The Repercussions of Drafting Estate Planning Documents Imprecisely

April 29, 2011
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You’ve probably heard the notion that one incorrectly drafted phrase or sentence can have great detrimental effects on your will or trust.  Later in this post, we will provide two examples of this consequence.

But first, we provide essential background to help further underscore the main point that preparing a will takes precision, careful attention and the understanding of certain longstanding standards in the construction and interpretations of legal documents.

Main Purpose of Wills and Trusts

The major purpose of a will or trust is to tell the reader exactly what the decedent wants done with his or her property.  The overall goal of everyone involved, then, is to fulfill the decedent’s final wishes exactly.

To help accomplish the decedent’s desires, all state laws provide that with very limited exception, wills and trusts must be in writing.  In this way, the decedent’s personal representative can more easily determine exactly what to do with each item of property.  If the will or trust clearly states your intentions for all your property and all the intended recipients are in a position to receive it, then there should be little to no trouble.

But alas, as we all know, life is rarely that simple.

The “Four Corners” of Your Estate Document

Once the court gets involved in the administration of your estate, it will do its best to rely only on the words written in the document to make its decisions.  The court will look for the “plain meaning” within the “four corners” of the document.  The court does not interpret how the will should have been written because if it did so, it would essentially be rewriting and therefore creating a new will itself.

But still, the court must act when portions of the document are confusing.  A phrase in the will may be written ambiguously.  The decedent may no longer own a listed item of property.  A listed beneficiary may no longer be alive.  How does the court move forward?

In these cases, the court must determine if the testator’s intent can be gleaned from the remainder of the document itself (see the definition of “ambiguity, patent” in this post).  If not, then the court must rely on external evidence (also see the “ambiguity, latent” definition in the same post), including additional facts, existing law, or even “rules of construction” (i.e. traditional guidelines for drafting wills and trusts) that have existed for hundreds of years.

The 3rd edition of Professors Jeffrey N. Pennell and Alan Newman’s book “Wills, Trusts, and Estates” provides the following examples that help illustrate the court’s potential burden.

Patent Ambiguity Example

Your will states, “I leave all my personal property to my spouse, X”.  The phrase “personal property” is ambiguous, and must be interpreted by the court, because it could refer to:

  • All of the property held by you personally.
  • All property held in your name only, as opposed to jointly owned property.
  • All property having personal meaning to you (such as jewelry, pictures, letters, heirlooms, etc.).
  • All property that is not “real property”.

o   Traditionally, the law splits all property into two types:  1) “real property” – which is essentially real estate; and 2) “personal property” – which is everything else.

The remainder of your will or trust might clarify your meaning of “personal property” because it will likely list the desired disposition of all of your other assets.  On the other hand, it is easy to see how the court could still misinterpret your intent.

Latent Ambiguity Example

You own a beach house in your own name.  You want your spouse to use it for life, and then, since you two have no kids, you would like to give it to your sister’s kids outright.  You think your sister will have more kids, so you write in your will, “I leave my beach house for my spouse X’s use for life, and then to my sister Z’s heirs”.

This seemingly innocuous phrasing creates a huge mess, and creates different results in different states.  Here is a partial list of issues:

  • Does the phrase “Z’s heirs” include her husband or just her kids?
  • If the beach house is in another state, which state law determines who Z’s heirs are?
  • If the law changes over time, does the old or new law apply?  Before you say “new law”, remember that the court’s job is to determine your intent as stated in your will.
  • When do we determine who Z’s heirs are?  At your death?  At Z’s death?
  • What if Z dies before X?

After your death, the court is going to have real problems figuring out your intent.  Factors such as which of Z’s heirs actually survived and the appropriate state law may be used for guidance.  Additionally, one long-established “rule of construction” instructs the court to avoid invalidating an ambiguous phrase in a will or trust.  Therefore, the court here would likely have enough justification to give the beach house to someone.

However, chances are more remote the court’s choice would have anything to do with your actual wishes.  Any misinterpretation here, or in the prior example, could have adverse results ranging from an undesired person getting the asset to an increased estate tax bill.

Conclusion

Estate Planning lawyers regularly consult one another to make sure the wording in a will or trust clause appropriately accomplishes the client’s goals.  I greatly encourage you to also seek input from legal counsel when crafting your own estate plan rather relying on software or online document preparation firms that don’t have a trained attorney reviewing the result.

 The Repercussions of Drafting Estate Planning Documents Imprecisely
 The Repercussions of Drafting Estate Planning Documents Imprecisely

Scott

Scott R. Zucker, Esq. is the owner of The Zucker Law Firm PLLC, located just outside the Capital Beltway in Annandale, within five miles of the City of Fairfax, the county seat of beautiful Fairfax County, Virginia. The firm focuses mainly on estate planning services for Virginia, Maryland and Pennsylvania clientele, and seeks to do so in an affordable and approachable way. People interested in learning more can contact Scott by phone or email.

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