If the recent Kansas Court of Appeals’ opinion teaches us anything, it is that having an experienced Kansas estate planning attorney is a must in drafting a last will and testament. In re Estate of Leavey details a will execution gone horribly wrong.
In the case, Harriet Eggeson petitioned the court to admit the last will and testament of John F. Leavey. Unfortunately, the will was not signed by two witnesses, only by one. The witness line left blank was for no one other than the attorney who drafted the will. Eggeson argued that the attorney’s initials, which were on every page of the document, should suffice, but the lower court held, and the Court of Appeals agreed, that “Kansas statutes relating to the execution of wills must be strictly construed even though, in some rare situations, the intent of a testator may be frustrated.” “A witness’s initials in the bottom corner of every page of a document does not meet the attestation and subscription requirement . . . to be a valid will [under Kansas law].”
With the advent of “do-it-yourself wills” in a box and companies such as LegalZoom, this opinion should resonate with even the most casual purchaser of legal services. This case makes clear that strict compliance is the only way a last will and testament will be admitted for probate in Kansas. As the Court of Appeals stated (quoting two previous cases):
While it is unfortunate in this case that the testator’s niece must suffer from the lack of legal ability and understanding of a scrivener who sought to perform a legal act of great importance and solemnity, that of drafting a will and purporting to supervise the execution thereof, it is better that she be denied her would-be beneficial interests in the will than to open the door and set a pattern, by those not versed in the law of wills and in utter disregard to the plain provisions of the statue, for the drafting of future wills so as to permit fraud, undue influence, overreaching and bad faith which might in some other instance be practiced upon the weak, aged or infirm testators in the disposition of their worldly goods.
It is undoubtedly true that from time to time an honest attempt to execute a last will and testament is defeated by failure to observe some one or more of the statutory requirements. It is better this should happen under a proper construction of the statute, than that the individual case should be permitted to weaken those provisions calculated to protect testators generally from fraudulent alterations of their wills.
(emphasis added).
As an aside, I think many readers will be surprised to read what LegalZoom includes in its disclaimer:
Although LegalZoom takes every reasonable effort to ensure that the information on our website and documents are up-to-date and legally sufficient, the legal information on this site is not legal advice and is not guaranteed to be correct, complete or up-to-date. Because the law changes rapidly, is different from jurisdiction to jurisdiction, and is also subject to varying interpretations by different courts and certain government and administrative bodies, LegalZoom cannot guarantee that all the information on the site is completely current. The law is a personal matter, and no general information or legal tool like the kind LegalZoom provides can fit every circumstance.
(emphasis added). So what exactly are its customers paying for? It cannot be legal advice because that would be the unauthorized practice of law.
All in all, individuals contemplating executing a last will and testament should consult with an experienced Kansas estate planning attorney. Failure to do so, may lead to a very unfortunate result. For further proof do-it-yourself does not always work, check out this example where after trying to kill his parents a man still inherited $500,000 despite his parents’ attempts to disinherit him.
– ksmolawyer
Related posts:
- Three proposed changes that could significantly affect your estate plan.
- An effective and experienced estate planning attorney can prove invaluable in protecting your dependents.
- With no federal estate tax in 2010, do I really need an estate plan?
- Look both ways before you cross the street in Kansas.
How much money does the Treasury typically print?
Are you a professional journalist? You write very well.
Interesting and informative. But will you write about this one more?
Very interesting and amusing subject. I read with great pleasure.
In the Uk we struggle with who should write your will. I have seen many people go the do it yourself route and I would say unless your estate is very simple and your wishes even simpler do not go this route.
Estate planners are usually highly trained and with have a network of financial advisor, and taxation advisor as well as trust solicitors behind them.
If you want a professional job employ a professional or it could cause heartache and cost to your loved ones.
Regards
Will