Administration of Wills, Trusts and Estates, Fourth...

Administration of Wills, Trusts

and Estates, Fourth Edition

GORDON BROWN & SCOTT MYERS

A u s t r a l i a • B r a z i l • J a p a n • K o r e a • M e x i c o • S i n g a p o r e • S p a i n • U n i t e d K i n g d o m • U n i t e d S t a t e s

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Administration of Wills, Trusts and Estates,Fourth EditionGordon Brown, Scott Myers

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Structure of aModel Will

n CHAPTER OUTLINE

§ 6.1 Guidelines for Drafting a Will

§ 6.2 Introductory Paragraphs

§ 6.3 Main Body

§ 6.4 Fiduciary and Tax Provisions

§ 6.5 Ending Paragraphs

§ 6.6 Letters of Instruction

n CHAPTER OUTCOMES

• Discuss the guidelines for drafting a will.

• Name and identify the introductory paragraphs of a will.

• Describe the paragraphs that are found in the main body of a will.

• Discuss the fiduciary and tax provisions of a will.

• Name and describe the ending paragraphs of a will.

• Explain letters of instruction.

n JOB COMPETENCIES

• Be able to prepare an initial draft of a will under the supervision of anattorney.

• Be able to assist the attorney in gathering information and drafting a letter ofinstruction that accompanies a will.

144

C H A P T E R6

“What’s this?”

LAST WORDS OF LEONARD

BERNSTEIN (1918–1990)


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A DAY AT THE OFFICE . . .

Angela Clark introduced herself to Jack Russell, who sat nervously in the waitingroom in the office of Dillon & Harvey. Angela apologized for Mr. Dillon’s absence, sayingthat he had been held up in court but should return shortly. She explained that shewould begin taking down information that Attorney Dillon would need in drafting a will.Angela ushered Mr. Russell into her office.

After making Mr. Russell feel comfortable by talking with him about how everyonepostpones making a will, Angela asked, “May I have your full name?”

“Everybody calls me Jack, but my real name is John. Actually, John is my middlename. My full name is Edward John Russell. I never use Edward, though, except onformal papers, because that was my father’s first name. Sometimes I go by E. JohnRussell, sometimes just John Russell, but my friends call me Jack.”

“Do you ever use the name Edward J. Russell?” Angela asked.“Maybe on a few stock certificates, but that’s about all.”“What is your address?”“Well, I live six months in Fort Myers, Florida, and six months on the Jersey shore.

Which address do you want?”“Why don’t you give me both addresses, just to be sure.” Angela wrote down the

Florida and New Jersey addresses.“I love warm weather, and I love the beach! In fact, I’ve never told anybody this, but

I want to be cremated and have my ashes dropped in the sea at one of my favoritebeaches. And I want that to be in my will. My wife won’t like it, though. She’s already gota spot picked out for both of us in a cemetery where she grew up in Paramus, NewJersey, but I don’t want to be buried there.”

“Okay, I’ll make a note of that.”“And another thing, while I think of it, I want two copies made of my will—one to

keep in Florida and one to keep at the shore. I’ll sign both of them. That way there’ll bea will nearby wherever I die.”

At that moment, Attorney Dillon arrives and joins the conference that Angela ishaving with Mr. Russell.

Queries:

1. What further questions might Angela Clark ask Jack Russell to determine hisdomicile?

2. What might Angela Clark tell Jack Russell about his desire to be cremated?3. How should Angela Clark respond to Mr. Russell’s request to sign two copies

of his will?

STRUCTURE OF A MODEL WILL 145


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§ 6.1 GUIDELINES FOR DRAFTING A WILL

Before the actual drafting of a will can take place, the attorney must meetwith the client and discuss the client’s wishes. The attorney asks the client manypersonal questions and takes down vital information about the client’s affairs.Sometimes, the paralegal will be called in to assist in this process. Informationthat should be obtained from the client and matters that should be consideredare found in the checklist in Appendix A. Preparation of the will should befacilitated by having the client prepare a list of assets and debts before coming tothe office for the first time. Copies of deeds, mortgages, bank statements, andother financial materials should be brought by the client to the initial interview.Homework is always beneficial.

Paralegals must be especially careful to avoid the unethical practice of law,both when interviewing clients and when drafting documents. At the clientinterview, the paralegal should be introduced to the client as a “legal assistant” or“paralegal” who is working under the supervision of an attorney. Anything theclient says during the interview must be kept confidential. The paralegal maynever give legal advice to a client, and all documents prepared by the paralegalmust be reviewed and approved by the supervising attorney.

Wills and trusts are usually drafted with the aid of a computer. Software thatthe firm has developed over the years, as well as software that has been purchasedfrom specialists, is often tailored to fit the particular situation at hand. Eachprovision in an instrument must be carefully considered to ensure its relevanceand accuracy in the present. Paralegals must be computer literate and able to

CHAPTER 6146

BOLD BUT BLAND

Theodore Roosevelt, America’s first “cowboy” president, was a

bold and vigorous figure, the former head of the Rough Riders

who fought in the Spanish-American War. Roosevelt left a

strikingly dull will, however. Earlier presidents had written

testaments that revealed personal beliefs, feelings, and senti-

ments. In contrast, Roosevelt’s more “modern” will reveals little

of the person, but focuses on the legal terminology necessary to prevent lawsuits. The terms

issue and testator now appear; and beginning with Roosevelt, a president’s will is no longer

“signed” but “subscribed, sealed, published, acknowledged, and declared by the Testator.”

His will was drafted in 1912 and penned by a scrivener before the widespread use of

typewriters in the law office (see Appendix B).

THEODORE ROOSEVELT


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create documents when called upon to do so. In addition, all wills and otherdocuments must be carefully checked and proofread before being reviewed bythe attorney and signed by the client.

