One Word Could Make All the Difference!

The versatility of the English language can be detrimental to the intent of one’s estate planning documents. As we know, the goal of estate planning is to memorialize ones last wishes in a clear and concise manner, in order to preserve or protect assets for the future.  Sloppy or inaccurate drafting can lead to later controversy.  I liken this controversy to the famous line from Fred Astaire, “potato, potato, tomato, tomato.”  While any distinction between these words in this context is seen as irrelevant, the same cannot be true for like words in the context of estate planning.  Such difference is open to interpretation absent explanation from the stating party.  Therein lies the problem!

Estate documents often rear their head at the death of the party drafting them. Thus, the words left behind exist only subject to the perception of those left to interpret them.  The Supreme Court of the United States has maintained that when a will is clear and unambiguous, the intent of the drafter will be honored so long as that intent is legal and not contrary to public policy.  (see Hood v. Todd, 287 Ga. 164, 166).  In Hood v. Todd, John E. Buffington passed away with a will that left the bulk of his estate to his children.  As the case reads, “The term ‘children’ is specifically defined in the will, in pertinent part, as ‘only the lawful blood descendants in the first degree of the parent designated.’”  (Hood v. Todd, 287 Ga. 164, 165).  The will defined two living children by name.  The case arose because a third child, alleged from a separate relationship, claimed to be entitled to a portion of the estate left for Mr. Buffington’s children.  While the term "children" in general terms may encompass “all” children born to Mr. Buffington, here, a different meaning has been assigned.  Mr. Buffington clearly defined "children" as only those two specifically named in his will. His intent was clear and unambiguous that any disposition of property to his "children" was to be only those defined by him in his will.

The issue in Hood v. Todd encompasses the importance of careful drafting.  Had Mr. Buffington failed to specifically name his two children, the determination of his children would have been open to court interpretation.  The third child, upon proof of such relation, would likely have been able to obtain a share of the estate despite intent by Mr. Buffington.  Every detail, including punctuation and spelling, can matter when constructing an estate plan.  The smallest mistake can lead to lengthy litigation over the true meaning of the drafter’s intent.

- Adam Abramowitz, J.D. and Gary Altman, Esq.

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