WILL YOUR WILL BE CLEAR

A Will informs other people of your intentions regarding distribution of your assets upon death. A poorly drafted Will may not accomplish your goals because others may not understand your intent. This may lead other, especially disgruntled heirs (usually family members) to challenge your Will. A court may need to decide the case. Remember, in a court proceeding, other persons, not you, would be testifying about your intentions and their self-interest may not be the same as your interest.

Your intention is determined by the language used in your Will, your scheme of distribution and the surrounding fact and circumstances. A court cannot substitute its thinking to decide what you meant to say.

Also, your intention is determined as of the date you signed the Will. This is a reason why you need to periodically review your Will and make necessary changes when they occur. IF your intentions have changed since you signed the Will, but you do not change your Will, a court would look at your intentions as of the date you signed it and enforce it as written.

A properly drafted Will preserved the decedent’s intent in a recent February 2019 appeals court case. In re Estate of Tscherneff, 2019 PA Super 25, 886 MDA 2018.

Mr. Tscherneff signed his Will in May 1999. As a result of his wife’s death, his Will left his estate equally to his4 children. He also appointed his one son, Dimiter, as his agent under a power of attorney. During Mr. Tscherneff’s life, Dimiter used the power of attorney and transferred many assets to himself and his two sisters in recognition of the care they provided to their father. The case is not clear on this point but Peter, his other son, apparently did not provide care to his father and he did not receive any distribution from Dimiter.

Mr. Tscherneff died in 2016. His estate only had one remaining asset: a TD Ameritrade account valued at $143,238.01. Peter filed a request to remove Dimiter as executor claiming he mismanaged estate funds and inappropriately gave money to himself and his sisters during Mr. Tscherneff’s life. Peter argued his 25% share would have been worth more if not for the distributions Dimiter made during their father’s life. Peter’s share was 25% of $143,238.01 instead of 25% of a larger number, which is why Peter challenged Dimiter’s actions.

The Superior Court held Mr. Tscherneff’s Will was clear and his intent in May 1999 was to divide his estate equally among the four children. Mr. Tscherneff did not change his Will and he knew Dimiter made distributions during his life to himself and his sisters. Consequently, the Court held Dimiter’s distributions were not improper and they were not advances under Mr. Tscherneff’s Will. Each child would receive 25% of the TD Ameritrade account.

Peter lost his challenge, but more importantly, Mr. Tscherneff’s wishes were fulfilled. This case emphasizes the importance of writing Wills which can be understood by others and are clear in their meaning. If you have a Will or are thinking about creating one, you should ensure your goals are in a properly written Will. It may enable a court to uphold your Will and your desires.

Hoffmeyer & Semmelman LLC is a law office in York PA. Contact us today to schedule an appointment to review your legal documents.

Written By Robert L. Buzzendore, Esquire

As Reviewed By William F. Hoffmeyer, Esquire

© Copyright by Hoffmeyer & Semmelman LLC, March 2019