The following guidelines can be helpful when drafting a will:

1. A carefully drawn will must be tailored to the individual and personalneeds of the testator.

2. Provisions in a will that meet the needs of one testator are ofteninappropriate and sometimes dangerous for use in another testator’s will.

3. Generic forms that meet the laws of one state are not always appropriateunder the laws of other states.

4. A carefully drawn will minimizes death taxes to the fullest extent. Forthis reason, detailed information about the testator’s family, assets,liabilities, business, and personal affairs must be obtained and examinedby an attorney skilled in estate tax law.

5. As state laws and federal tax laws change, wills drawn under earlier lawsmust be reevaluated.

6. Because circumstances change in people’s lives, testators are welladvised to review their wills at least every five years or so to determinewhether changes need to be made.

There is no required form for a valid will other than the placement of thesignature in some states. Traditionally, however, carefully drawn wills follow auniform pattern containing certain common elements. The elements of a willinclude: (1) opening paragraphs, (2) the main body, (3) fiduciary and taxprovisions, and (4) ending paragraphs. See Exhibit 6–1.

§ 6.2 INTRODUCTORY PARAGRAPHS

The introductory paragraphs of a will often include the exordium clause,directions for funeral arrangements, and instructions to pay debts.

Exordium Clause

The opening paragraph of a will is called the exordium clause or thepublication clause. Its purposes are: (1) to identify the testator, (2) to state thetestator’s domicile or residence, (3) to declare the instrument to be the testator’slast will, and (4) to revoke all prior wills and codicils made by the testator.


n exordium clause

The introductory clause of

a will, stating that it is a

valid will, etc. Also known

as a publication clause.


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CHAPTER 6148

EXHIBIT 6 –1a Sample Will with Clauses Defined


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EXHIBIT 6 –1b Sample Will with Clauses Defined


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Example

Exordium Clause

20 AMJUR LF WI § 266:254

I, [name], residing at [address], County, [state], do hereby make, publish, and declare this to be

my last will, hereby revoking all former wills and codicils by me at any prior time made.

Identification of TestatorWhen naming the testator in a will, it is important to include all names that

the testator uses in the ownership of all types of property, including realproperty, personal property, securities, and bank accounts. This is often done bywriting the words “also known as ...” after the testator’s name. In the interviewingprocess, the paralegal may need to jog the client’s memory so that all variationsof names used by the client will be recorded. Failure to list all names used by thetestator can cause confusion and lead to the need to obtain court authorizationto collect or transfer assets. This process can be expensive and can cause delays insettling the estate. Names used in prior marriages, and the maiden name of awoman who elects to use her husband’s family name should be noted.

CHAPTER 6150

CASE STUDY Hoffman v. Hoffman

18 N.E.2d (ILL)

FACTS: Mary Hoffman died on April 26, 1937. She had written a holographic willeight days before her death. The exordium clause of the will contained herhandwritten name, but the will was not signed at the end. Illinois statuteat the time required that wills be signed. The document was signed by twowitnesses, and the deceased had referred to the document as her will.

LEGAL ISSUE: Was the written name in the exordium clause a signature as required bythe Wills Statute in Illinois?

COURT DECISION: No.

REASON: The decisive question here is the whether the deceased intended for hername in the exordium clause to be her signature. The testators name in theexordium clause is to identify the testator, not to serve as the requiredsignature, and, barring a preponderance of evidence, the name in theexordium clause is solely descriptive. Here, no such evidence exists.


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Domicile of TestatorThe testator’s domicile establishes the court in which the estate will be

settled. The probate court in the place where the testator was domiciled at thetime of death has primary jurisdiction to administer the decedent’s estate. One’sdomicile is one’s principal place of abode; it is the place to which one intends toreturn whenever one is absent. A person can have several residences, but onlyone domicile at any particular time. Once a domicile is established, it continuesuntil a new one is actually acquired. To effect a change of domicile, there mustbe an actual abandonment of the first domicile, coupled with an intent not toreturn to it. In addition, physical presence must be established in the other placewith the intention of making the last-acquired residence one’s permanent home.Such acts as registering to vote and opening a bank account in the new locationare evidence of the establishment of a new domicile. In some states, such asFlorida, people may file a “Declaration of Domicile” with a government office toestablish domicile. The Elson case clarifies these distinctions concerning adomicile.


CASE STUDY In Re Estate of Elson

458 N.E.2d 637 (IL)

FACTS: Natalie Elson studied recreation and equine sciences at Southern IllinoisUniversity. She completed an equestrian internship, taught horsebackriding to handicapped children, and trained horses in Illinois. After livingher entire life in Illinois, she moved to Pennsylvania to study dressage andto train for the Olympic games. She took her horse and most of herbelongings with her, closed out her bank accounts, and opened newaccounts in banks near her new residence. Five days later, she died in anautomobile accident at the age of 27. In an unmailed letter she hadpenned the day before her death, Natalie wrote that she had “moved toPennsylvania.”

LEGAL ISSUE: May a new domicile be established by residing five days in one state afterliving one’s entire life in a different state?

COURT DECISION: Yes.

REASON: The question of domicile is largely one of intention. In this case, there issufficient evidence to establish that Natalie intended to abandon herIllinois domicile permanently and acquire a new domicile in Pennsylvania.Natalie had changed the focus of her life in a permanent manner fromIllinois to Pennsylvania in pursuit of her equestrian career.


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When a will is made in a place other than the testator’s domicile, theexordium clause of the will should state “presently residing in” rather than “of” acertain place. This will help to clarify the fact that the testator is domiciled inanother place and may prevent litigation when the will is probated.

