by her NY estate lawyer. In other words had Joan Anderson lived twenty more days her daughter would have inherited $9 million dollars. However as written Emile only receives Jill’s pets from her NY estate.
While the purpose of incorporating such a survival clause into Jill’s will by her NY estate lawyer is unclear even more unclear is the fact certain bequests passed outside the NY will’s survival clause. Ironically Article Eighth (8th) of Jill’s NY will bequests several pets to Joan Anderson outside the document’s thirty (30) day survival clause. This means that while the charities stand to inherit Jill’s entire $9 million dollar NY estate, Emile Anderson still inherits Jill’s pets.
You can imagine how frustrated and confused Emile Anderson was to learn that Jill Morris’s entire NY estate would pass to the three named charities because her mother failed to live twenty additional days, five hundred hours. To make matters worse Jill’s NY estate lawyer specifically excluded Jill’s pets from the document’s thirty (30) day survival clause only adding insult to injury to Emile Anderson’s situation.
When NY estate lawyers appeared in this case on behalf of the three named charities claiming the assets of Jill Morris’s NY estate Emile Anderson filed objections to the NY will and petitioned the court for a construction proceeding. For the next three years NY estate lawyers for Joan Anderson’s daughter Emile argued that because some distributions passed outside the document’s thirty (30) day survival clause such as the decedent’s pets while other distributions did not, the clause should be construed as ambiguous and ignored in its entirety.
Unfortunately for Emile Anderson the court did not buy the arguments made by her NY estate lawyers. In the end the court sided with the three charities, enforcing the thirty (30) day survival clause as drafted by Jill Morris’s NY estate lawyer, thereby excluding Joan’s daughter Emile from her life partner’s $9 million dollar NY estate.
If you are thinking about drafting a will it does not hurt to speak to an experienced NY estate lawyer. Feel free to call the NYC estate lawyers at The Law Offices of Jason W. Stern & Associates for a free consultation at (718) 261-2444. Our NYC estate lawyers have over 60 years of combined NY estate law experience drafting and probating the wills for families like yours in the counties of Queens, New York, Kings, Bronx, Westchester, Rockland, Nassau, Orange and Dutchess.