A Last Will and Testament is called “Last” because it’s the presumed final statement of the wishes of the person who has passed away. The terms need to be in writing and duly signed, witnessed, and notarized according to the law. (New developments to facilitate electronic signatures are a topic for a different day) These requirements are there in an effort to ensure that it’s clear to the world just what the deceased person intended. A spoken conversation does not create a “Will.” With that said, there have been plenty of cases in which somebody generously left a bequest to a charitable organization in their Will or Trust, but used the wrong name for the organization or failed to specify whether the bequest should go to the national parent organization or to a local chapter. The result? Litigation, often expensive. A recent case illustrates this problem very well.
The case was In the Matter of the Estate of DeConca. This was an appellate court decision. It is “not approved for publication,” which means that the decision and rationale are limited to the facts of the case and are not precedential (binding) on lower courts. However, this case gives you a good understanding of the problems that can arise when a person is imprecise in their drafting or just doesn’t update the Will when circumstances change. Here is the entire Decision: DeConca Estate App. Div.
| Lois DeConca had left 5% of her revocable trust to the “Alzheimer’s Association, New Jersey chapter” and listed an address in Denville. Until 2009 she had donated money to the National Alzheimer’s Association Inc. (AA) based in Chicago. After 2009, all of her donations went to a NJ organization, which was actually called the “Alzheimer’s Disease and Related Disorders Association, Inc. Greater New Jersey Chapter.” She amended the Trust in 2009 to change the designee of this bequest to the “Alzheimer’s Association, New Jersey chapter,” apparently believing that it was actually an affiliate of the National AA (which it wasn’t). In this Trust amendment, she used the correct local address but used an incorrect entity name. In 2015, this local affiliate broke off from its national entity and became an independent 501(c)(3) organization using a name that was different than the one in the Trust, She died in late 2017 and her Executors/trustees did not know who was to receive the bequest and needed to file a court petition for instructions. They needed to file suit to ask the Court to give them instructions.
The Court needed to determine the actual intention of Ms. DeConca, and to do so, a trial was necessary with testimony and documentary evidence. Ultimately, the Court found that her intentions after 2009 were to support the local New Jersey organization in Denville that supported Alzheimers’ issues, and awarded the bequest accordingly. However, the unhappy party appealed. The appellate court sustained the trial court’s decision. It’s apparent that as a result of this ambiguity, much time passed. The trial Court’s decision was entered a year after Ms. DeConca died. The Appellate decision was entered 16 months later. Careful drafting and careful planning can avoid problems down the line. Call us to update your Wills, trusts and other legal estate plan documents …. 732-382-6070 |