Do-it-yourself wills present a lot of problems. One problem is highlighted in a recent Texas Supreme Court case, Knopf v. Gray, decided March 23, 2018.
In that case, the parties were in a dispute over the ownership of a tract of land. Vada Wallace Allen died, leaving a do-it-yourself will. She specifically referred to 316 acres of land in Robertson County, and said:
“NOW BOBBY I leave the rest to you, … 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.”
Bobby and his wife, Karen, conveyed the land to Polasek Farms, LLC. Annette Knopf and Stanley Gray sued Bobby, Karen and Polasek Farms seeking a judgment declaring that Vada Allen’s Will gave Bobby only what the law calls a “life estate” and not full title.
Under old English law, ownership of land could be divided in two ways – spatially and in time. By spatially, I mean something like dividing land so one party gets one specific area, and another party gets another, distinct and different area.
Dividing in time occurs a number of ways. One simple everyday way is a lease, where the owner gives a tenant the right to use and occupy the land for a specified period of time. While most leases are not recorded in the deed records, in some cases, the parties record something in the deed records to let everyone else know that the land has a lease on it.
Another way to divide land by time is to have one person own the right to use and occupy the property until that person dies. That type of ownership is a life estate. The life estate owner holds the limited right to use and occupy the property until the end of his or her life. When the life estate owner dies, the original person who gave the life estate owner his or her life estate gets the property back. Or in some cases, the original owner designates who is to get the “remainder interest” when the life estate owner dies.
So when there is a life estate owner, the land ownership is divided into a “life estate” and a “remainder.” The life estate owner can sell or transfer his or her life estate to someone else, but the transferee only gets the right to use and occupy the property until the transferor dies.
In this case, Knopf and Gray claimed Bobby had only a life estate and that they and Allison Kilway were the owners of the remainder interest. And as a result, they claimed that Polasek Farms got only what Bobby had, which was the right to use and occupy the property until Bobby died.
This case got to the Texas Supreme Court by first going through a trial, and then through an appeal to the Court of Appeals. In both instances, the trial court and the appellate court ruled in Bobby’s favor.
But the Texas Supreme Court changed that, agreeing with Knopf and Gray, saying that all Bobby got was a life estate. The Supreme Court looked at the will and divided the gift of the property into three phrases. It then said that each was a clue about what Vada Allen intended. The first part gave the land to Bobby, but the second part — the part that said the land was not to be sold — took something away from the gift of the land to Bobby. And the part about passing it along to Knopf, Kilway and Gray meant that the three of them were getting something at the same thing Bobby was. That is, Bobby was getting the life estate, and Knopf, Kilway and Gray were getting the remainder interest.
This case is a warning to everyone out there trying to do a will without the expertise of an attorney who specializes in preparing wills. The law has for centuries grown up around recognized phrases like “life estate” and “remainder interest” which lawyers recognize but many not trained in the law never have head of. It would have been easy for an attorney to help Vada Allen use the right words in her Will which would have made very clear what she wanted. An experienced lawyer could have helped Vada Allen think through a host of issues related to the land. In the end, she could have achieved her goal, and there would not have been the tens of thousands of dollars (or perhaps hundreds of thousands of dollars) in legal fees which were ultimately spent on figuring out the meaning of the words in her will.
Sadly what we will never know is what she actually meant.
I hope this helps.