An Example of Why You Should Have An Attorney Draft Your Will

An Example of Why You Should Have An Attorney Draft Your Will

Today’s example of DIY will language that cost a lot of money comes from the late Ms. Vada Wallace Allen. The issue surrounds a 316 acre tract of land the Ms. Allen conveyed to her son Bobby in some form.

The provision in her will that caused the problems reads as follows:

NOW BOBBY I leave the rest to you, everything, certificates of deposit, land, cattle and machinery, Understand the land is not to be sold but passed on down to your children, ANNETTE KNOPF, ALLISON KILWAY, AND STANLEY GRAY.  TAKE CARE OF IT AND TRY TO BE HAPPY.

Seems simple enough, right? A lot of people might draft that very type of provision in their will and think nothing of it.

What do you think it means?  Who ultimately has the right to own the land in fee simple and sell the land if they so please?

Bobby thought this language means that the 316 acre tract was devised to him in fee simple and the rest of the language was merely an expression of Ms. Allen’s wishes that he pass it on down to his children.  Alternatively, Bobby thought that the rest of the language constituted an unenforceable disabling restraint.

Bobby’s children thought the language meant that Bobby only had a life estate in the land and that upon his passing, title to the land would pass to them.  Under this interpretation, Bobby did not have the ability to sell the land.

What That Language Actually Means

The trial court said the provision means that Bobby owns the land outright and that he can dispose of it as he wishes.  That is exactly what Bobby did as he sold the land in 2014.  This is the transaction that caused Bobby’s children to sue him as well as the purchasers.

Bobby’s children appealed the trial court’s decision but the Court of Appeals agreed with the trial court.

Then, on March 23, 2018, the Supreme Court reversed those decisions.

The Supreme Court of Texas said no, this language did not convey the land to Bobby in fee simple.  Rather, this language granted Bobby a life estate to use and enjoy the property during the term of his life, but upon his death the land passes to his children.

Bobby’s children were right.  Bobby did not have the right to sell the land.

Why It Cost So Much Money

Ms. Allen passed away on June 8, 1993, and her will was admitted to probate on November 9, 1993.  That was 25 years ago.

Bobby conveyed the land in April of 2014.

And in November of 2014, his children filed suit to contest the conveyance.  They had a trial in Robertson County.  Then they appealed the trial court decision to the Court of Appeals.

Then they appealed the Court of Appeals decision to the Supreme Court of Texas.

The Supreme Court’s decision came down almost 4 years after the attempted sale of the land and 25 years after Ms. Allen passed away.

That is a lot of attorneys fees – for each party to the dispute.  And I bet being on opposite sides of a lawsuit did not do much to help the family dynamics between Bobby and his children.

Had Ms. Allen had an attorney draft her will and include appropriate language documenting her intent to convey a life estate to Bobby with the remainder to his children, then the costs and conflict could have been avoided.

Bryan Willis

Bryan Willis

Bryan Willis is a Tyler lawyer who represents clients in the areas of Divorce, Probate, Estate Planning, and Business Law.
Bryan Willis

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