MAKING YOUR WILL A FORTRESS

A Will is really an amazing document. A Will is often no more than five pages in length, much of which is boilerplate language, yet it serves as the instrument through which a person passes everything he owns to those he loves after his death.

Of course, some people might not have much to pass, but that’s one of the amazing features of a Will – the value of the estate is irrelevant. Whether the estate is worth millions of dollars or a few hundred, a person’s Will is the document that directs to whom his money passes after his death.

A Will, therefore, is a very important document. Given its importance, a Will should be drafted properly, that goes without saying. Having a Will drafted properly means that, at a minimum, a person should have a lawyer draft his Will. I would not advise drafting your own Will or even buying a form Will or Will-drafting software to draft your Will. Having a lawyer draft your Will doesn’t cost very much money, and having a lawyer draft your Will is well-worth the money that it does cost.

With that said, though, drafting a Will is an art form and not all Wills are drafted with the same skill and with the same precautions having been taken. Today, I want to discuss some of those precautions that should be taken when a Will is drafted.

We’ve all heard that our population is aging – the Baby Boomers are becoming senior citizens. Billions and billions of dollars will, in the coming decades, pass as the Baby Boomers expire. Much of this money will pass under the terms of a Will.

Estate litigation, or challenges to Wills, is a booming business for many lawyers. Estate litigation often involves situations similar to the following: Dad dies. Dad had four children at the time of his death. Before dad died, he drafted four different Wills throughout his life. Dad’s last Will left everything to one child, his daughter with whom he lived for the last two years of his life. Dad’s three, prior Wills left everything he owned to his four children equally. Dad’s estate is worth $400,000.

Believe me, this situation is not unusual. And, believe me, in many of these situations one or all of the three children who stand to take nothing under dad’s last Will consult a lawyer and are advised to challenge dad’s last Will.

If the three, disinherited children challenge dad’s last Will and are successful in having that Will set-aside – then the penultimate Will can be probated and that Will left dad’s estate to the four children equally. To the disinherited children, a successful challenge means the difference between receiving nothing or receiving $100,000, so challenging the Will is worth an effort.

Common challenges to a Will are claims that dad lacked the mental capacity to sign a Will or that the daughter who stands to receive dad’s entire estate exercised undue influence over dad to change the terms of his Will to her favor. Chances are, the favored daughter may have contacted the lawyer who drafted dad’s last Will, and she probably drove dad to the lawyer’s office to have his Will drafted.

The disinherited children’s lawyer will call dad’s lawyer as a witness in the litigation challenging dad’s last Will. The drafting lawyer will be asked questions, such as “who made the appointment for dad?”; “who accompanied dad to your office?”; “when you met with dad to discuss his Will, who was present in the room?” The answers to these questions could prove pivotal to upholding the validity of the Will or setting the Will aside.

So, the preparation that the drafting lawyer has taken surrounding the signing of the Will can be more important than the skill that the lawyer put into the actual terms of the Will. This is another reason why having a lawyer who knows estate planning can prove vitally important. An estate planner will know what precautions must be taken in order to ensure that the Will not only carries-out the client’s intentions but that the Will is signed under circumstances ensuring its ability to withstand challenge.