San Diego Estate Planning Lawyer Blog
A last will and testament is an important legal document that provides for the distribution of your property after your death. A will is not something to be prepared casually or haphazardly. You should always work with a qualified San Diego estate planning attorney before preparing or revising a will. Even if you think you understand the requirements of a will, an estate planning attorney can ensure there are no drafting mistakes that may lead to confusion-and litigation-down the line.
Banner v. Vandeford
Consider a recent decision by the Supreme Court of Georgia. Three adult siblings argued over the meaning of their father’s will. John Huscusson signed his will in 2012. The document was prepared by an attorney and executed in full compliance with Georgia law (which is similar to the law of California). There was no question the will was valid.
But there was an ambiguity due to the omission of a standard clause. A will generally makes two types of gifts: First, specific bequests of property to named individuals; second, a residuary clause (or residue clause) that disposes of any property remaining in the estate. Huscusson’s will made specific bequests but contained no residuary clause.
In Georgia, as in California and most states, if a will contains no residue clause, then the residuary estate is distributed according to the state’s intestacy law-that is, the automatic distribution of property to legal heirs in the absence of any valid will directing otherwise. Since Huscusson left three children, they were his heirs-at-law and the residuary estate should then be divided equally between them.
One of Huscusson’s daughters, Tina Banner, disagreed with this outcome. Banner was named executor in her father’s will. She argued Huscusson intended to disinherit his other two children and leave his entire estate to her. Banner pointed to the fact that Huscusson ‘s will made specific bequests of $10 each to Banner’s two sisters, with the admonition he was “extremely disappointed” in them. He made no specific gift (or expression of disappointment) to Banner.
But as the Georgia Supreme Court said, the terms of the will were “plain and unambiguous and must control .” And there was no language expressly disinheriting any of the three children. More importantly, there was no residuary clause naming Banner as sole beneficiary. “[A]lthough it may be unusual for a testator to omit a residue clause,” Georgia Chief Justice Hugh P. Thompson wrote, “this Court cannot supply one. ” The Supreme Court therefore affirmed a lower court’s decision awarding the residuary estate equally to the three children.
Always Include a Residuary Clause
There’s little point in going to the trouble of preparing a will if you don’t include residuary clause. It’s impractical to make specific bequests for all property that you own, both now and in the future. And if the intent of your will is to ensure an equitable division of property among certain heirs, the absence of a residuary clause may defeat that purpose. It’s only common sense that your will should reflect a complete distribution of your property. Please contact the Law Office of Scott C. Soady today in San Diego if you have any questions.