Mr. and Mrs. Jones have family, execute wills

The Joneses lived in a very, very fine house with two cats in the yard. Everything is easy. They have two kids, a boy and a girl. Eventually, their daughter Stacie marries and has a son named Eric. Their son Joseph also marries and has three children, twin girls and a boy. Mr. and Mrs. Jones execute wills when they are in their 50s and protectively place them in their safety deposit box, content they have made their wishes clear as to how to distribute their property at their deaths.

Tragedy hits, wills are not revised

Then everything gets hard. Joseph, a reservist in the military, is sent to Afghanistan where he is killed. The family is devastated. Mr. Jones can’t seem to adjust. His blood pressure spikes. His health spirals down. He dies at age 61 of a heart attack.

In the intervening years after the Joneses wrote their wills, no one thought of the documents until the day after Mr. Jones’ funeral when Mrs. Jones removes her husband's will for probating. Even then, Mrs. Jones doesn’t review her own will. The wills are simple. Mr. Jones leaves all his property to his wife unless she dies before him, in which event all his property goes to their children. Mrs. Jones’ mirrors his. What is there to review?

Mrs. Jones lives 10 more years, never revises will

Mrs. Jones’ will lies unrevised and gathering dust in the safety deposit box for another 10 years until her death. Now everything gets really hard. The family is falling apart because Stacie and her nieces and nephew are quarreling over inheritance. Mrs. Jones’ will leaves everything to her children, since her husband predeceased her. Joseph’s three children claim that they are entitled to split the one half of Mrs. Jones’ estate that would have gone to their father since they are his descendants. Stacie claims that, since her brother is dead, she is entitled to all of the property in her mother’s estate.

A lawsuit is filed

Stacie and her nieces and nephew cannot resolve their dispute and file a lawsuit requesting the probate court to interpret the will. Who takes the property? The question is answered by determining the intent of the testatrix, Mrs. Jones. To determine intent, the probate judge will look at all the language in the will.

Was the court’s determination what she wanted?

Mrs. Jones’ will stated that in the event that Mr. Jones “predeceased” (died before her) all her property was to go, “to my children, Stacie and Joseph, per capita.” The probate judge found Stacie inherited all her mother’s property and her nieces and nephew took nothing because the words "per capita" were inconsistent with allowing descendants of the deceased beneficiaries to be included as beneficiaries. The court found the words “per capita” were inconsistent with a “per stirpes” or a “per capita with representation distribution,” which would have allowed descendants of the deceased beneficiary to inherit under the will.

Did Mrs. Jones intend for her daughter to have all of her property and her nieces and nephew to have nothing? We will never know for sure, but it is not unlikely that she wanted the estate to be divided and for grandchildren to take her deceased son’s half. It is very likely that Mrs. Jones did not fully understand the importance of those two little words. Most people, including many lawyers, are unfamiliar with the technical differences between the terms “per capita” and “per stirpes.” It is best to avoid using these confusing terms at all in a will.

Wills should make intentions clear

The lesson for the rest of us is clear - wills should be drafted in plain language to make our intentions absolutely clear. Any will that results in litigation for interpretation wastes resources of the estate - such litigation is costly.

What could Mrs. Jones have done (and what can you do) to avoid the confusion? She could have, and should have, simply stated what she wanted. If she wanted one child to have all her property if the other child died, she should say exactly that. If she wanted her grandchildren to take that child’s share, she should have stated that as clearly.

Legal assistance recommended in drafting wills

In today’s digital age, it may be tempting to take advantage of the free Texas will forms that are advertised on the internet. But many of contain pitfalls, including the one addressed in the Joneses’ situation. The cost of having a will prepared by a competent lawyer is far less than the expense of having a court determine the intent in a “free” will.

It is important to have lawyers familiar with current cases interpreting language in wills. For instance, the phrase “who shall then be living” after “my children” or “my nieces and nephews” might seem clear, but that phrase lead to a lawsuit which was decided by the Waco Court of Appeals in 2010. An internet form may not have been updated to reflect the current legal decisions that could affect it.

Sandra W. Reed is an attorney with Katten & Benson, an elder law firm in Fort Worth. She lives in Somervell County, near Chalk Mountain. If you have questions about this column or wish to suggest a topic of interest, she may be contacted by phone at (254)797- 0211 or