A life estate is an interest in property for the life of an individual—called a life tenant—that passes to someone else at the death of the life tenant.  The person who receives the property after the death of the life tenant is called a remainderman.  In a recent case, a Tennessee court had to interpret a will that left a life estate to a life tenant with a remainder to her “bodily heirs.”

Robert Stone’s will left a life estate to his daughter Nellie, with the remainder to go in equal shares to Nellie’s “bodily heirs.”   Nellie had three children, but two of those children died before Nellie did. One of the deceased children was survived by four children (Nellie’s grandchildren).  The question before the court was whether Nellie’s grandchildren could be considered Nellie’s “bodily heirs.”

“Bodily heirs” (sometimes called “heirs of the body”) is antiquated language for lineal descendants.  The term is intended to distinguish between a person’s natural descendants and the person’s other heirs, such as a spouse or friend.  Like most states, the Tennessee court defined “bodily heirs” to mean lineal descendants of a specific person who would inherit the property through intestate succession. “Bodily heirs” does not necessarily mean “children.”  The term includes generations, extending down to grandchildren, great grandchildren, etc.

The court held that biological grandchildren qualify as lineal descendants of their grandparents. If Nellie’s four grandchildren were her biological grandchildren (as opposed to adopted grandchildren), then they will be able to inherit the property under the terms of the will. There was some question as to which of the four were actually biologically related to Nellie or were adopted or stepchildren of Nellie’s son. The appellate court remanded the case to determine which ones were biological grandchildren of Nellie so that those individuals could inherit their portion of the estate.

Here is a lesson in the importance of clear drafting.  If Mr. Stone’s will had included clear definitions of the class of beneficiaries he intended to benefit (instead of relying on arcane language like “bodily heirs”), this confusion could have been avoided. If the will isn’t clear enough, then the courts are called on to interpret the language of the will in accordance with binding precedent.

Chambers v. Devore, No. W2008-02548-COA-R3-CV, 2009 WL 3739443 (Tenn. Ct. App. Nov. 9, 2009).

Wills are often referred to as ambulatory documents, meaning that it can usually be changed or revoked at any time before death.  But what does it take to revoke a will?  Sometimes an individual will simply mark through a provision or attempt to modify the will with a few handwritten notes. Will that work?

A recent Ohio case addressed whether or not markings on a will were effective to revoke a will.  The case of Horst v. Horst arose out of a dispute between two siblings, Patricia and William Horst, over the Last Will and Testament of their mother, Mary Horst.

Before Mary’s death, she had marked up one copy of the will but left another copy unaltered.  The markings included drawing an “X” over about 10 lines of a page, then attempting to mark out the “X.”  She also blacked out the words “the amount of Five Hundred Dollars ($500.00)” in one section. At the top of the page she wrote “This Will is correct.”  The will contained multiple signatures by Mary placed between and around typewritten lines in the will. The second page marked out area around the final signature on the will.

Patricia argued that all of these markings show that Mary had revoked her will and that it was no longer valid.  Like most states, Ohio has a statute that defines the ways in which a will can be revoked.  The statute allows revocation in the following ways:

1. When the testator tears, cancels, obliterates, or destroys the will with the intention of revoking it;
2. When, at the request of the testator and in the testator’s presence, another person tears, cancels, obliterates, or destroys the will with the intention of revoking it;
3. When a person tears, cancels, obliterates, or destroys the will at the express written direction of the testator;
4. By way of another written will or codicil that is properly executed according to statute; or
5. By another writing that is signed, attested to and subscribed pursuant to statute.

The Court found that Mary’s markings on her will did not qualify as a revocation of her will under the statute. Mary only put an “X” on portions of the first page of the will and crossed out some language in the margins, but she did not destroy, obliterate, tear, or cancel the entire document. Most of the document remained visible, including her signature and the date. She also left another copy of the will completely intact, without any markings at all. Moreover, the fact that Mary wrote at the top of the will “This Will is correct” further evidenced her intent that this document remain as her valid will to be probated upon her death. If anything, the markings showed that Mary intended to make some changes to a few of the provisions in the will. As such, the court upheld the validity of Mary’s will, to be probated as written.

One good lesson the Horst case teaches is that the best way to keep a testator’s intentions clear is to always consult with a probate attorney when seeking to draft, amend, revise, or even revoke a testamentary document such as a will. This avoids confusion as to the testator’s wishes and could save a lot of money in court disputes arising over the validity of will.

Horst v. Horst, No. 22993, 2009 WL 3068261 (Ohio Ct. App. Sept. 25, 2009)