Hon. Steve M. King 2018-02-27 18:41:18
Will drafting tips from the bench. Wills drawn by attorneys who have not done so before or only do so as an accommodation to a friend or client (where the attorney is not principally engaged in an estate planning and probate practice) can cause unanticipated headaches when the will must be presented for probate and then actually administered. Attorneys who keep and use an all-purpose “standard” simple will form can often be unaware of perils, which will only be discovered after the client is deceased. The most common problems can be grouped into a few categories: Imprecision/Ambiguity Be specific: In an attempt at simplicity, the will may read: “I leave everything to my wife.” However, a testator married and divorced multiple times after the will was executed can create thorny issues. Likewise, a will leaving “everything to my children,” or using nicknames, or a grandparent’s possibly faulty memory for specific names may frequently require a later reformation/ modification proceeding to determine the testator’s intent as to the takers under the will.1 Charitable gifts: The precise name of the charity can make a real difference as to who is actually entitled to the bequest. A small, single-purpose nonprofit may go out of business. A charitable bequest with too many restrictions may cause the charity to decline the gift. Anticipate change: Specific bequests of bank accounts with account numbers may be adeemed if the accounts change or if the bank is later sold, merged, or otherwise ceases to exist. Revoke prior wills: A will executed under the laws of a foreign country might not be effectively revoked “by operation of law” when a Texas will is made. Write a residuary clause: Just because the client thinks everything has been specifically disposed of is no reason to omit a residuary clause because of the possibility that property will have been sold, accounts transferred, or other changes leading to lapsed gifts. The general presumption against intestacy under Texas law is not sufficient to create a residuary clause in a will if none exists.2 Suggestions: • Use common and easy-to-understand language (cf: the Plain Language Initiative of the Texas Office of Consumer Credit).3 • Determine if the charity selected has an official name or national registration number.4 • Carefully consider whether to even use “will,” “shall,” and “must” in a will. • Try to avoid use of the passive voice. • Get the correct full names of family members and list them. • Avoid legalese such as “hereinabove,” “hereafter,” “in relation to,” “touching,” and “concerning.” Consider “everything I own,” instead of “all right, title, and interest,” or the “rest, residue, and remainder.” • Latin is rarely helpful in adding understanding: prima facie and ab initio can safely be omitted. • The word “omitted” can also be omitted. Impulse Control: The Perils of Not Thinking It Through Think how the will actually “works”: One senior attorney who famously wrote many wills providing that “In the event my wife and I die as a result of a common accident or disaster” but then made no provision for passage of property in any other event. This created an intestacy, which had to be dealt with by requesting declaratory relief. Taking the time to work through how the property will flow may avoid this. Use simple trust language: Instead of “To Johnny, in trust,” word such a casual bequest as “To my great-nephew, John Albert Thompson, in trust until age 25 with my executor to serve as trustee without bond.” Back to basics: Always make sure that the will creates an independent administration, waives bond, and creates a power of sale. Scrivener’s Errors While the term “scrivener” conjures up a medieval image of a professional writer or scribe, scrivener’s errors today are mostly the result of the cut-and-paste operation of a word processing program. All too often, the name of an individual (for example, one to be nominated as independent executor) is either actually the name left over from a previous will drafted using that form or the testator’s name (“I, John Smith, hereby designate John Smith as my independent executor”). This often results from preparing the will for one spouse, then failing to carefully check when the same form is used to write the will for the other spouse. Having another pair of eyes to proof the document is often the simplest way to catch this. The word processor’s spell-checker won’t catch such errors. On the topic of proofreading, perhaps Mark Twain’s observation is the most apt: “You think you are reading proof, whereas you are merely reading your own mind; your statement of the thing is full of holes & vacancies but you don’t know it, because you are filling them from your mind as you go along. Sometimes—but not often enough—the printer’s proof-reader saves you—& offends you—with this cold sign in the margin: (?) & you