Cody v. Cody, — So.3d —-, 2013 WL 6171299 (Fla. 1st DCA November 26, 2013)

According to the 1st DCA, “the will’s lack of restrictions on Buford Cody’s discretion to share the property with his brothers gave him the authority to divide it in any way he saw ‘fit,’ including no division at all.”

The wills at the center of this case were ticking time bombs from the moment Mr. and Mrs. Martin signed them in 2007. Mrs. Martin died later that same year. Mr. Martin died in 2010. When both parents passed away, their wills devised their home and surrounding 12.5 acres in Pace, Florida (a small town in Florida’s Panhandle) to one of their three sons, Buford Cody, to divide among their heirs “as he sees fit and proper.” Here’s how the two key clauses of the will at issue in this case were drafted:

I devise the house and 12.5 acres located at 2800 Myree Lane, Pace, FL 32571, to . . . my son, Buford Cody, to divide between my heirs, as he sees fit and proper. . . . All the residue of my estate . . . shall be divided among my heirs, as [Buford Cody] see[s] fit.

What?! Not surprisingly, when mom and dad passed away Buford’s brothers didn’t waste any time filing a lawsuit asking the court to construe dad’s will in a way that effectively re-wrote it by dividing the estate “into roughly three equal shares” for the couple’s three sons. Mistake number one: the challengers filed their will-construction suit before the will was even admitted to probate. This kind of procedural sloppiness is easy to deal with if your judge doesn’t go along with it. Unfortunately, that wasn’t the case in this estate.

The Order Construing Will must be reversed for several reasons. First, the probate court’s order construing will is premature because the record does not contain an order admitting the will to probate or appointing Buford Cody the PR under the provisions of the will. “A will may not be construed until it has been admitted to probate.” § 733.213, Fla. Stat. While Mr. Martin’s will is self-proving, pursuant to section 732.503, Florida Statutes, and is thus admissible to probate without further proof pursuant to section [733.201], the probate court has not actually admitted the will to probate.

The power of social convention:

What’s most interesting about this case isn’t that they got the procedure wrong, it’s what it tells us about how estate planners need to anticipate the power of social convention when drafting wills, and how these conventions can undermine any estate plan that falls outside of the traditional “all to spouse, then to my children in equal shares” box. We usually speak of this problem in terms of litigation “red flags.” But what do we really mean by that phrase? In my opinion it’s any estate plan that falls outside of the social conventions typical to your local community.

If my will gives everything to one of my three sons to divide among my heirs as he sees fit, can he keep it all for himself? YES

According to the 1st DCA, “the will’s lack of restrictions on Buford Cody’s discretion to share the property with his brothers gave him the authority to divide it in any way he saw ‘fit,’ including no division at all.” In other words, 2 of the Martins’ 3 sons were effectively disinherited (which is contrary to the social norm followed by most parents). Ergo: litigation red flag! So what happened? The trial court basically ignored the clear text of the will and entered an order “construing” it in a way that divided the estate in equal shares among the three surviving sons. That result may have seemed “equitable” (as defined by the judge), but it certainly wasn’t what Mr. Martin’s will said. Bottom line, you can’t re-write someone else’s will to better suit your own subjective sense of fairness, so saith the 1st DCA:

Mr. Martin’s directive to the PR to divide both the real property described, and any residuary estate not specifically devised, “between my heirs, as he sees fit and proper” does not require the PR to equally divide the property. When a will devises estate property to a person, expressing the testator’s hope that the person “will honor all of [the testator’s] ‘requests,’ ” then “the unambiguous language of the [will] devises the entire residuary to [that person], who then has the discretion to honor [testator’s] requests.” Glenn v. Roberts, 95 So.3d 271, 273 (Fla. 3d DCA 2012). As stated in In re Estate of Barker, 448 So.2d 28, 31–32 (Fla. 1st DCA 1984):

The court may not alter or reconstruct a will according to its notion of what the testator would or should have done…. It is not the purpose of the court to make a will or to attempt to improve on one that the testator has made. Nor may the court produce a distribution that it may think equal or more equitable.

