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Courts Will Not Create a Will or Trust Where None Exists

By Lewis J. Pepperman

What happens when an individual hires an attorney to engage in estate planning but never signs a will?  Will the "probable intent" of that individual be carried out or will it be ignored because the will was never signed?  The simple answer is that a failure to sign a will can have disastrous results.

On December 29, 2010, in the case of "In The Matter Of The Trusts To Be Established In The Matter Of The Estate Of Margaret A. Flood, Deceased", the Appellate Division of the Superior Court of New Jersey found that probable intent could not be carried out if there was no signed will and an individual dies intestate.

In the Flood case, the decedent, who was a widow, had four children.  Two of her children were disabled and were receiving benefits from supplemental security income and Medicaid.  One was receiving benefits from the Division of Developmental Disabilities (DDD).  The decedent was concerned about protecting any inheritance that she might leave to her disabled children from any obligation they might have to reimburse the governmental entities that had provided them with services. 

The decedent died before she executed a will or testamentary trust.  The administrator of her estate went to Court to establish and fund the trusts that the decedent would have created had she not died before executing a will.  These trusts would have protected the inheritance for the children.  DDD opposed the relief sought.  At stake was $480,000.

The Trial Court held that the law would allow the decedent's intent to be carried out.  However, the Appellate Division reversed the Trial Court and found that the Court could not do what the decedent failed to do.  The Appellate Division found that while the doctrine of "probable intent" could be used to create a testamentary disposition when an individual had executed a will, it could not be used when a will was never executed.  The Appellate Division noted that the doctrine could not be used "...to write a will that the testator did not write".  The doctrine could be used to construe a will, but not to create a will. 

The simple lesson from this case is that if you want your intentions carried out, you better take care of completing your estate plan, and not just think about it.

Full post as published by New Jersey Law Blog on January 24, 2011 (boomark / email).