Problems with Anna Nicole Smith's Will
I've stayed away from blogging about the Anna Nicole Smith situation so far, as I'm not particularly interested in the tabloid aspects of Ms. Smith's life. However, another estate planning attorney e-mailed me a copy of Ms. Smith's Will (here as a pdf), and I had to take a look. I found it fascinating for reasons other than the fact that Ms. Smith lived a very messy life.
My first and biggest observation is that the Will is a mess. And the attorney who drafted it has some serious explaining to do.
Let's start with the strangeness of the disinheritance, in ARTICLE I. Ms. Smith says that "Except as otherwise provided in this Will, I have intentionally omitted to provide for my spouse and other heirs, including future spouses and children and other descendants now living and those hereafter born or adopted, as well as existing and future stepchildren and foster children." It always raises a red flag for me when there are references in a Will to relationships that don't exist. Ms. Smith wasn't married when the Will was signed -- why does this Article refer to her spouse? Ms. Smith didn't have stepchildren or foster children, did she -- why are they mentioned?
Ms. Smith's goal might have been to essentially shut out everyone but her son, but I question whether her estate planner really ran through the various scenarios with her. Did she REALLY mean to disinherit any child of hers born or adopted in the future?
Ms. Smith certainly deserves some of the blame if the above language does not match her intent, since she went through an entire pregnancy without changing her Will. But what really makes this Will a failure in terms of drafting is ARTICLE II, which states in relevant part that...
"All of the property of my estate... shall be distributed to HOWARD STERN, Esq., to hold in trust for my child under such terms as he and a court of competent jurisdiction may declare, such that my children are distributed sufficient sums for the [sic] health, education, and support according to their accustomed manner of living....
(Emphasis added.) Did Ms. Smith mean to benefit only her son Daniel? If so, I understand the reference to "child." But why mention "children" and "their," words that obviously refer to more than one child? Are these references intended to fall within the exception to disinheritance found in Article I? If so, then why was disinheritance of future children included at all in the Will?
If I had to guess, I'd say that the drafting attorney -- who, from this, doesn't appear to be an estate planner -- took a form, started tinkering with it, and produced something that is going to spark a ton of litigation. I'd call that a bad day's work.
