Explaining Common Will Clauses

Janet asked me, “We want a simple, one-page will, one that we can understand. Why can’t we get what we want?” Many people have wills that they do not understand. You may have read your wills and still be unsure of their meaning. A person’s level of education usually has little to do with their understanding of their wills. Lawyers often use unfamiliar legal jargon that often confuses those not familiar with common will clauses.

Avoiding Legal Boilerplate

Words such as “devising” and “bequeathing” frequently appear in legal documents like wills. To many people, they sound like a foreign language. I do not use foreign phrases or legal jargon in the wills I prepare.

Legal documents often contain traditional boilerplate wording. Many people have difficulty understanding references to devises and bequests of real and personal property. Many lawyers would struggle to explain the distinction between the two terms. A devise is a gift of real property or real estate under a will. A bequest is a gift of money or any property other than real estate.

Standard clauses are commonly used in wills because the law has determined that certain wording produces specific legal results. However, this practice can sometimes lead to strange and unintended outcomes when lawyers rely on precedents without fully considering whether the language is understandable or appropriate.

Common Will Clauses

Let’s look at the structure of a will and explain, in plain language, some common clauses and what they mean. Most wills follow a simple structure and contain some or all of the following clauses:

• Identification
• Revocation

Identification

The will must identify you. You should know whose will you are reading. Without proper identification and a statement that the document is intended to be a will, it could simply be a letter with no legal effect.

Historically, a will dealt only with personal property, while a testament dealt with the transfer of real estate. Over time, these concepts merged into the familiar phrase:
“This is my Last Will and Testament.”

There is no magic in the words, “I, being of sound mind and body, make this my last will.” These words do not have to appear in your will. However, the document must clearly be testamentary (to take effect upon death) in nature. Otherwise, ordinary expressions of affection could be mistaken for testamentary intentions. For example, a love letter stating, “I will give all that I own in return for your love,” does not create a valid will unless there is testamentary intent, whether holograph or otherwise.

Revocation

A will should specify whether it is cancelling or supplementing a previous will. If it supplements an existing will, it is called a codicil. A codicil is simply an amendment to a will. A person may have more than one will, provided the documents do not conflict. Individuals with assets in multiple countries often require separate wills to address the legal and tax rules of each jurisdiction.

Clients frequently want to prepare a new will but hesitate to request the original from their previous lawyer. Fortunately, a properly drafted revocation clause generally solves this problem. The new will automatically revokes all prior wills upon signing.

Estate Trustee or Executor?

In my next post, I’ll explain the difference to you and Janet.

Need help? Contact my office.