Many proponents of open AI applications claim that lawyers are becoming obsolete due to the ability of computers to generate legal documents in a fraction of the time and cost, but the Nebraska Court of Appeal’s recent opinion in In re Carrier makes it clear that drafting documents is only one aspect of estate planning during divorce litigation. Having an attorney to guide you through the legality of your plan, and to ensure it’s executed properly, is necessary to ensure your estate is handled the way you intended once you pass away.
In In re Carrier, Decedent died married and without children. A divorce proceeding had been initiated but was not completed at the time of his death. Decedent’s Wife was not aware that Decedent ever executed a Will and attempted to probate his estate under the laws of intestacy (dying without a Will). Under Nebraska law, even though a divorce was initiated, Wife had first priority to serve as Personal Representative of the Decedent’s estate because the divorce was not finalized. Unbeknownst to Wife, Decedent prepared a purported Last Will and Testament six months prior to his death allocating all his assets to his Sister. The Will also appointed Sister as Personal Representative of his estate.
Sister subsequently submitted the purported Will for probate, claiming that it was validly executed. The Will was signed by the Decedent and a single witness, who also served as the notary. At the same time, Decedent executed a Durable Power of Attorney, which he attached to the Will. The Durable Power of Attorney was signed by an additional witness and the notary. Sister argued that even though the Will was only signed by one witness, the Durable Power of Attorney it was attached to contained two witness signatures and was signed simultaneously, therefore meeting the requirements for a Will to be valid. The Court disagreed.
Who Needs to Sign a Will in Nebraska
Under the Nebraska Probate Code, nearly all Wills must be signed by three people: the person creating the Will (the “testator”) and two witnesses who physically saw the testator sign the Will. If there is any claim that the Will was executed by mistake, under undue influence, or fraud, one of the witnesses may be called to testify as to the validity of the Will. The only exception to this rule is when a testator creates a “holographic Will,” which is a Will written entirely in the testator’s handwriting (i.e., it is not typed or dictated).
The Court opined that signatures from two witnesses on the Will are mandatory. If the Nebraska Probate Code is not substantially complied with, a Will is rendered inoperative. Because the Will contained one witness signature, it failed to meet the requirements of the Nebraska Probate Code and could not be admitted to probate. It did not matter that it was attached to a Durable Power of Attorney, because the Durable Power of Attorney loses all effect once Decedent died. It is not a testamentary document, while a Will is. They are entirely separate and cannot be read together in order to comply with the Nebraska Probate Code.
The result was that the Will was rendered inoperative. Even though there was evidence of Decedent’s testamentary intent, it could not be considered by the court because his estate needed to be probated under the laws of intestacy. Because he was still married at the time of his death, Wife received the entirety of his remaining property.
If Decedent had an attorney draft the Will, the attorney would have advised him to have two witnesses at the signing. Additionally, an experienced estate planning attorney would know to prepare a Self-Proving Affidavit to attach to the Will. A Self-Proving Affidavit adds another layer of protection to a Will by creating a presumption that a Will validly met all execution requirements under the Nebraska Probate Code. The Self-Proving Affidavit is therefore a powerful tool to help protect against probate litigation.
The Risk of Temporary Orders in Divorce Litigation
People going through divorces will often update their estate plans during the litigation to avoid the result of In re Carrier. However, an attorney should be utilized to ensure that the estate plan is not only properly drafted and executed, but also complies with any temporary orders that may have been issued in the divorce litigation. Although it was not addressed by the court in its opinion, Wife claimed in her pleadings that the Will violated existing temporary orders. Temporary orders to protect assets in divorce litigation are extremely common. Here, the temporary orders prohibited the distribution of and access to marital assets by anyone other than Decedent and Wife during the pendency of the divorce. Wife argued that even if the court found the Will was validly executed, admitting it to probate would violate the temporary orders because it would distribute assets subject to the court’s orders to Sister. Thus, the Will would have been void as a matter of law.
An attorney would have been able to review the temporary orders and draft an estate plan that works within the context of the court’s orders. For example, contingent bequests could be drafted to allow the Will to comply with pending orders that may be present at the time of the testator’s death, but lapse if such orders are no longer in effect.
At Goosmann Law Firm, our estate planning and family law attorneys are committed to helping clients navigate important life changes. We offer estate planning services that take into account each client’s unique circumstances and goals. If you are going through a divorce and need to revisit your estate plan, our team is available to assist you.