Analysis of Anna Nicole Smith’s Will

Below are my comments regarding the Will of Vickie Lynn Marshall, aka Anna Nicole Smith.  Note that the comments are general in nature and reflect my opinion.  Also note that it will be significant which state’s law is eventually deemed to govern.

• Anna executed her will on July 30, 2001 in Los Angeles, California.
• Eric James Lund prepared Anna’s will.
• In Article I, Anna states that she has “intentionally omitted to provide for my spouse and other heirs, including future spouses and children and other descendants now living or those hereafter born or adopted” except for Daniel.  Anna repeats this request in Article 6.2 when she states, “I have intentionally omitted to provide for any of my heirs.”
• The possible ramifications of these provisions include:
  • Dannielynn will not be entitled to a share of Anna’s estate as a pretermitted child because the will express excludes afterborn children.
  • Dannielynn might be precluded from taking by intestate succession because of exclusionary language regarding heirs.  In some states, a testatrix may write a “negative will” indicating an intent to disinherit an heir without making a successful property distribution to another beneficiary.  If her will is governed by such a law, the question will be raised whether this language is sufficient to prove her intent to completely sidestep intestacy.
  • If all heirs are disinherited, Anna’s estate may escheat to the government of the state in which she domiciled at the time of death!  Accordingly, I predict that various governments may enter the fray.
• Anna left her entire estate in trust for Daniel with Howard Stern as the trustee.  In my opinion, the trust is established solely for Daniel and not for any other child.  However, the plural term “children” is used in the provision making it ambiguous.  However, by reading the provision as a whole, it appears clear that Daniel is the sole beneficiary.
• Anna’s will does not provide for the lapse of Daniel’s gift.  Thus, because Daniel predeceased Anna, Anna’s will does not dispose of her estate.  I would probably fail a student in my Estate Planning class if he or she made this type of omission.
• Howard Stern is the executor of her will.  Ron Rale is the first alternate executor, not a co-executor.
• The will contains many provisions which would not be applicable to Anna’s estate and thus it is a puzzle why they were included.  For example, Article 4.1 discusses the marital deduction but Anna was unmarried at the time she executed her will and expressly omitted any future spouse.
• The will inconsistently uses the term “child” and “children” when referring to Daniel.  As mentioned before, reading the will as a whole leads to the conclusion that all references should be in the singular.

Special thanks to Brett Cramer (May 2008 J.D. Candidate, Texas Tech University School of Law) for being the first person to send me a copy of Anna’s will.  And, to everyone else who sent me a copy, I really appreciate your thoughtfulness.