Fixing Five Fundamental Will Drafting Fumbles
"Just" DebtsTestators frequently direct their Executors to pay their "just debts." This term does not have a precise meaning and might lead to unneeded litigation.
Are mortgages on specifically devised real property exonerated out of the residue? What about mortgages on residuary property? The general rule is, if a mortgage was put on by the testator and is his debt, then, as to specifically devised property, the mortgage will be discharged from the residuary estate.
Probate courts are courts of equity. Debts barred by bankruptcy or the statute of limitations may be "just." The fact that a debt is barred by the statute of limitations in no way releases the debtor from his moral obligation to pay it. Moreover, one of the maxims which courts of equity should always act upon is. . ."that he who seeks equity must do equity." Mix v. Sodd 126 Cal App 3rd 386, 178 Cal Rptr. 736 (1981) citing Booth v. Hoskins, 75 Cal 271.
Don't use Outmoded or Undefined Terms"My Estate." Does that term, used in a will, include non-probate assets, which are included in the estate for tax purposes? Is it intended to?
"Adjusted Gross Estate." Does that term have its meaning under the pre-1976 Marital Deduction Rules? As used in former Section 2057(c) relating to the QFOBI deduction? As used in Section 6166? Perhaps some other meaning entirely?
"Net Estate." If the client's objective is to leave a beneficiary a portion of the "distributable assets," then it should phased in terms of the assets reduced by specific items, such as claims, administration expenses and taxes.
"Necessary~~ or "Advisable" -- NOT BOTHA trust agreement provides: "The Trustee may distribute trust assets as is necessary or advisable for the beneficiary's support in reasonable comfort."
"Necessary" and "Advisable" do not mean the same thing. In fact, they may be antonyms. "Necessary" implies need. It may indicate an intention to only provide "necessaries" and to first look at the beneficiary's other resources. To the contrary, "advisable" is almost a synonym for "reasonable" and gives the trustee broad discretion. We should avoid terms which may be polar opposites like the plague. See Schlesinger, "English as A Second Language for Lawyers," U. of Miami 12~ Ann. Inst. on Est. Plan., Ch. 7 (C) para. 713 regarding the phrase "and/or."
Identify Charitable Beneficiaries Correctly.In Ventura County Humane Society for Prevention of Cruelty to Children and Animals v. Holloway, 40 Cal. App. 3d 1043, 91 Cal. Rptr. 269 (1970), the decedent left the bulk of his very substantial estate the "Society for the Prevention of Cruelty to Animals (National or Local)." A plethora of SPCAs claimed the bequest. At the very least this could give rise to a construction proceeding. At worst, the draftsman could find himself in a difficult situation.
It is very easy to look up names of charities in the IRS publication "Cumulative List of Organizations." Proper names and addresses of many groups may be found in the "Encyclopedia of Associations," available in public libraries. A charity should be identified in the will by its proper corporate name and addresses.
Avoid "Testamentary Libel"Your client tells you that his son is a no good, womanizing, draft-dodging, lying bum. The client wants to reduce his errant son's bequest, but that's not enough. He wants to share his reasons with the world.
He should be discouraged from such action. See Brown v. Du Frey, 134 N.E. 2d 469, 1 N.Y. 2d 190, (1956) upholding a verdict for testamentary libel where the testatrix stated:
"...during my life [my ex-husband] abandoned me, made no provision for my support, treated me with complete indifference and did not display any affection or regard for me." On the other hand, statements in a will, no matter how scurrilous, may, if they are "pertinent and relevant" to the probate proceeding, be absolutely privileged and inactionable. Binder v. Oregon Bank, 284 Ore 89, 585 P. 2d 655 (1978). See also Fulston, "The Case of the Vindictive Testator," 57 Ill.B.J. 93 (1969) and Whittington, "Libel in a Will," 110 Trusts and Estates 902 (1971]