Sunday, November 28, 2004


By Stockton

A Will is a legal instrument designed to accomplish three things:

1- Disburse assets after death;
2- Anger children and spouse after death;
3- Provide lawyers with business (before and after death).

To gain a firm understanding of Wills, the student and practitioner must know the language of Wills and have nothing better to do with their time.

The "decedent" is the person who has died. The decedent is immediately recognizable as the person not having any fun. If a Will is contested, the decedent will not be in court. If there is a unwelcome odor in the courtroom don't assume the decedent is present. The odor most likely issues from your adversary, especially if he is a BP-BSGP (see below).

"Heirs" (pronounced 'Hairs') are people who have been left something in the Will - sometimes, the children of the decedent. Happy heirs receive more than what they expected. Heirs that frown did not get what they wanted. Some heirs are themselves parents, hence the phrase "heir apparent."

Wills are often drafted in arcane language. To this day, many Wills begin:

Foresooth! Be Ye All Presences Cometh. I, John Smith, being of sound mind, body and spirit do hereby, and with this instrument herewith, make and declare this instrument herein as my last Will and Testament and declare that all wills, testaments and declarations heretofore made, whether by my hand or another, shall be, and hereby are declared, null and void....
Practice Tip #1

Wills are generally quite boring to draft. I suggest using your imagination when drafting a Will. For instance, instead of using the arcane language above, I like to use the following:

If my lawyer is reading this Will I am already dead and someone in the room is responsible.

If the reading of the Will can be done in an creepy, isolated mansion, so much the better. Ideally, you should also arrange for a power outage and for the phones to go dead. Try and draft the Will in hard-to-read calligraphy. That's a nice touch and always appreciated.

Practice Tip #2

If the client has a large estate, he will have many decisions to make. How much does he leave to his wife? How much to the children? How much to the girlfriend(s) How much to the Cabana boy? Unfortunately, in most states, you cannot disinherit your spouse. In New York, a spouse left out of the Will is entitled to an Elective Share and a front row seat at the funeral. The Elective Share statute allows a spouse to elect to take 1/2 or 1/3 of the decedent's remaining assets, whichever is greater. So, always warn clients that if they want to cut their spouse out of the booty, begin disbursing assets while alive. Get rid of all the valuable assets first because 1/2 of a lawn mower and hibachi set isn't a great haul.

Practice Tip #3

Technically, you do not have to affirmatively disinherit someone. If someone is not named in the Will they will take nothing. However, I encourage clients to affirmatively disinherit people in their Will. For example, 'To my eldest son, Tom, I leave nothing, nada, zilch!' This is a great way for a client to express his disappointment in a child even after death.

The Practitoners

There are two types of Will practitioners and two only. First, the balding, pot-bellied, solo, general practitioner. The balding, pot-bellied, solo, general practitioner (or BP-BSGP) is easily recognizable as the man huffing and puffing his way up the courthouse steps, a large mustard stain prominently displayed on his clip-on tie.

There is also the older, dignified lawyer who is either British or gay. The older, dignified lawyer who is either British or gay (or ODLWIEBOG), is easily recognized as the lawyer wearing the three-piece, tweed suit and monocle. He is nervous and will visibly shake when he has to tell the widow that the decedent left half the estate to his (the decedent's) secretary.

Miscellaneous Issues

A Will can make a specific bequest, such as, 'To my youngest daughter, Emily, my collection of earwax'. Or, a Will can make general bequests, 'I leave all my estate, the remainder and residue to my surviving three children...'. While I don't consider it polite to leave anyone your residue, it seems to be a popular bequest.

Many states have a witness requirement. In New York, two witness are required*. In Alabama, three witnesses are required and they must sign in crayon. Always make sure you know how many witnesses are needed.

There have been many cases where a lawyer has not only made himself a beneficiary of a client, but has been a witness to that very same will. Ethics professors frown on such activities but don't listen to them. The best thing a young attorney can do is make friends with rich, lonely, elderly people. Just try and make sure they are very old. You'll want to spend as little time as possible with them.

Here's a script/template for young lawyers when dealing with wealthy, elderly clients.

Secretary: Mrs. Jones is here to see you. She doesn't have an appointment.

Young Lawyer: Tell her I'm busy.

Secretary: It's about a Will

YL: Send her in.

Jones: I have all this money, and no children.

YL: I'm sorry. I know what that's like.

Jones: Have your parents passed?

YL: Yes. I have no family (take out box of tissue).

Jones: None? No brothers or sisters or cousins? I thought I taught your five brothers and three sisters in high school. And didn't you have a host of cousins?

YL: Car crash. Took them all.

Jones: A car crash killed your entire family? Brothers, sisters, aunts, uncles, cousins?

YL: Ummm...yes. More like a Winnebago crash. Forty-three of my relations were killed.

Jones: You poor boy. Can I leave you my entire estate?

YL: If you insist.

Finally, if you actually make a living drafting Wills, congratulations. It is almost always a malpractice-free area of the law. When you draft a Will, your client is the pre-decedent, not the beneficiaries. If you mess up, it won't generally be known until the client is dead. Further, only the client will really know the true intent of the Will and he ain't talking. If the client discovers a gross error in the Will (obviously while he/she is still living), it can then be remedied. No harm, no foul. It is truly a wonderful set-up. So get going. Draft some Wills, and don't get bogged down in tiny little details.

* In New York, the witnesses may have to go into witness protection program prior to actually witnessing the Will.


Audacity said...

You forgot to mention that you can't draft a will if you're planning on leaving some shit in it for you.

Stockton & Tweed Esq said...

Jen, we'd appreciate it if you didn't interpose your outdated ethical standards on impressionable law students. Of course you can draft a will and be a beneficiary of the same will. This is America dammit!

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