The question of domicile is an important tax issue in some cases. This isespecially true when people own property in two states, one with higher taxesand one with lower taxes. The state with the higher taxes claims the person isdomiciled there and seeks to collect the tax. Here are some suggestions for aperson who moves from a northern state to Florida to establish proof of theFlorida domicile:

• Sell your house up north, and buy one of equal or greater value inFlorida.

• Move your children to schools there.

• Change your car registration and driver’s license, and change youraddress on other forms of identification, including your passport.

• Join a church or synagogue in Florida. Quit your clubs up north, orchange to an out-of-state membership.

• Close your northern bank accounts, and open ones in Florida.

• Buy a burial plot in Florida.

• Change the addresses on all credit cards, and other bills, and make allbig consumer purchases in your new state.

• Execute all legal documents, including wills and trusts, in Florida.

• File your federal income tax from there.

• Spend your holidays in your new state. Use your new address on allcorrespondence.

• Find doctors, dentists, lawyers, and accountants in Florida.

• File a “Declaration of Domicile,” and apply for homestead exemption inFlorida.

• Spend at least six months each year in Florida. Some states use thenumber of days spent in the state as presumption of domicile.

Revocation of Earlier WillsOne way to revoke a will is to make a new will. In some states, for a revocation

to be effective, it is necessary to mention in the new will that it revokes the oldone. In other states, a later will revokes an earlier one even though nothing ismentioned in the new will about revocation. By stating in a will that it revokes allprior wills, there can be no questions about the testator’s intent when wills withdifferent dates are found after the testator’s death, so always state in the new willthat previous wills are revoked.

CHAPTER 6152


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In some states, the subsequent marriage of a person who has made a willrevokes the will unless the will declares that it is made in contemplation ofmarriage to a particular person (see Exhibit 5–7 in Chapter 5). This sentencemay be added to the exordium clause to make such a declaration: “I declare thatI am contemplating marriage to [name] and that I have made provision in thiswill for said [name] if my contemplated marriage to [him or her] isconsummated.”

Funeral Arrangements

It is not always advisable to include funeral and burial arrangements orcremation instructions in a will. This is because such matters must be taken careof immediately, and the will may not be found until later. Courts in some statesdo not treat the testator’s wishes regarding funeral and burial arrangements asbinding, deferring instead to the wishes of the surviving spouse or next of kin.Nevertheless, clients often insist that their preferences concerning funeral,burial, or cremation be placed in their wills. Usually a brief statement regardingtheir wishes is sufficient. These statements have no legal impact, but some client’sfind them comforting.

Example

Funeral and Burial Directions

20A AMJUR LF WI § 266:371 and § 266:377

I direct that my funeral be held at [address], County, [state], [that it be conducted according to

the rites of the (church)], and that my remains be buried in [the family plot or my lot] in the

[cemetery] at [address], County, [state].

CremationI direct that on my death my remains be cremated, and that the ashes be placed in an urn with my

name, my date of birth, which is , and the date of my death inscribed on the urn, and that the urn

be placed in the grave of or deposited in the mausoleum in the (cemetery), at (address), County,

(state) or (specify other disposition of ashes).

Some people find it desirable to make their funeral arrangements in advanceand to pay for the arrangements in advance as well (see Exhibit 6–2 on page155). Funeral directors often agree to a preestablished price for conducting afuneral, even though the date of death is unknown; the payment for the funeralis held in trust until the time for the funeral arrives. If older clients can bepersuaded to make funeral arrangements in advance, the remaining relatives willbe spared this added burden while grieving the loss of their loved one.



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Example

Funeral Directions

8B AMJUR LF FUN D § 127:9

I request that my personal representative use the services of [funeral home], as I have contacted

them regarding my burial arrangements. I have outlined what services I desire with that funeral

home. The cost of my burial has been prepaid. If the amount paid to [funeral home] prior to my

death is not sufficient, the remainder of the cost of my funeral and burial shall be paid by my

estate.

Instructions to Pay Debts

Because the executor is required by law to pay the debts of the decedent, it isnot necessary to put a clause in the will instructing the executor to do so. Anyinstructions to pay debts should be used with caution. Such instructions mightrequire the payment of otherwise uncollectible debts (such as debts that wereextinguished by bankruptcy or a statute of limitations), as well as the payment ofmortgages on the decedent’s real property. Without such a clause, real propertywill pass to the devisees subject to any existing mortgages on the property. Withsuch a clause, the executor might have to pay off existing mortgages from otherassets of the estate so that the real property will pass to the devisees free and clearof all debt.

CHAPTER 6154

NOVELTY BY CHARLES DICKENS

Charles Dickens, the famous author, wanted little fanfare when he

died. In his will, he was specific and forceful: “I emphatically direct that

I be buried in an inexpensive, unostentatious, and strictly private

manner.” He further demanded that “no public announcement be

made of the time or place of my burial; that at the utmost not more

than three plain mourning coaches be employed.” He also ordered

that mourners “wear no scarf, cloak, black bow, long hatband, or other such revolting

absurdity.” All of Dickens’s wishes were disregarded: he was eulogized publicly and

profusely, with a long cortege, and by a massive audience dressed in the full trappings of

mourning.

CHARLES DICKENS


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EXHIBIT 6 –2a Prearranged Funeral Contract [AMJUR LF FUN D § 127:6]


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CHAPTER 6156

EXHIBIT 6 –2b Prearranged Funeral Contract [AMJUR LF FUN D § 127:6]


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EXHIBIT 6 –2c Prearranged Funeral Contract [AMJUR LF FUN D § 127:6]


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Example

Instructions to Pay Debts

20A AMJUR LF WI § 266:391

[Use with caution]

I direct that all of my just debts, including the expenses of my last illness, funeral and burial

expenses, and expenses of the probate of my will and administration of my estate be paid as soon

as possible after this will has been admitted to probate.

