Case Study 3 – The disadvantages of writing your own will
Eddie, age 70, decides to write his own will. He is a widower and had four children and eight grandchildren. Two of his children, Rob and Pete, are unmarried and have no children. Kate, his oldest child, is married and has two children while Mark, his youngest child, has six children. Mark, who was married, is deceased. Eddie borrows some language from an old legal textbook and he leaves everything equally to his children who survive him and to the descendants of his children who predecease him, per capita. Kate and a neighbor witness Eddie's will, signing on lines directly below his name.
Answers for South Dakota Residents
The following answers are based upon South Dakota law as of January 2005. The laws in other states may be different. Laws are subject to change, so please ask your attorney for answers to specific questions.
1. How old does Eddie have to be to sign a will?
- South Dakota Answer: B. 18
2. Eddie has disinherited his oldest child, Kate.
- South Dakota Answer: False
- An interested person witnessing a will does not invalidate the will or any portion of it. A beneficiary can be a witness to a will but it may raise questions of undue influence.
3. Eddie has disinherited his oldest child Kate's children.
- South Dakota Answer: False
- If Kate dies before Eddie, Kate’s children will take Kate’s share even though she witnessed the will. If Kate survives Eddie, her children will not receive a portion of the estate at Eddie’s death.
4. At Eddie's death, his distributable net estate (what is left after taxes, expenses, and creditors) will be divided under his will:
- South Dakota Answer: C.
- in nine equal shares going to Kate, Rob, Pete, and Mark's six children; however, it could be proved that his intent was that Kate’s children take her share.
5. Assume that Eddie's neighbor, who witnessed the will, dies before Eddie. As a result, Eddie's will likely will be declared invalid after Eddie passes on.
- South Dakota Answer: False
- The will could still be admitted to probate even though Eddie was dead. If the will was challenged, Kate could testify as to Eddie's intent that the document be his last will and testament and regarding who witnessed the will. Because the will was not 'self-proving,' probate may be more complicated.
6. Eddie's will could be admitted to probate, in spite of his neighbor's death, if:
- South Dakota Answer: D. (B and C)
- B. it had been self-proved (witnesses signed a brief statement that was then notarized), and
- C. the other witness, Kate, could provide an affidavit that she had witnessed the will
7. If Eddie's will is not declared valid during the probate process, his distributable net estate will be divided according to state intestacy statutes:
- South Dakota Answer: A.
- in four equal shares, with Mark’s share going to his six children.
8. Assume that Kate, his oldest child, also dies before Eddie. If Eddie's will is not admitted to probate, his distributable net estate will be divided:
- South Dakota Answer: D.
- in four equal shares, with the shares of Kate and Mark going to their respective children, pursuant to the intestate provisions.
9. Eddie would have been better off without his do-it-yourself will.
- South Dakota Answer: True
- Often do-it-yourself wills do not fit a family’s specific situation.
10. Eddie attends an estate planning course at his local Cooperative Extension Center, and he learns of the problems his do-it-yourself will may cause. He can revoke his will by:
- South Dakota Answer: D. All of the above (A, B, and C)
- A. signing a new will
- B. destroying his will with the intent to revoke it
- C. marking extensively through the will and writing corrections in the margin
Return to Prepare Your Estate Plan Case Study 3.
View the Prepare Your Estate Plan learning lesson.
Credits
Adapted for use in the Legally Secure Your Financial Future: Organize, Communicate, Prepare program.
Content Development
Reviewed and adapted for use by South Dakota audiences by:
Anne Marie Feiock, JD,
Young Lawyers Section President, South Dakota Bar Association.
This information is provided as a public service and is designed to acquaint you with certain legal issues and concerns. It is not intended to be a substitute for legal advice, nor does it tell you everything you may need to know about this subject. Future changes in the law cannot be predicted, and statements in these materials are based solely on the laws in force on the date of release noted on this page.
This document is for non-profit educational purposes only. This document may not be used by a profit-making company or organization. When used by a non-profit organization, appropriate credit must be given to the Cooperative Extension Legally Secure Your Financial Future: Organize, Communicate, Prepare education program. Materials for this program were developed by a team from six land-grant universities. The program is included in the program toolkit of the Cooperative Extension Financial Security in Later Life national initiative. For more information go to: http://www.csrees.usda.gov/fsll.