By Tim Barkley. April 2021.

The best-laid schemes of mice and men …

The phone rings. “This is Tim Barkley.”

“My dad just died and we found his will you drew up. It doesn’t look like he ever signed it. It says ‘DRAFT’ at the top. Can you check and see if he signed it?”

“Well, I’m looking in his file, and we don’t have a signature page, but it looks like he came in to see us in 1998, so that was before we scanned signature pages.”

“You mean you don’t have the original in your safe?”

“No. Even if he did sign it, we never keep originals. Let me tell you sometime about the two local lawyers who died and all their files were sent to the dump. For years, people would come into my office asking if I knew where their mother’s will could be. I had to tell them to check the Landfill. I never keep originals.”

“That’s terrible! Well, where else could it be?”

“Look hard. I remember one estate where we didn’t find the will for about 3 months. Then I found a safe in the closet in the spare bedroom, under a pile of dirty linens.”

“Well, I know Daddy’s house really well, and I helped him with his bills before he died, so I don’t think it’s hiding anywhere around here.”

“Did he have a safe deposit box?”

“No, he didn’t trust banks.”

“Maybe it was filed with the Register of Wills. You can call them and ask.”

“I don’t think so. Daddy was very private.”

“Then if you can’t find the original of the 1998 will, he died without a will, unless there’s a will from before 1998.”

“Daddy never threw anything away, so we have his original will from 1973. That was before he was divorced from his first wife and married our Mom. But the new will said what he wanted, and it says he ‘revokes all prior wills.’”

“Sorry, but it’s not a will and it doesn’t revoke prior wills unless it’s signed in front of two witnesses. Is it signed?”

“No, there’s not even a signature page.”

“Yeah, we stopped sending out signature pages on drafts years ago, when a client signed the draft will and refused to pay their bill.

“If he never signed the new will, then the 1973 will is still good.”

“But it leaves everything to his first wife!”

“Well, then he has a will, but his first wife doesn’t get anything, because the law says that if they were divorced, his will is administered as if she died before him. So you don’t need to worry about that. What does the ’73 will say happens if she didn’t survive him?”

“Well … I’m not sure they were really divorced. Nobody ever filed papers. They just signed an agreement that Daddy drew up, and separated.”

“Then they were still married – and he was never married to your Mom. That would be ‘bigamy.’ Even if he had a new will, the first wife – his only wife – is entitled to one-third of his estate.”

“But they were separated for 40 years! And that makes us bastards!”

“Let me tell you sometime about the guy who died without a will, who was on wife number three when he died – except that he had never divorced wives one and two. Wife number one got everything when he died, even though they’d been separated for about 70 years.

“But, for what it’s worth, the law says you and any siblings are legitimate children of your father and your mother. The law disfavors illegitimacy.

“Anyway, your father and his first wife were still married when your dad died. Unless, of course, she died before he did.”

“Well, she hasn’t died. She’s living in a nursing home in Frederick.”

“You’ve kept in touch?”

“Yeah.” Pause. “She was my mother’s sister.”

“Oh. Wow.” Pause to digest this.

“Well, she’s incompetent anyway, so nobody is going to try to get any of his money.”

“Maybe. If she had kids, her kids might try to enforce her rights in his estate.”

“No kids. At least, we don’t think so. After she and Daddy separated, she moved away and after she came back, she never talked about what happened while she was gone.”

“Oh.” Pause. “Anyway, if she is on Medicaid – if the State is paying for her nursing home – then the Maryland Department of Health is going to file a claim in your father’s estate for her share of his estate.”

“She always said she was disabled and she lived on welfare, so she probably is getting Medicaid. But the only thing in the estate is his house, and my family and I live there!”

“Wow. That’s rough. But unless you are disabled, MDH can collect.”

“That’s not fair!”

“It would have been better if your dad had hired a lawyer back in the 70s. I really am sorry, but that’s just what the law says. Don’t shoot the messenger!”

For lack of a nail, the shoe was lost … and so it sometimes goes.

Make the time to visit with a planning professional and be sure your plans don’t “gang agley.”


Attorney Tim Barkley
The Tim Barkley Law Offices
One Park Avenue
P.O. Box 1136
Mount Airy
Maryland 21771

 (301) 829-3778

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