§ 6.3 MAIN BODY

The main body of a will consists of the dispositive provisions, the residuaryclause, and sometimes other miscellaneous clauses. These are shown in summaryin Table 6–1 at the end of this section.

Dispositive Provisions

The dispositive provisions of a will are the provisions that dispose of thetestator’s property. These provisions vary considerably, as they are drafted tomeet the needs of the individual client. Gifts under a will may be specific,general, or demonstrative.

Specific LegaciesIn states that have not adopted the Uniform Probate Code (UPC), a specific

legacy (often called a specific bequest) is a gift in a will of an identifiable item ofproperty (other than real estate), such as a car, a diamond ring, a bank account,or a stock certificate. In states that have adopted the UPC, a legacy or bequest isreferred to as a devise.

Example

Specific Legacies

I give and bequeath the following items of personal property if owned by me at the time of my

death to the individuals listed below:

(a) To my daughter, [name], if she shall survive me, the portrait of my husband’s grandmother.

(b) To my daughter, [name], if she shall survive me, my diamond-ruby-sapphire ring, my Korean

satsuma vase, and all pieces of my Friendly Village china.

(c) To my daughter, [name], if she shall survive me, my blue-and-gold vase, and my opal-and-

diamond brooch.

CHAPTER 6158

n disposit ive

provisions

Provisions that clearly

settle the disposition of

the testator’s property.

n specif ic legacy

Exact. A gift in a will of a

precisely identifiable

object such as “the family

Bible.”


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(d) To my son, [name], if he shall survive me, my carved marble-top table and my large Chinese

platter.

I may leave a memorandum stating my wishes with respect to the disposition of other articles of

tangible personal property, but such memorandum will be simply an expression of my wishes and

shall not create any trust or obligation, nor shall it be offered for probate as a part of this will.

One advantage of a specific legacy is that it is used for the payment of debtsonly after the general legacies (money from the general assets of the estate) havebeen depleted. On the other hand, a specific legacy is subject to ademption(extinction; not being owned). If the testator does not own the item at the timeof death, the person named to receive it receives nothing. A common type ofspecific legacy is a gift of all of one’s tangible personal property (personalproperty that can be touched).

Example

Bequest of All Tangible Personal Property

I give to my [relationship], [name], all articles of tangible personal property which I own at the

time of my death and not otherwise specifically bequeathed by this will, including but not limited

to, personal effects, household goods, furniture and furnishings, automobiles, clothing, and

jewelry, but not including currency, and securities. If my said [relationship] does not survive me, I

give and bequeath the aforesaid property to my [relationship], [name].

Specific DevisesA gift of real property in a will is known as a devise. A specific devise is a gift in

a will of an identifiable parcel of real property. The term includes personalproperty in states that have adopted the UPC.

When a person dies owning real property solely, or with others as a tenant incommon, title to the decedent’s share passes to his or her heirs at the moment ofdeath. This contrasts with title to personal property, which passes to the personalrepresentative (executor or administrator), who then distributes it to the heirsafter paying the estate’s debts, taxes, and expenses. Real property can, however,be taken from the heirs and sold by the executor, under a power-of-sale clause inthe will or under a license to sell from the court, to pay debts of the estate. Unlessa will provides otherwise, real property is usually the last asset to be used for thepayment of estate debts.


n ademption

1. Disposing of something

left in a will before death,

with the effect that the

person it was left to does

not get it. 2. The gift,

before death, of something

left in a will to a person

who was left it.

n t ang i b l e pe r sona l

property

Personal property that is

physically real, capable of

being touched.

n specif ic devise

A gift of a particular, exact

piece(s) of real estate

(land).

n personal

representative

A general term for the

executor or administrator

of a dead person’s

property.


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Example

Devise of Real Property

To my [relationship], [name], I give my real property consisting of a residence and lot located at

[street address], City of , County of , State of , and more particularly described as follows: [insert

full description], if [he or she] survives me; but if [he or she] fails to so survive me, I give the

above-described property to [relationship], [name], if [he or she] survives me.

General LegacyA general legacy is a gift of money, or other fungible item, from the general

assets of the estate. Gifts given under a residuary clause in a will (discussed laterin this section) are also considered to be general. A gift of money in a will, inaddition to being a general legacy, is known as a pecuniary legacy (bequest).General bequests, in most states, need not be all or nothing experiences. Ifinsufficient funds exist to satisfy all the general bequests, then the generalbequests will be proportionate. That is, if Harry is bequeathed $2,000 and Sharonis bequeathed $1,000 in a will, and there is only $1,500 in the estate, then Harrywill receive $1,000 and Sharon $500.

Example

Pecuniary Bequest

I give to [name], of [address], City of , County of , State of , the sum of Dollars ($), if [he or she]

survives me.

Demonstrative LegacyA demonstrative legacy is a gift of a specific sum of money with a direction

that it be paid out of a particular fund. It differs from a specific legacy in that thegift is not taken away, that is, adeemed, if there is no money in the fund. Instead,the general assets of the estate are used to fund the gift. Thus, a demonstrativelegacy is a special kind of general legacy.

Example

Demonstrative Legacy

I give to [name], of [address], City of , County of , State of , if [he or she] survives me, the sum of

Dollars ($), to be paid out of the funds on deposit in my savings account No. , in the [name of

bank], at [address], City of , County of , State of .

CHAPTER 6160

n general legacy

A gift of money from the

general assets of an estate.

n p e c u n i a r y l e g a c y

(bequest)

A monetary legacy; a

bequest of money.

n demonstrative

legacy

A gift of a specific sum of

money in a will that is to

be paid out of a particular

fund where, if the fund has

no money, the gift

becomes a general legacy

on an equal footing with

other general legacies.


