Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Sunday, June 8, 2014

Lack of Residuary Clause Causes Property Not Disposed of by Will to Pass by Intestacy

WillAnn Aldrich drafted her will on a pre-printed form making only specific bequests of realty, financial assets, and an automobile to her sister and, if her sister did not survive, to her brother.  Her sister predeceased leaving Aldrich real property and cash which she deposited in an investment account.  Aldrich died without ever changing her will to make a disposition of the property received from her sister.  A construction proceeding took place to determine the disposition of the property not mentioned in the will.  The trial court entered summary judgment for the personal representative whose position was that the will disposed of the after-acquired property.  The intermediate appellate court reversed.

In Aldrich v. Basile, the Florida Supreme Court affirmed, holding that the intention of the testator as expressed in the will controls the legal effect of the gifts in the will and does not allow the court to reform the will to create a residuary clause where none exists.  Accordingly, the property not covered by the will passes by intestacy.

Special thanks to William LaPiana (Professor of Law, New York Law School) for bringing this case to my attention.




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