Making Sure Your Will and Your Wishes Are Met

In 2005, Edwin Fisher executed a Will which established two trusts for the benefit of his wife.  The trusts were established to minimize death taxes upon their deaths.  His wife predeceased him.  He died in 2008.  The remainder of one trust was to be distributed among a variety of charities.  The other trust was to be distributed among a number of nieces and nephews.

Unfortunately, due to a decline in the stock market, there were not enough assets to fund the bequests to the charities in the first trust and nothing left in the second trust. A suit was commenced by the Executor to obtain permission to distribute everything to the beneficiaries of the first trust.  The nieces and nephews filed an action of their own. After a trial, the court stated that the funds in the estate would be distributed pro rata among the charities and the nieces and nephews.  It did so by invoking what is known as the doctrine of probable intent.  Although the Will clearly did not provide for same, the Court stated its belief that Mr.Fisher would have wanted all parties included.

Based on a review of the case, this may have been a reasonable result.  However, this result came after a massive expenditure of counsel fees and court costs.

The case exemplifies that Wills must be drafted to incorporate not only the circumstances of the day but the future as well.  Proper drafting must also reflect that many assets are owned outside of the estate which typically passes through the Will.  In order to insure that one’s wishes are truly met when he or she executes a Will, proper advice needs to be provided to respond to changes his of her financial and personal background.

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