Wills, Trusts & Estates Prof Blog

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

Friday, February 16, 2007

Analysis of Anna Nicole Smith's Will

Smith_willBelow are my comments regarding the Will of Vickie Lynn Marshall, aka Anna Nicole Smith.  Note that the comments are general in nature and reflect my opinion.  Also note that it will be significant which state's law is eventually deemed to govern.

  • Anna executed her will on July 30, 2001 in Los Angeles, California.
  • Eric James Lund prepared Anna's will.
  • In Article I, Anna states that she has "intentionally omitted to provide for my spouse and other heirs, including future spouses and children and other descendants now living or those hereafter born or adopted" except for Daniel.  Anna repeats this request in Article 6.2 when she states, "I have intentionally omitted to provide for any of my heirs."
  • The possible ramifications of these provisions include:
    • Dannielynn will not be entitled to a share of Anna's estate as a pretermitted child because the will express excludes afterborn children.
    • Dannielynn might be precluded from taking by intestate succession because of exclusionary language regarding heirs.  In some states, a testatrix may write a "negative will" indicating an intent to disinherit an heir without making a successful property distribution to another beneficiary.  If her will is governed by such a law, the question will be raised whether this language is sufficient to prove her intent to completely sidestep intestacy.
    • If all heirs are disinherited, Anna's estate may escheat to the government of the state in which she domiciled at the time of death!  Accordingly, I predict that various governments may enter the fray.
  • Anna left her entire estate in trust for Daniel with Howard Stern as the trustee.  In my opinion, the trust is established solely for Daniel and not for any other child.  However, the plural term "children" is used in the provision making it ambiguous.  However, by reading the provision as a whole, it appears clear that Daniel is the sole beneficiary.
  • Anna's will does not provide for the lapse of Daniel's gift.  Thus, because Daniel predeceased Anna, Anna's will does not dispose of her estate.  I would probably fail a student in my Estate Planning class if he or she made this type of omission.
  • Howard Stern is the executor of her will.  Ron Rale is the first alternate executor, not a co-executor.
  • The will contains many provisions which would not be applicable to Anna's estate and thus it is a puzzle why they were included.  For example, Article 4.1 discusses the marital deduction but Anna was unmarried at the time she executed her will and expressly omitted any future spouse.
  • The will inconsistently uses the term "child" and "children" when referring to Daniel.  As mentioned before, reading the will as a whole leads to the conclusion that all references should be in the singular.

Special thanks to Brett Cramer (May 2008 J.D. Candidate, Texas Tech University School of Law) for being the first person to send me a copy of Anna's will.  And, to everyone else who sent me a copy, I really appreciate your thoughtfulness.


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If a person named as recipient of an estate dies, without any further stipulation, wouldn't that person's heirs get the distribution.
In other words, couldn't the baby Dannielynn get the estate as Daniel's only next of kin - his sister?

Posted by: JustWonderin' | Feb 17, 2007 8:53:21 AM

Why wouldn't the estate go to the estate of the predeceased heir? If it does, wouldn't there be a clamor from Daniel's heirs, whoever they are? I am assuming that Daniel died intestate, but Howard Hughes will surfaced at some point, so who knows?


Posted by: joe5348 | Feb 17, 2007 2:08:56 PM

I'm a retired lawyer. Specialized in things other than estate planning (I was an appellate lawyer) - but I learned enough about estate planning to write a couple of simple wills myself - and - more importantly - to read (and edit!) the complicated ones that some lawyers have drawn up for me and my husband. It is unbelievable how many lawyers cannot write in plain simple understandable English. And how they put in tons of pages of "boilerplate" while ignoring the "nuts and bolts" (who gets what if A, B or C happens).

Anyway - I'm enjoying reading your analysis. And I agree that the resolution of the conflict of laws issue will be very interesting. Robyn

Posted by: Robyn | Feb 17, 2007 4:42:06 PM

If the negative will language is inoperative, why wouldn't it go into intestacy and then to her parents? (although one has to believe that a court will strain to create a constructive trust or something to get the estate to the daughter)

Posted by: jpe | Feb 17, 2007 5:21:15 PM

In other words, couldn't the baby Dannielynn get the estate as Daniel's only next of kin - his sister?