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Residuary Clause

A will should be written so that it allocates all of the testator’s property. To dothis, a will must contain a residuary clause. The residuary clause distributes all ofthe testator’s property that is not disposed of in other clauses of the will. It is acrucial clause because it acts as a safety net, catching any property that fallsthrough the cracks or that is inadvertently omitted from the will. The Jones casedemonstrates the importance of including a residuary clause.


n residuary clause

Clause in a will that

disposes of all items not

specifically given away (the

“leftovers”).

CASE STUDY Matter of Estate of Jones

341 N.E.2d 565 (NY)

FACTS: The subject matter of this litigation was a collection of antique, rare, andoriginal books left to the decedent by her father. The lower-court judgeheld that the rare book collection passed under Article Eleventh of the will.The appellant argues that the collection should pass under ArticleFourteenth. The two articles follow:

ELEVENTH. I give and bequeath all my personal property, consistingof furniture, carpets, curtains, china, linen, miscellaneous prints andpictures, antique chandeliers, Louis XVI mantel, mirror and firebackinstalled in drawing room in my residence, and miscellaneous bric-a-brac to said Harriet C. Weed to be held and enjoyed by her duringthe period of her natural life. ... Upon the death of said Harriet C.Weed I give and bequeath to the Minneapolis Institute of Arts ... .

FOURTEENTH. All the rest, residue and remainder of my estate,both real and personal and wheresoever situate, not hereinotherwise disposed of, I give, devise and bequeath to said Harriet C.Weed.

LEGAL ISSUE: Does a bequest of all of one’s personal property followed by the words“consisting of” limit the bequest to only the items that follow?

COURT DECISION: Yes.

REASON: Nowhere in the detailed provisions of Article Eleventh is there to be foundany reference to books or to the decedent’s library. Nor is there anygeneral language susceptible of the interpretation that Article Eleventhwas intended as a catch-all paragraph designed to blanket in all tangiblepersonal property not otherwise specifically described. The opening wordsof the paragraph, “all my personal property,” standing alone, would havesupported such an interpretation, but these words are then immediatelylimited by the particularizing phrase, “consisting of,” followed by thedetailed listing. The diction here was not, for instance, “all my personalproperty, including, etc.,” in which event it could have been argued thatthe list of specified articles was not intended as an exclusive schedule.


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Some situations in which a gift would pass according to the instructions in aresiduary clause include:

1. When a gift is void (e.g., in some states when a gift is given to a witness tothe will).

2. When a gift is revoked (e.g., when crossed out by the testator).

3. When a gift lapses (e.g., when the legatee or devisee dies before thetestator), unless an antilapse statute (discussed in Chapter 7) is available.

4. Without a residuary clause in such situations, the failed gift would passaccording to the law of intestacy, as explained in Chapter 4. Property(real and personal) would also pass according to the law of intestacy if aresiduary clause is not included in a will. The Flannery case illustrates aproblem that can arise when a residuary clause is omitted from a will.

CHAPTER 6162

CASE STUDY Flannery v. McNamara , Administrator

738 N.E.2d 739 (MA)

FACTS: William H. White died testate, leaving everything to his wife, Katherine. Hiswill stated, in part, “I give, devise, and bequeath all of the property ofwhich I die possessed real, personal, and mixed and wheresoever locatedto my beloved wife, Katherine M. White.”

The will did not name a contingent beneficiary, and it had no residuaryclause. William’s wife, Katherine, had passed away two years beforeWilliam. The couple had no children. In addition to William, Katherine wassurvived by her two sisters, the Flannerys. The lower court held thatWilliam’s property passed by intestacy to his first cousins once removed.

On appeal, the Flannery sisters argued that they should inherit William’sestate. They pointed out that they had a close relationship with William,that he was buried in the Flannerys’ family plot, and that he told theFlannerys that his residence and its contents “will be [theirs] some day.”The sisters contended that the portion of the will that reads, “all to mybeloved wife, Katherine M. White,” should be either construed or reformedto read, “all to my beloved wife, Katherine M. White, if she survives me,but if not, then to her sisters who survive me.”

LEGAL ISSUE: Is extrinsic evidence admissible to construe an unambiguous will, or cansuch a will be reformed?

COURT DECISION: No to both questions.

(continues)


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No particular language is necessary for a residuary clause in a will. The clausemay begin, “I give, devise, and bequeath the rest, residue, and remainder of myestate to ...” or it may simply say, “I give the residue of my estate to ... .” Similarvariations are acceptable as well. As a matter of practice, you should never draft awill without a residuary clause.

Example

Residuary Clause

I direct that all the rest, residue, and remainder of my estate, real, personal, and mixed, of

whatever kind and wherever situated, of which I may die seized and possessed, or in which I may

have any interest or to which I may be entitled or over which I may have any power of

appointment, including any lapsed or deemed legacies (herein called my “residuary estate”), shall

be divided into [number] equal shares, to be disposed of as follows: ... .

Miscellaneous Clauses

Wills are drawn to meet the particular needs of individuals, so there is no limit tothe variety of clauses that can be included in a will. Also, new clauses are continuallywritten to keep up with changes in state inheritance laws and federal tax laws. A fewmiscellaneous clauses that are sometimes found in wills are discussed here.

Adopted ChildrenAs was discussed in Chapter 4, modern statutes generally treat adopted

children as strangers to their former relatives and consider adopting parents asthough they were legitimate blood relatives to their adopted children. However,defining the terms child or children in a will helps to avoid any possible confusion.


