Making the necessary decisions required to have your estate plan drafted can be taxing. We meet with hundreds of clients every year that have put off getting their wills done because it can be emotional to think about our deaths, difficult to decide who gets what, and who do we designate to make financial and medical decisions if we are unable to. Once the appointment is made, we make the process as painless as possible. Brad carefully and calmly leads clients through the process, assists with difficult decisions and drafts the documents that will work for your heirs.

But, what happens when a year later you want to change something? Unfortunately, many people do what Esther Sullivan did in the case cited below. And then you have a problem. If you want to make some changes, call your estate attorney, have a brief meeting and have your will properly amended or updated. Or, better yet, do a will and trust check up every two years or so. It's an easy process and it will work!

Esther Sullivan executed her will in January 2006. The will was properly notarized and had the required two witnesses. Esther divided her estate between her grandson, Joseph, and a former employee, Tara Jean. The nature of Tara Jean's employment was not disclosed by the court, but she was named as personal representative of the estate. She would be responsible for filing the tax and probate forms, and distributing the assets.

By 2008 Esther had a change of heart. On a photocopy of the original will, she wrote across the top "[t]he Will dated January 19, 2006 is void and to be replace[d] with this and all written changes." A variety of alterations were penciled in, the most consequential of which was naming Joseph the personal representative instead of Tara Jean.

Not yet completely satisfied with her handiwork in October 2010 Esther downloaded a will from an internet site and completed it by hand. This time in addition to naming Joseph as personal representative, she named him the sole heir of all of her property, "after her debts are payed (sic)." Interestingly, Tara Jean witnessed Esther's signature on the 2010 will.

After Esther died, Tara Jean offered the 2006 will for probate. Joseph objected, and he submitted the 2008 and 2010 alternatives as being more consistent with Esther's final wishes.

Both the lower court and then the appellate court held that the statutes governing wills must be strictly adhered to. The same formalities that apply to creating a will apply equally to its revocation. Neither the 2008 or 2010 will was executed with witnesses to Esther's signature, so they failed the test. Alternatively, the appellate court held, a will may be revoked by a "revocatory act on the will," including "burning, tearing, canceling, obliterating, or destroying the will or any part of it." Such an act must be done to the original will, not to a photocopy of it.

Without the required witnesses, the 2008 and 2010 documents amounted to nothing more than notes for making a future will.

During the appeal, Joseph argued that Tara Jean had breached her fiduciary duty to the estate by offering the 2006 will for probate when she herself was a witness to the 2010 attempted revocation. Unfortunately, the Court held he brought that argument up too late to be considered.

In re Estate of Sullivan, 868 N.W.2d 750 (Minn. Ct. App. 2015)