Plain Meaning, Legal Meaning, and DIY Estate Planning

In earlier publications, CCK has discussed charity-sponsored estate planning websites. Our view of these fundraising tools was and remains quite positive. We have offered risk mitigation suggestions for charities and reported on empirical studies of the solid performance of DIY wills. Significant litigation involving these services is rare.

DIY wills utilize considerable boilerplate language. That boilerplate might mean something different in Nebraska than it means in California. What happens when a certain state law gives a surprising meaning to a term in common usage and the “legal” meaning tanks the whole estate plan? A recent Michigan Supreme Court case addresses this issue and suggests that it may have special significance for DIY wills.

The case is In Re Joseph & Sally Grablick Trust, 512 Mich. 890 (2023). Joseph left a bequest to “my stepdaughter Katelyn.”  Nothing could be clearer, except that an obscure Michigan statute (unknown to Joseph and perhaps his estate planner) contained an arcane definition of “stepdaughter” that excluded Katelyn and invalidated Joseph’s gift to her. While she may have a remedy if the estate planner was negligent, her stepfather wanted to give her a bequest and not a cause of action.

In Grablick, Justice Welch observed that problems arising from the divergence of ordinary language and legalese “is perilous in an era of online do-it-yourself wills . . . where parties may not have legal representatives . . .” DIY sites are not set up to parse the intricacies of statutory language that applies in only a small number of cases. Unfortunately, the problematic “legal meaning” of a will usually only becomes obvious at probate.

If a Grablick-type problem arises from a charity-sponsored website, the organization could certainly see a negligent referral claim or some similar cause of action from a disappointed beneficiary. Luckily, there are defense measures available to charities. Chief among them are: (1) prominent disclaimers about any role in developing or updating the website; (2) negotiation of a broad indemnification from the owner of the website; (3) insistence that the website itself inform users of the limitations of the service (the reputable ones already do this); and (4) careful attention to the insurance coverage of both the charity and the service provider.

This article was originally published on October 17, 2024. To stay updated on all things Bequest Management, you can check out our LinkedIn.