REASON: Extrinsic evidence is not admissible to explain an unambiguous will. Inaddition, under Massachusetts law, courts have no power to reform wills.Language cannot be modified to meet unforeseen changes in conditions.The written instrument is the final and unalterable expression of thepurpose of the testator. The power of the court is limited to interpretationand construction. It cannot make a new will.

CASE STUDY Flannery v. McNamara , Administrator (continued)


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Example

Definition of Child


The word child or children, as used in this will, includes any child or children lawfully adopted by

me at any time before or after the execution of this will.

Community PropertyCommunity property is property (except a gift or inheritance) acquired by

either a husband or a wife during marriage. In community property states (seethe map in Exhibit 3–4), such property belongs to both spouses equally. Whenmaking a will in a community property state, it is often advisable to clearly statehow the testator would like to distribute his or her share of community property.

Example

Community Property


I declare that all of the property of my estate which is hereby bequeathed and devised is my one-

half interest in the community property of myself and my [wife or husband], [name].

DisinheritanceSome states have laws protecting certain heirs who are omitted from a will.

For example, children and certain grandchildren who can prove that they wereunintentionally disinherited by a parent may be able to inherit their intestateshare from that parent or grandparent. This subject is discussed in detail inChapter 7. When family members are intentionally disinherited, it isrecommended that an explicit declaration be made in the will reinforcing thetestator’s intention to disinherit those heirs who are not mentioned. A clause tothat effect is as follows.

Example

Disinheritance


I have, except as otherwise provided in this will, intentionally and with full knowledge, omitted to

provide for my heirs who may be living at the time of my death, including any person who may

become my heir by reason of marriage or otherwise after the date of the execution of this will.

CHAPTER 6164


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No-Contest ProvisionSometimes testators believe that one or more disgruntled relatives might

attempt to contest the provisions of the will. One way to address this possibility isto provide for such people in the will, and then to stipulate that anyone whocontests the will shall lose all interests he or she would otherwise have under thewill. A provision eliminating a will contestant from being a beneficiary under thewill is called a no-contest or in terrorem clause (in terror or warning).

Example

No-Contest Clause


Every heir, legatee, devisee, or beneficiary under this will [and the trusts herein created, or

intended to be created,] who shall contest in any court any provision of this instrument [except

as may be permitted by the provisions of (cite statute)] shall not be entitled to any devises,

legacies, or benefits under this will or any codicil to this will or any trust created by this will. Any

and all devises, legacies, and portions of the income or corpus of my estate, otherwise provided

to be paid to such person, shall lapse and shall be paid, distributed, and passed [in accordance

with Article hereof or as though such person had died prior to my death leaving no living lawful

descendants]. My executor [and trustee] herein named [is or are] specifically authorized to

defend at the expense of my estate any contest or attack of any nature upon this will or any

codicil to this will, or on any paragraph or provision hereof.

In states that have adopted the UPC, the no-contest provision set forth herewould be ineffective. Under the UPC, a provision in a will purporting to penalizeany interested person for contesting the will or instituting other proceedingsrelating to the estate is unenforceable if probable cause exists for institutingproceedings [UPC § 3–905]. You need to check whether your state allows orlimits in terrorem clauses.

Many people die wanting to leave money for the care of a beloved pet orpets. Money or property cannot be left to animals, but funds can be left to theperson who will care for the pet. The assets can be left as an outright gift, aconditional gift, or a trust.

Incorporation by ReferenceOccasionally it is desirable to refer in a will to another existing document

and to make the other document a part of the will itself. This is known asincorporation by reference and may be done only if the other document is inexistence at the time the will is executed.


n no-contest

(Latin) “In threat”; “in

terror”; “by threat.” An in

terrorem clause in a will

“threatens” a beneficiary

with revocation of that

person’s bequest if he or

she contests the will. Also

known as an in terrorem

clause.

n i n c o r p o r a t i o n b y

reference

Making a document a part

of something else by mere

mention. For example, if

document A says that

“document B is

incorporated by

reference,” then

document B becomes a

part of document A even

though the words in

document B are not

rewritten into

document A.


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Example

Incorporation by Reference


I hereby declare that it is my intention to, and I do hereby, incorporate by reference into this will

that certain document dated , which is now in existence, located at [address], County, [state], and

described as follows: .

§ 6.4 FIDUCIARY AND TAX PROVISIONS

Wills commonly have provisions naming fiduciaries, giving them specialpowers, and allowing them to serve without furnishing a surety on their officialbond. In addition, many wills contain a clause that establishes the source forpayment of death taxes.

CHAPTER 6166

TABLE 6–1 Principal Clauses in a Will

Clause Function

Exordium Clause To identify the testator, state the domicile, declare theinstrument to be a will, and revoke prior wills

Funeral Directions To specify the funeral and burial conditions

Instructions to PayDebts

To instruct the executor to pay debts (use cautiously)

Dispositive Provisions To dispose of specific property

Residuary Clause To distribute all property not otherwise disposed of

Appointment ofFiduciaries

To appoint the executor, guardian, and trustee and theiralternates

Powers of Fiduciaries To provide special powers to the fiduciaries

No Surety on Bond To avoid a surety on the bond

Tax Clauses To establish the source for payment of death taxes

Testimonium Clause To establish the end of the will, introduce the testator’ssignature, and fix the date of execution of the instrument

Attestation Clause To introduce the witnesses’ signatures and insurecompliance with the law of execution of wills

Self-Proof Clause To prove the will without testimony


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Appointment of Fiduciaries

Paralegals will have many opportunities to deal with fiduciaries in the courseof their work, because the nature of a fiduciary’s responsibility often requiresworking with a law firm. Fiduciaries are persons appointed to oversee propertythat belongs to others and who, therefore, serve in a position of trust. In the caseof a will, fiduciaries include executors, guardians, and trustees.