See also Owens v. Estate of Davis, 930 So.2d 873, 874 (Fla. 2d DCA 2006).

Here, Mr. Martin’s devise to Buford Cody vested Buford’s interest in the real property upon Mr. Martin’s death. § 732.514, Fla. Stat. The will’s lack of restrictions on Buford Cody’s discretion to share the property with his brothers gave him the authority to divide it in any way he saw “fit,” including no division at all. The fact that his brothers disagreed with his actions did not render the will ambiguous or invalidate any portion of the will. In addition, the will did not provide any requirement that the brothers agree on a distribution of the estate property. The will specifically provided Buford Cody with the power and authority to decide how the property would be divided. The probate court’s orders . . . determining a particular division of the real estate as the court saw fit usurped Buford Cody’s authority under the will without legal basis.

Lesson learned?

Chalking this case up to “judicial activism” would be a mistake. Anytime a client signs a will that deviates from the traditional “all to spouse, then to my children in equal shares” social convention, he or she needs to take extra precautions. Why? Because if the will gets challenged the single most important witness — the testator — is dead, so he obviously isn’t around to explain to an overworked and underfunded probate judge why “yes”, the will says exactly what he meant it to say.

Hindsight is 20-20, but based on the 1st DCA’s opinion, if the will at issue in this case had contained a few extra lines making clear the estate was to go exclusively to Buford Cody, making clear that any reference to a division among heirs was completely precatory, and also explaining the testator’s intent, the legal fees and family acrimony inherent to this kind of litigation might have been avoided. If you’re looking for a solid checklist of defensive estate planning techniques, look no further than Will Contests — Prediction and Prevention by Prof. Gerry Beyer of the Texas Tech University School of Law. Here’s what Prof. Beyer has to say about incorporating explanatory text into a defensive-planning strategy:

EXPLAIN REASONS FOR DISPOSITION

An explanation in the will of the reasons motivating particular dispositions may reduce will contests. For example, a parent could indicate that a larger portion of the estate is being left to a certain child because that child is mentally challenged, requires expensive medical care, supports many children, or is still in school. If the testator makes a large charitable donation, the reasons for benefiting that particular charity may be set forth along with an explanation that family members have sufficient assets of their own. The effectiveness of this technique is based on the assumption that disgruntled heirs are less likely to contest the will if they realize the reasons for receiving less than their fair (intestate) share.

It is possible, however, for this technique to backfire. The explanation may upset some heirs, especially if they disagree with the facts or reasons given, and thus spur them to contest the will. Likewise, the explanation may provide the heirs with material to bolster claims of lack of capacity or undue influence. For example, assume that the testator’s will states that one child is receiving a greater share of the estate because that child frequently visited the aging parent. Another child may use this statement as evidence that the visiting child unduly influenced the parent. If the explanation is factually incorrect, heirs may contest on grounds ranging from insane delusion to mistake or assert that the will was conditioned on the truth of the stated facts.

The language used to explain reasons for a disposition must be carefully drafted to avoid encouraging a will contest or creating testamentary libel. An alternative approach is to provide explanations in a separate document that could be produced in court if needed to defend a will contest, but which would not otherwise be made public.

Is this kind of protective drafting guaranteed to work? Heck no! Might it have worked? No one will ever know for sure. But this I do know: anytime a client signs a will that deviates from traditional social convention, he or she needs to take extra precautions. As explained in Prof. Beyer’s article, defensive, pre-suit estate planning involves all sorts of tools. One of those tools is defensive drafting designed to be so blindingly obvious that no one — not even an overworked/underpaid judge who thinks your will is morally reprehensible — will have any doubt it’s exactly what your client wanted. This kind of estate planning may cost a little more up front, but when compared to the cost of litigation, it’s a bargain.