search the passage & find that the insulter is right—it doesn’t say what you thought it did: the gas-fixtures are there, but you didn’t light the jets.”5 Faulty Understanding of Substantive Law Keep up: One retired jurist, in writing his own will (in fact, a fourth codicil), wrote: “The passage of time has caused my earlier reference to separate property to no longer be applicable. The passage of time has converted everything I own to become community property and it shall be treated as such.” Lawyers assuming the effect of the law incorrectly is nothing new. The old saying that “No man’s life, liberty, or property are safe while the legislature is in session,” is most often attributed to an opinion from a New York probate matter in 1866, and even then was recognized as already an old saying. The reported case concerns the accounting of a deceased attorney’s estate that had been unaware of a major change in intestacy law several years before, to the detriment of his client.6 Over the past 20 years, massive change has occurred in both statutory and decisional Texas probate law. Even the “non-substantive” revision of the Texas Probate Code to the Texas Estates Code produced many unanticipated consequences and unanswered questions. Attorneys who presume nothing major has changed can be in for a shock. Execution and Attestation Errors: Use a Script The requisites for proper execution and attestation of a written (non-holographic) will as well as the procedure for a simultaneous execution, attestation, and self-proving ceremony are set out in a forthright manner in the Texas Estates Code.7 All too often, wills are not executed with any particular ceremony. The witnesses are just instructed to sign the signature blanks without being asked to raise their right hands to be sworn. The testator is not introduced to the witnesses, asked to confirm that the document is his or her will, or request the witnesses to act as witnesses. If a notary is actually conducting the will-signing, the testator and witnesses may not be actually all gathered together at one time. The best references for a proper will execution ceremony are Texas Tech University School of Law Professor Gerry W. Beyer’s The Will Execution Ceremony8 and Beyer’s How to Conduct a Modern Texas Will Execution .9 Consider recasting the self-proving affidavit in Tex. Est. Code § 251.104 as a numbered sub-paragraphed affidavit, making clear what each of the participants has stated, attested, or sworn to. If using the “one-step” ceremony,10 triple-check your language. Do not leave any signature lines blank. A Google consumer survey taken in June 2016 reported that 63 percent of Americans had not written a will. Of the 37 percent who did have a will, the wills of almost 72 percent of them were not up-to-date.11 Having overcome the reticence in initially making a will, a client needs to be coaxed to keep his or her will current. Sidebar Note: Statutory Requirements for a Texas Will (1) In writing (oral wills ceased to be acceptable after September 1, 2007); (2) Signed by; (A) The testator in person; or (B) Another person on behalf of the testator; and (i) In the testator’s presence; and (ii) Under the testator’s direction; and (3) Attested by two or more credible witnesses who are at least 14 years of age and who subscribe their names to the will in their own handwriting in the testator’s presence.12 (4) Exceptions: (A) oral wills made before September 1, 2007;13 (B) holographic wills;14 and (C) wills properly executed under the laws of a state or foreign country.15 Notes 1) Tex. Est. Code § 255.451. 2) Alexander v. Botsford, 439 S.W. 2d at 416-17 (Tex. Civ. App.—Dallas 1969, writ ref’d n.r.e.). 3) Tex. Fin. Code § 341.502. 4) See www.guidestar.org or bridge-registry.org (Basic Registry of Identified Global Entities). 5) Letter from Mark Twain to Walter Bessant (February 1898). 6) Final Accounting in the Estate of A. B., 1 Tucker 248 (N.Y. Surr. 1866). 7) Tex. Est. Code §§ 251.104, 251.1045. 8) Gerry W. Beyer, The Will Execution Ceremony, The Website of Professor Gerry W. Beyer, http://www.professorbeyer.com/Archive/new_site/Articles/Will_Ceremony.html (last accessed November 30, 2017). 9) Gerry W. Beyer, How to Conduct a Modern Texas Will Execution, https://papers.ssrn.com/ sol3/papers.cfm?abstract_id=2087884 (last revised October 21, 2015). 10) Tex. Est. Code § 251.1045. 11) Are there even fewer Americans without Wills?, U.S. Legal Wills Blog, https://www.uslegal wills.com/blog/americans-without-wills/ (last accessed November 30, 2017). 12) Tex. Est. Code § 251.051. 13) Acts of 2007, 80th Leg., ch. 1170, §§ 5.05, 5.06. 14) Tex. Est. Code § 251.052. 15) Tex. Est. Code § 251.053. HON. STEVE M. KING has been judge of Tarrant County Probate Court One since 1994. He researches, writes, and speaks on probate law and Texas frontier history.
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