Be Wary of Unintended Consequences Preparing Wills and Other Estate Planning Documents

Fairfax, VA (Law Firm Newswire) August 10, 2016 – The opinion in the case of Thorsen, et al vs. Richmond Society for the Prevention of Cruelty to Animals (RSPCA) instructs lawyers and clients to be cautious regarding the drafting of Wills and other estate planning documents.

The subject of the case is a Will that was prepared in 2003 for Alice L. Cralle Dumville, who wished to make certain that her husband from whom she was alienated, did not benefit from her estate if she died while her divorce was pending.

Ms. Dumville requested that a lawyer, James B. Thorsen, draft a Will bequeathing her property to her mother, and in the event her mother died before she did, to the RSPCA. Her mother did, in fact, predecease her, for she died in 2007 and Ms. Dumville died in 2008. The RSPCA was informed that they benefitted from the testator’s estate. However, a complication was uncovered in the Will. While the Will bequeathed only the testator’s tangible personal assets to the RSPCA, it did not provide for her real property, which would go to the testator’s two intestate heirs.

Prominent Vienna, Virginia estate planning attorney Lisa McDevitt states, “Estate planning attorneys and clients must thoroughly read and comprehend their Wills and other estate planning documents so as to avoid omitting significant assets, thereby causing unnecessary delays and subsequent legal action.”
In order to remedy the ‘scrivener’s error,’ Mr. Thorsen filed a lawsuit. The Circuit Court held that the wording was unmistakable in that the RSPCA was to inherit only the tangible personal assets. The rest of the testator’s property was to go to her intestate heirs. The RSPCA filed a lawsuit against Mr. Thorsen, alleging breach of contract and professional negligence, claiming that it was a third-party beneficiary of the contract between the lawyer and the testator. The Circuit Court concurred with the RSPCA.

Mr. Thorsen filed an appeal with the Virginia Supreme Court, which affirmed the ruling by the Circuit Court. The court held that a third-party beneficiary who is the desired beneficiary of a contract may file suit to enforce the contract even in cases where the individual or entity is unaware that it is a beneficiary for several years.

This case suggests that estate planning attorneys and clients should carefully read their documents and make certain that they comply with the wishes of the testator. Failing to do so could result in the inheritance of assets by unintended beneficiaries.

In Virginia, when an individual dies without a Will, assets pass to intestate heirs, and not to the state. But even with a Will, it is important to ensure that provisions are made for all of the testator’s assets. Otherwise, those assets that are excluded pass to the intestate heirs, and this may not be in accordance with the testator’s wishes.

Lisa Lane McDevitt
2155 Bonaventure Drive
Vienna, VA 22181
Phone: 571-271-1446
http://www.mcdevittlaw.net/

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