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Thursday, September 01, 2005

New Law or Old Law?

What happens if you provide in your Florida last will that assets will pass at your death or at some later time to your “heirs at law,” and inbetween the time you signed your last will and your death/when the provision became active, the law of Florida is changed? Do the assets pass according to the law at the time you sign your last will, or when the provision becomes active? In the case of Karasek v. Lamping Trust, et al, Case No. 4D04-2803. August 31, 2005, Florida’s Fourth District Court of Appeals held that the answer to the question is based on the testator’s intent, and in this case, the law at the time the last will was entered into was held to apply, not the law as later amended.

This concept has application to any reference in a will or trust to an applicable law. What should a draftsman do if it is desired that the effect of the provision be varied if the law changes? Adding the phrase “as amended” to the reference to the law should be effective to accomplish that.

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