A person’s last will and testament is called his “Will” because the document is supposed to reflect the will (or intention) of the person signing the document. A person making a Will is called the “testator.” Another way of saying this is, the document called a Will reflects the intention of the person making the document with respect to how his property will pass after his death and who will handle his affairs, typically called the executor.
Wills are to be read in a manner that effectuates the intention of the testator as expressed in the Will document, as closely as possible. It is said that a Will is to be interpreted in a manner that effectuates the probable intent of the testator. We do not read Wills as a typical legal document looking for mistakes that might make the Will fail; instead, we read a Will in a manner that effectuates the intentions expressed in the Will as best as those intentions can be accomplished.
Through a Will, a person can effectuate any purpose he wants with his assets subject to a few, very limited exceptions. A Will cannot be used to accomplish a desire that is contrary to public policy. For instance, a testator could not say, “I give my entire estate to my daughter on the condition that she divorces her Irish husband. I don’t like people who are Irish, so my daughter must divorce her Irish husband in order to receive my estate. If she doesn’t divorce her husband, then my estate shall pass to the dogs.” Such a devise (which is the name given to an inheritance under our laws) is against public policy.
If a person’s Will contained a devise such as this, the offending language would be stricken from the Will. In this case, the daughter would receive the inheritance without the requirement that she divorce her Irish husband.
In a Will, a person can leave his property to whomever he wants, with one exception. If the testator is married, his spouse may be able to receive one-third of his estate even if he disinherits his spouse. In other words, if Mr. Smith disinherits his spouse and leaves his entire estate to his children, Mrs. Smith might be able to claim one-third of Mr. Smith’s estate. This is called an “elective share.” Whether Mrs. Smith can obtain any of Mr. Smith’s estate depends on the amount of money Mrs. Smith has in her name. The more assets she has in her name, the less she will receive from Mr. Smith’s estate.
Other than a spouse’s right to claim against a deceased spouse’s estate and public policy concerns, the testator is free to leave his estate any way he chooses. If a person has four children, he is free to leave his entire estate to three of them and disinherit one of them. He doesn’t have to leave the disinherited child $1 or $5 or any other arbitrary sum. Mr. Smith is free to simply disinherit the child.
A Will is a document that is designed to reflect your intentions. Through it, you can leave your property how you want, to whom you want. It’s your money, so as long as you don’t offend common decency, you can do with your property what you want.
Putting your wishes on paper is only part of the process. How those instructions are interpreted and enforced can shape what actually happens down the line. Taking a closer look at how a will functions in practice can help avoid outcomes you didn’t intend.
A will should reflect clear intentions and comply with legal requirements to be effective. Taking a careful approach can help prevent misunderstandings and ensure that your wishes are carried out properly.