When a beneficiary dies, the gift lapses and goes back to the residuary. I'm not sure about CA law, but in many jurisdictions the only exception to that is if the gift was to a kid (or sibling, at least in NY) and that kid has a kid of his/her own.

Testamentary gifts, IIRC, don't go to estates; they have to go to people.

In my above comment, I meant to say that if the language of disinheritance is effective, the estate should pass to ANS's parents through intestacy (assuming there wasn't a marriage on the sly)

Posted by: jpe | Feb 18, 2007 9:42:00 AM

Seems to me that the plural and singular is addressed rather clearly in paragraph 4.3.1.

It's hard to comprehend, given the repeated references in the will to a "trust," that at the time of or after the will was executed, that these lawyers failed to draw up a living trust that addressed all these issues; this is especially so after her son's death, and crtically so after she attempted suicide twice in December. Given the terms of the will, excluding the entire world as legatees besdies her son, one might consider that Judd, Rale and Stern might have asked to review the will if it were the sole document. Think about it, Howard Stern is this so-called gold digger and svengali, but not smart enough to have the will changed after the son'e death, and after two suicide attempts?

Posted by: Marty | Feb 19, 2007 4:34:27 PM

The provisions of the will stating that the failure to provide for heirs was intentional are made necessary by California Probate Code Secs. 21620 and 21621 in order for the bequest of the entire estate to Daniel to remain effective in the event of the birth of another child. In the absence of such provisions, Dannielynn, or any other children born after the execution of the will, would be entitled to a share equal to Daniel's under Sec. 21620. Since the provisions are necessary solely for the purpose of securing the bequest to Daniel, there is no reason to assume they were included for any other reason, in other words, no reason to assume any intent to disinherit Dannielynn if, as in fact occurred, Daniel predeceases Anna Nicole.

Posted by: David | Feb 19, 2007 9:01:47 PM

I don't see how the provision to give the whole estate to Daniel isn't coextensive with an intent to disinherit. The intent to give the whole caboodle to Daniel is the same thing as the intent to disinherit other children, no?

Posted by: jpe | Feb 20, 2007 7:20:07 PM

Yes, if Daniel were alive. But saying, "Everything goes to Daniel; nothing to any as yet unborn child" is not the equivalent of saying, "Everything goes to Daniel, and even if that turns out to be impossible, at all events nothing should go to any as yet unborn child." In other words, the will's provisions are fully explained by the assumption that Daniel was intended to take in preference to any unborn child. There is neither any need nor any justification for the further assumption that the possiblity of the estate going to an unborn child was to be excluded no matter what. The will totally fails to provide for the eventuality of Daniel predeceasing Anna Nicole. To construe its silence on that issue as evidence of an intent to exclude Dannielynn under such circumstances would contravene the policy behind Probate Code Secs. 21620 and 21621, which is to protect the interest of pretermitted heirs in the absence of an unambiguously expressed intent to disinherit them. I would suggest that, in order to qualify as expressing an unambiguous intent to disinherit a sole heir, a will must, at the very least, make an alternative disposition of the estate.

Posted by: David | Mar 17, 2007 8:08:30 PM

In my opinion, Anna Nicole had a hack lawyer. He didn't seem to know how to write a will. She would have been better served by going to the local Office Depot and buying a standard form. It is very weird that her lawyer put in a clause that excluded any unborn children. It is crazy for a lawyer to not take into account that the one heir mentioned might predecease her without any provisions as to what happens then. In an estate as large as hers, Lund should have spent a little time into the details. To be charitable, I would assume that Lund did the will pro bono. Certainly, there are going to be lawyers who are going to make a lot of money pointing out how poorly this will was drafted. And I assume Mr. Lund is going to make a lot of money trying to defend his work. In effect, he had Anna Nicole die intestate with no heirs, thus the estate should go to the state.

Posted by: Ken | Jun 20, 2007 7:11:06 AM

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