If You Don’t Mention Some of Your Property in Your Will, Who Gets it?

Robert Ray

Poorly drafted wills

Most wills have a residuary clause. That clause is usually at the end of the will and says something like “I give all the rest and residue of my property to…” If property owned by the testator is not mentioned in the main part of the will, the residuary clause will determine who gets that property. What happens if your will does not have a residuary clause?

In a 2014 case from the Florida Supreme Court that issue was before the court. A lady, the testator, had used an “E-Z Legal Form” for her will. It was properly executed and attested by two witnesses which Florida requires but it did not have a residuary clause. The will detailed all the property that she owned at the time and left the “listed” property to her sister. The will had a provision that if the sister didn’t survive her, the listed property would go to one of her brothers. The sister died before the testator.

The sister left all of her property to the testator. The testator opened a separate account and put all of her sister’s property in that new account which was not listed in her will. The testator prepared an “addendum” to her “E-Z Legal Form” will that said “all my worldly possessions” go to my brother. It was in her handwriting and attested to by one person. The brother claimed all the property based on the will and the “addendum” which he claimed added a residuary clause to the will. The testator’s nieces from another brother claimed part of the property in the new account that came from the testator’s sister. They claimed that the will did not mention the new account and the “addendum” was not an enforceable testamentary instrument because it was not attested to by two witnesses. If the property was not listed, then the testator died intestate as to that property. The Supreme Court agreed with the nieces.

The court mentioned the danger of laymen using form wills and noted that in all probability the testator wanted her brother to have all of her property but the courts are limited to what the will says. Since the will did not have a residuary clause and the “addendum” was not properly executed with two witnesses, it could not be considered and the testator died intestate as to that property not listed. It would then go to her heirs, including the nieces, under the laws of descent and distribution.  No. SC11-2147.


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The Author

Robert Ray

Robert Ray handles inheritance disputes of all kinds. He takes cases throughout Texas.
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