Written by attorney Steven R. Pogue

Principles in Will Drafting

Principles in Will Drafting

Flowery legal language and old-world formality can be very impressive in drafting a will, not to mention the use of a fancy type font in the title, Last Will and Testament. Unfortunately, all the attention given to impressive niceties can mask a failure to address the two primary principles that are all-important in drafting a will. Those are Validity and Clarity.

The wise drafter thinks of those as twin sisters, each holding a key to a box with double locks. The will holds the property of the decedent. It needs to be opened so that the property can pass to the beneficiaries. In order to do that, the Will twins, Validity and Clarity, both have to be present.

VALIDITY. A will that is invalid is not a will. It is an attempt to make a will. When prepared by an attorney, it is also called “malpractice." Fortunately, it is easy to ensure that our clients’ attempts to make wills result in valid wills.

The first principle in this is that the will needs to be identifiable as a will. It needs to be clear to the reader that the person who made it intended it to be a will. For people doing home-made letter wills, that sometimes becomes an issue. For attorneys, we customarily accomplish that by putting something at the top of the page such as “WILL," which helps clarify things. We also generally include a line that says something to the effect that “I hereby make my will." We will not belabor this point here, just note that a will needs to be a will. The question rarely arises in drafting one intentionally, but has been the subject of much litigation over documents presented after death.

The second principle is that the document needs to make a disposition. It may seem curious to mention that at all, since a lawyer will hardly forget to put in a will that the testator is leaving something to someone. Sadly, however, even with wills drafted by attorneys, we sometimes see an incomplete disposition of the testator’s estate. It may be that the person only wants to mention one thing, to be left to one person, and that is fine if that is the intent. That, however, is a rare intent. Most people plan to dispose of their entire estates when they make their wills, not to die intestate as to some property or another. A well-written residuary clause avoids that problem, but those sometimes are left out, with messy results.

The third principle is that the will must be executed according to law. That is not difficult, and is so rarely a problem with will drafted by attorneys that it scarcely merits mention except for a few potentially thorny issues.

California law (Probate Code §6112) states that if a witness to a will is also a beneficiary, called an “interested" person, any devise to that person is limited to what he or she would receive under intestate succession, unless there are two other uninterested witnesses. This is not a problem where, for example, a testator is leaving her estate to her two sons, who are her only heirs. But if she wants to leave something to Cousin George, he should not be a witness to the will, as the gift to him would be invalid.

The main other point to remember with regard to witnesses is that it is wise to include an affidavit that makes the will self-proving. While a will is perfectly valid if it is simply signed by the witnesses as witnesses, failure to include the affidavit setting forth the facts about the signing and witnessing of the will, and attesting that it conformed to law, will require that someone find the witnesses (maybe 40 years later) and get them to sign a declaration to that effect. Good luck with that, especially if the witnesses have done as so many people do (all, in fact) and died.

This problem can be avoided by including language reciting that the legal requirements were fulfilled at the time of the signing. Something such as this:

On November 27, 2007, Elvira T. Bunkum declared to us, the undersigned, that the foregoing instrument was her last will, and she requested us to act as witnesses to it and to her signing of it. She then signed the will in our presence, both of us being present at the same time. We now, at her request and in her presence and the presence of one another, subscribe our names hereunto as witnesses, and declare that the testator signed and executed the instrument as her last will, that she signed willingly, and that she executed it as her free and voluntary act for the purposes therein expressed. We are each of the opinion that Elvira T. Bunkum is of sound mind, is aware of what she is doing, and is acting upon her own desires and intentions with awareness of the significance of her actions.

We each so declare under penalty of perjury of the laws of the State of California.

That is a model, not a form, but it works.

CLARITY. Since the purpose of the will is to ensure that the property of the decedent is passed to the persons entitled to receive it, it is vital that the persons who will be reading and interpreting the will (invariably out of the presence of the testator, who will have died) are able to ascertain what was intended. Further, they should be able to do that without resort to extrinsic information or, worse yet, resort to the courts.

The will needs to be clear. A will that says “I leave my house to my brother George and my other house to my friend Joe" is not clear. The testator may know what was meant. The lawyer may know what was meant. No one else will, or they may pretend they don’t if the two houses are of dissimilar value.

The most common areas in which will drafters fail the Clarity test include the following:

Naming the Executor: Are there two executors named? Are they co-executors or successor (alternate) executors? If co-executors, and one cannot act, does the other act alone, or with a different co-executor?

Specific Gifts: “My house" may work if there is only one, but what if a later contestant alleges that the gift refers to the house in which the decedent lived when the will was written, not the house in which he lived 35 years later at death? “My house at 1432 Square Circle, if I still own it at my death," or “my principal residence at my death" is much clearer.

Lapsed Gifts. This is probably the worst area, even for attorneys. “I leave my entire estate to my three children, if they survive me, in equal shares, and if not, to my grandchildren." What does THAT mean? “If any child of mine predeceases me, I leave that child’s share to my grandchildren in equal shares." Which grandchildren? All of them? Just the children of the one who died? How about if she died childless?

In drafting any provision, the drafter should look at and ask, “When a person who has never discussed this with the testator or with me, her wise attorney, reads this in 25 years, is there any possible way it can be misunderstood?" If there is, it will be, so fix it.

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