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Florida addresses the question what happens if there is no residuary clause in the Will

Ann Aldrich drafted her own will on an “E-Z Legal Form.”  In Article III, entitled “Bequests,” just after the form’s pre-printed language “direct[ing] that after payment of all my just debts, my property be bequeathed in the manner following,” she hand wrote instructions directing that all of the following “possessions listed” go to her sister, Mary Jane Eaton.  If Mary Jane were to predecease her, the possessions were to be distributed to her brother, James Aldrich.  Ann listed all her assets she owned individually on the will.  The will contained no other distributive clauses. 

Three years later, Ms. Eaton did die before Ann, becoming her benefactor instead of her beneficiary. Ms. Eaton left cash and land in Putnam County to Ms. Aldrich, who deposited the cash she inherited from Ms. Eaton in an account she opened for the purpose with Fidelity Investments. On October 9, 2009, Ann Dunn Aldrich herself passed away, never having revised her will to dispose of the inheritance she had received from her sister.

James Aldrich took the position that the most reasonable and appropriate construction of the will was that Ann intended her entire estate, including what she had inherited from her sister, to pass to him, citing (1) “[t]he will itself, which names only decedent’s predeceased sister, Ms. Eaton, and [Mr. Aldrich] as beneficiaries, and which devised all of the property then owned by decedent”; (2) “[s]ection 732.6005(2), [Florida Statutes], which provides that a will is to be construed to pass all property that a testator owns at death, including property acquired after the execution of the will”; and (3) “[t]he legal presumption that in making a will a testator intended to dispose of his or her entire estate, as well as the legal presumption against a construction that results in partial intestacy.”
The petition did concede the possibility of another construction of the will, suggesting as an alternative that “by her will decedent intended to dispose of only the property specifically listed in the will, and not property that she may subsequently have acquired.” Under the latter scenario, the petition recognized, the trial court would be required “to treat decedent as having died intestate as to the after-acquired property,” and alleged that, in that event, the after-acquired property would pass one-half to Mr. Aldrich, one-quarter to Ms. Basile, and one-quarter to Ms. Krajewski.  All agree that Mr. Aldrich was entitled to the property actually listed in the will.

The nieces, Ms. Basile and Ms. Krajewski, argued that, without any general devises and in the absence of a residuary clause, Ann’s will contained no mechanism to dispose of the after-acquired property or any other property not mentioned in the will, so that she had died intestate as to the Putnam County property and the cash in the non-IRA Fidelity Investments account.

The court held that the will failed to provide any distribution for the property acquired after the execution of the will.  Therefore, the after acquired assets are to pass under the laws of intestacy.

In re: Alrich

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The estate planning attorneys at the Beliveau Law Group provides legal services for estate and asset protection planning. The law firm has offices and attorneys in Naples, Florida; Boca Raton, Florida; Danvers, Massachusetts; Waltham, Massachusetts; Quincy, Massachusetts; Manchester, New Hampshire and Salem, New Hampshire.

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