When Creating a Will, Words Matter

Barry Donovan died a happy man. Not only was he joining his late wife, Sarah, in the great beyond, he was also confident his assets would be fairly distributed in accordance with his will.  Several days after he had been laid to rest, Barry’s five children—James, John, Sarah, Sally, and Iris—and his surviving siblings—Joseph, Sally, and Sarah—gathered for the reading of his will.

Unfortunately, the reading did not go well. Confusion reigned. Among Barry’s specific bequests:

  • “To Sarah, I leave my collection of mint U.S. gold pieces, as well as any remaining funds in my bank account at Farmer’s Trust.” Unfortunately, the executor could not determine which Sarah the will referred to: His daughter or his sister?  And since the will had been executed prior to his wife Sarah’s death, there was also some question as to whether Barry’s late wife was the intended recipient.  In addition, no one knew where the gold pieces were located.  Barry’s daughter Iris claimed the coins had been sold to pay off a gambling debt.  Eventually, however, some gold coins were found in a box stuck in Barry’s freezer.  Some of the coins were dented and damaged.  The executor did not judge them to be in mint condition.  He was convinced the coins referred to in the will were gone. Instead, the executor placed the coins in the residual estate.  The executor also determined that the surviving Sarahs were the intended beneficiaries of the cash account, and he split the balance between them.
  • “To Sally, I leave the farm, including all animals, equipment, buildings, and fixtures.” Barry’s sister and daughter, both named Sally, each believed they alone were the intended recipient of the farm, however neither knew which farm Barry was referring to. It seems Barry owned two farms, one of which he had deeded to his son, Joseph, prior to his death, and the other, a farm that consisted solely of pasture, was leased to tenant farmers. The term of the leases was 99 years. After a considerable amount of time and research, the executor found the deed to a third farm. Because he could not determine the rightful owner, he sold the farm and split the proceeds among the two Sallys.
  • “To James, I leave my car.” Since there was only one James in the family, the intended recipient of a car was clear. Unfortunately, at the time of his death, Barry owned two cars, one a classic 1958 Chevy, valued at more than $100,000, and the other, an old Cadillac propped up on bricks in Barry’s driveway because it had no tires. Under protest from all the other children, who believed they should be entitled to a share of the classic car, the executor transferred the title of the classic car to James.

When the identity of beneficiaries or assets disposed of by will are unclear, bad things happen.  In the case of Barry’s family, his lack of details almost ensured that his testamentary wishes were not carried out.  There is no better way to foment dissent among family members than a will that is unclear, and leaves some family members feeling that they are being treated unfairly.

For example, if the executor had found the mint condition coins, but could not determine who the intended recipient was, he may have ordered the coins sold and the proceeds divided among the surviving Sarahs, thereby reducing the value of daughter Sarah’s bequest. Similarly, if the executor determined the intended recipient was Barry’s late wife, Sarah, he could have ordered the coins sold and the proceeds distributed among her heirs.  In that case, the value of daughter Sarah’s bequest would be further reduced, at the same time increasing the value of the bequests to the other children.  Barry’s intentions would no longer matter.

When preparing a will, bequests are categorized as specific or residuary.  Specific bequests refer to a particular asset, such as jewelry, cash, homes, or cars.  Residuary bequests refer to assets that remain after specific bequests have been distributed.  When making such bequests, the words used matter, not only to identify beneficiaries and assets, but also to state intentions behind the bequests.

For that reason, it is important to follow these steps when preparing a will:

  • Inventory and completely describe all assets. Provide complete physical descriptions, and state the estimated value and location, as well as the location of documents related to ownership.  For example, a property description should be as specific as possible:  “To X, I bequeath the 500-acre farm located on (legal description) in (city) (county) (state), including all buildings, fixtures, and equipment, as evidenced by the deed filed with the recorder of deeds on (date) by (owner).  Current FMV: $200,000.”
  • Provide information helpful in identifying intended beneficiaries. Beneficiary designations should include full legal names (including middle names), last known addresses, dates of birth, and the relationship to the testator. For example, “To my daughter, Sally, d.o.b. 5/14/1990, currently residing at XXX Millway Rd., Athens, GA, I bequeath….”
  • State intentions behind unequal distributions to family members, or reasons for denying benefits to a family member. Oral promises made prior to death, but not confirmed by will, carry no weight in probate court.  However, often when disputes arise, the court is forced to rely on testimony from those who stand to benefit from a challenge to the will. By stating intentions clearly, claims that a potential beneficiary was unintentionally excluded or that the testator was not of sound mind when making his or her bequests, can be avoided.
  • Do not place conditions on bequests. In some cases, it is inappropriate to specify that certain acts or behaviors must occur in order to receive a bequest.  For example, “I leave the entirety of my estate to my daughter Lea, but only if she divorces Howard and marries Ralph.”  The break-up of a family goes against public policy and will not be permitted to stand. Such conditions could be grounds for invalidating a will. Similarly, bequeathing an item to someone “only if it is in good condition” begs several questions: Who determines what qualifies as “good condition?”  If an item is not judged to be in “good condition,” does the bequest fail, or is the item still distributed to the named recipient?
  • Comply with all language requirements for creating a legal will. State law requires that certain words, terms, and descriptions be used when making bequests by will. Failure to comply could render the will invalid. At a minimum, a will should be reviewed by an attorney to ensure it will not later be invalidated.
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