Cautionary Tale: Even Celebrities Don't Always Get What They Pay For

According to a recent Forbes article, it looks like Philip Seymour Hoffman left a little more drama post mortem by some problematic wording in his Will.  According to the report, Hoffman's Will left his estate (estimated to be roughly $35 million) entirely to his children's mother.  However, since she was not his spouse (only ever his girlfriend), she would face substantial federal estate taxes on about $30 million of the estate, as well as New York State estate taxes on almost all of the estate.  Evidently Mr. Hoffman did foresee this potential problem, and so the drafting attorney wrote a specific "disclaimer" clause into the Will, which would allow his girlfriend to "disclaim" her inheritance, which would then go into a Trust for their son (which would avoid having another estate tax applied to it when Hoffman's son's mother passes away).

The problem? Hoffman only named the son in the Will, but when the actor died earlier this year, he left 3 children.  Now the Surrogate's Court will have to grapple with how, and whether, the other two children can share in the Trust created by their father's Will and their mother's - expected - disclaimer of her share.

With the amount of money that Mr. Hoffman had, and the fact that he lived in a City with hundreds of top-notch attorneys, it is very surprising to me that his Will was so inartfully drafted, as to not anticipate any future children.  As quoted in the Forbes article, a New York Law School professor noted:

One extra sentence in the will could have avoided these issues ... for instance by saying, “Any reference to [Hoffman's son] includes children born to me after him.”

In my practice I run into this situation often.  There may be only one child then living when a parent writes their Will (which child I usually name in one clause in order to satisfy the Rule Against Perpetuities ... but that's an issue for another blog post).  But if there are any more children anticipated (and there usually are), my "standard" Trust clause reads to the effect that a Trust is to be created for "as many of my children then living".  So even if a person creates a Will with only one child in mind, all his or her children will be taken care of by a Trust if any more children are born after signing the Will (without any need to necessarily revise the Will).

I'm just a country lawyer in Upstate New York - and probably charge less than 1/3 what most attorneys in Mr. Hoffman's Manhattan neighborhood do - but I wouldn't have let this happen to his kids.  A cautionary tale then, for those impressed with white-shoe firms and fancy ZIP codes: caveat emptor.