ExecutorAn important advantage of having a will is that the testator is allowed to

select the person who will eventually settle the testator’s estate. An executor(male) or an executrix (female) is a person who is named in a will to serve as thepersonal representative of the estate. It is common practice also to name analternate executor to serve in the event the person named as executor is unableto serve in that capacity. The principal task of an executor is to gather the assets,pay the debts (including taxes and expenses of administration), and distributethe remainder according to the terms of the will.

Example

Nomination of Executor and Alternate

I nominate and appoint my [relationship], [name], as executor of this will. If he [or she] shall fail

to qualify or cease to serve, I nominate and appoint my [relationship], [name], to serve as

executor in [his or her] place.

A testator should consider the items on the following list when appointing anexecutor in a will [8 AMJUR LF EXEC § 104:6]:

• Individual or corporate executor

• Willingness of appointee to serve

• Competency of appointee

• Familiarity of appointee with estate

• Residency of appointee

• Compensation

• Bond requirement

• Compatibility of appointee with heirs


n f iduciaries

A person who manages

money or property for

another person and in

whom that other person

has a right to place great

trust.

n executor

A person selected by a

person making a will to

administer the will and to

hand out the property

after the person making

the will dies.

n executrix

A female executor.


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GuardianAnother advantage of having a will is that parents can name one or more

guardians for their children in the event they die while their children are minors.There are two kinds of guardians: a guardian of the person and a guardian of theproperty. A guardian of the person has the care and custody of the child. This isgiven as a natural right to parents unless they are found to be unfit. In contrast, aguardian of the property has the responsibility of caring for the child’s propertyuntil the child becomes an adult. Such a guardianship is not a natural right of aparent and may be given by a court to someone other than a parent. Language ina will naming a surviving spouse as guardian of the person and property of minorchildren, however, is usually followed by the court.

Example

Appointment of Guardian

I appoint my spouse, [name], as guardian of the person and property of my minor children. If for any

reason my spouse fails to qualify or ceases to serve as guardian of the person of any minor child of

mine, I appoint my friend [or other relationship], [name], as such guardian in my spouse’s place. If for

any reason my spouse fails to qualify or ceases to serve as guardian of the property of any minor child

of mine, I appoint my friend [or other relationship], [name], as such guardian in my spouse’s place. No

guardian of the person or property appointed in this will need furnish any surety on any official bond.

TrusteeWhen a will contains a trust, the trust is known as a testamentary trust (see

Chapter 8). The will appoints one or more trustees to administer the trust andoften provides for the appointment of successor trustees in the event the first-named trustees are unable to serve. The subject matter of trusts is treated indepth in Chapters 8 and 9.

Example

Appointment of Trustee

I nominate and appoint [name] and [name] as trustees of all trusts created hereunder. If any

trustee is unwilling, unable, or ceases to serve as trustee, [name] shall serve as successor trustee,

and if the successor trustee or any other trustee is unwilling, unable, or ceases to serve as

trustee, [name] shall serve as successor trustee. If there is a vacancy in a trusteeship for which no

successor has been appointed under the preceding paragraph, the adult beneficiaries entitled to

receive a majority of the income may appoint in writing a successor trustee.

CHAPTER 6168


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Powers of Fiduciaries

The power of a fiduciary to act without court approval is somewhat limited.Unless the will provides otherwise, fiduciaries must seek court approval to dowhat is necessary for proper administration of the estate. The way to eliminatethe need for fiduciaries to seek court approval and thereby to reduceadministration costs is to include a powers clause in the will.

Example

Powers of Executor

My executor shall have full power of management and authority to sell, either at public or private

sale, or to exchange, lease, pledge, or mortgage, in such manner and on such terms as such

executor deems advisable, any or all property, real or personal, in my estate and to execute all

deeds, assignments, mortgages, leases, or other instruments necessary or proper for these

purposes; to compromise claims in favor of or against my estate on such terms as such executor

deems advisable; to retain any securities or other property owned by me at the time of my death,

although the same may not be considered a proper investment; to make distribution of property

in kind, and for such purposes to determine the value of such property; and generally to do any

and all such acts and things and execute any and all such written instruments with respect to such

property as if the absolute owner thereof.

No Surety on Bond

Executors are required to post a bond before they can be appointed. Bydoing so, they become personally liable up to the amount of the bond in theevent the estate is mishandled. In some states, unless the will provides otherwise,there must be a surety on the bond. A surety is either an insurance company orone or more individuals who stand behind the executor by agreeing to pay theamount of the bond in the event the executor becomes liable on the bond. Thecost of a surety can be saved by providing in the will that the executor be exemptfrom giving surety on his or her bond. When naming a spouse, sibling, or parentas a fiduciary, exempting the fiduciary from the additional cost will help preserveassets.

Example

No Surety on Bond

I direct that any executor be exempt from giving surety on his or her official bond. The word

executor shall include any administrator of this will.


n surety

A person or company that

insures or guarantees that

another person’s debt will

be paid by becoming liable

(responsible) for the debt

when it is made.


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Tax Provision

The purpose of the tax provision in a will is to establish the source forpayment of death taxes. The tax clause apportions the burden of federal andstate death taxes among the estate assets.

In some states, if a tax clause is not used, taxes imposed on the probateproperty are paid from the residuary estate and taxes imposed on thenonprobate property are paid from the nonprobate property. Thus, the moneyto pay the taxes on legacies and devises would come from the residuary clause,the money to pay the taxes on jointly owned property would come from the jointproperty, and the money to pay the taxes on life insurance would come from thelife insurance proceeds. A tax clause is included in a will when payment of estatetaxes from a different source is preferable.

