Drafting documents can be difficult but if you draft what you mean and mean what you draft, drafting can become easier. Ambiguity is the bane of every estate planner. Once someone has become incapacitated or deceased, the documents should clearly reflect the incapacitated person’s or the decedent’s intent. A recent case illustrates an ambiguity and how the insertion of just a few words could have saved hundreds in legal fees and expenses.
In Wells v. Wells, Rose Wells (“Rose”) the surviving spouse of John Wells (“John”) tried to enforce a judgement between John and his former wife, Sandra Wells (“Sandra”). John and Sandra divorced in 2001 and the settlement agreement (“Settlement”) provided that Sandra “shall have exclusive use and possession of the home through the daughters’ minority and college years…”. The Settlement also stated that upon the “sale of the home” by Sandra, John was to receive 50% of the sales proceeds. The issue was that the Settlement did not state WHEN the sale was to occur.
At John’s death, Rose sought to enforce the Settlement as John and Sandra’s daughter had finished college. Rose argued that Sandra was required to sell the property and distribute to John’s estate 50% of the proceeds. Sandra argued that the Settlement did not require her to sell the property and that, in any case, the Settlement was not enforceable because John had previously breached the Settlement by not complying with the terms since 2007 and/or the parties had abandoned the Settlement.
The lower court found that IF Sandra sold the house, then John was entitled to 50% but the Settlement did not require Sandra to sell the property. Rose appealed and argued that the lower court’s decision ignored the intent of the parties and, ultimately granted a life estate to Sandra, which was not intended.
The appellate court agreed with Rose and analyzed case law to reach the conclusion that “the provision is reasonably read to require the sale of the property after the daughter has completed college” and should not be read as giving the former wife the right to live in the property indefinitely. If a life estate was intended, then why the inclusion of language limiting possession to the college years of the daughter. The appellate court, however, remanded the case to the lower court to determine whether a breach or abandonment of the Settlement had occurred.
ADVICE: Hindsight is always 20/20 so it is easy to criticize the drafter when you clearly see the issue after the death. This author, however finds it easy to draft something that you really believe states what you mean but when someone else proofs it, the meaning is something different. Thus, great drafting requires careful proofing and obtaining another’s opinion on the wording of documents to make sure it states what you think it states. Careful drafting is a skill not all lawyers have and it is imperative, if you do not have that skill, to have documents reviewed by those with such skill. Further, more words does NOT necessarily make the intent clear. While it is necessary to use certain boiler plate language in documents, drafters need to be be very specific in the dispositions and the rights of beneficiaries. As this case illustrates, if you are a family lawyer drafting agreements, then be sure that the document clearly reflects what happens upon death of the parties to the agreement.