When everything in an estate goes to the same person or equally to a groupof people, a direction to pay all death taxes from the residuary estate is usuallyappropriate. However, when items of vastly different value are given to differentpeople, or when there is jointly owned property, life insurance, a pension plan,or a trust, the residuary estate may be an inappropriate source from which to paydeath taxes.

Example

Tax Clause

All inheritance, estate, and other taxes in the nature of death taxes, whether state or federal, with

respect to any property passing under this Will shall be paid by my Executor out of the residue of

my estate, and, in addition, my Executor may in his or her discretion pay from my residue all or

any part of such taxes attributable to property not passing under this Will. My Executor shall

have full power and authority to pay, compromise, or settle any or all such taxes at any time

whether on present or future interests.

§ 6.5 ENDING PARAGRAPHS

The ending paragraphs of a will include the testimonium clause, theattestation clause, and the self-proof clause.

Testimonium Clause

The testimonium clause (sometimes called the signature clause) is the clausethat comes immediately before the testator’s signature. It is used to establish theend of the will, to introduce the testator’s signature, and to fix the date of

CHAPTER 6170

n testimonium clause

The part of a deed or

other document that

contains who signed and

when and where it was

signed.

n s ignature clause

The clause in a will that

falls immediately before

the testator’s signature.


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execution of the instrument. Some attorneys like to have the testator read thetestimonium clause out loud to the witnesses before signing it as a declarationthat the instrument being signed is the testator’s will.

Example

Testimonium Clause

In Witness Whereof, I, the undersigned [name of testator or testatrix], do hereby declare that I

willingly sign and execute this instrument as my last will, in the presence of each of the witnesses,

who also sign below, and that I execute it as my free and voluntary act for the purposes herein

expressed, this day of , 20.

Besides signing on the signature line below the testimonium clause, thetestator should either sign or initial all of the other pages of the will. Althoughnot a requirement, signing every page helps to prevent the substitution or loss ofpages that come before the testimonium clause.

Only the original of a will should be signed. A will should never be executed induplicate or triplicate. When more than one signed copy of a will is in existence,the court may require that all copies be produced for probate. If a copy cannot beproduced, it may raise a presumption that the testator destroyed the copy with theintention of revoking the will. In the opening “A day at the office ...” scenario, whatseemed convenient to the client, Mr. Russell—having a signed copy of his will atboth of his residences—could prove dangerously confusing.

Attestation Clause

The attestation clause is the clause that follows the testator’s signature andprecedes the witnesses’ signatures. The clause is not required, but is customary andhelps to ensure compliance with the law of executing a will. A will is usually executedproperly when the directions in the attestation clause are followed precisely.

After the testator has signed the will in the witnesses’ presence, it iscustomary to have one of the witnesses read the attestation clause aloud. Whenthis is done, the witnesses sign below the attestation clause and write their homeaddresses beside their signatures. Witnesses may have to be contacted after thetestator has died in order to prove the will. Neither the testator nor the witnessesshould leave the room until all witnesses have finished signing the will in thetestator’s and each other’s presence.


n attestation clause

A clause, usually at the end

of a document, that

witnesses the signing of

the document with a

signature of attestation.


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Example

Attestation Clause

We, the undersigned witnesses, each do hereby declare in the presence of the aforesaid testatrix

that the testatrix signed and executed this instrument as her last will in the presence of each of

us, that she signed it willingly, that each of us hereby signs this will as witness in the presence of

the testatrix, and that to the best of our knowledge the testatrix is eighteen (18) years of age or

over, of sound mind, and under no constraint or undue influence.

Self-Proof Clause

In many states, if all of the heirs at law of a decedent do not assent to theallowance of a will, the testimony (or sworn affidavit) of one of the witnesses isrequired for the will to be allowed. This condition sometimes creates problems:heirs at law cannot always be located; witnesses may have moved or died. Toalleviate these complications, some states have enacted a statute that allows a will tobe proved without testimony if it is self-proved by affidavits of the testator and thewitnesses made before an officer authorized to administer oaths (usually a notarypublic). The clause, located at the end of the will, is called a self-proof clause.

CHAPTER 6172

A PRESIDENTIAL NEATNIK

George Washington, a man obsessed with neatness and

meticulous detail, prepared his will without any legal assistance.

He penned his 15-page will on both sides of watermarked

parchment with strict adherence to a justified right margin. The

document looks almost computer produced: the lines are

precisely spaced and identical in length; dashes or curved

strokes fill any empty spaces; words at the end of lines are hyphenated improperly if

necessary to maintain the justified margin; each page is signed directly below the center of

the last line. No witnesses were necessary, because a handwritten testament without them

was legally binding in the 1790s in that state.

GEORGE WASHINGTON

n sel f-proof clause

A clause in a will

containing affidavits of the

testator and witnesses that

allow a will to be proved

without testimony.


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Example

Self-Proof Clause

I, [name], the testator, sign my name to this instrument this day of , 2, and being first duly sworn,

do hereby declare to the undersigned authority that I sign and execute this instrument as my last

will and that I sign it willingly (or willingly direct another to sign for me), that I execute it as my

free and voluntary act for the purposes therein expressed, and that I am eighteen (18) years of

age or older, of sound mind, and under no constraint or undue influence.

__________

Testator

We, , , the witnesses, sign our names to this instrument, being first duly sworn, and do hereby

declare to the undersigned authority that the testator signs and executes this instrument as his

last will and that he signs it willingly (or willingly directs another to sign for him), and that each of

us, in the presence and hearing of the testator, hereby signs this will as witness to the testator’s

signing, and that to the best of our knowledge the testator is eighteen (18) years of age or older,

of sound mind, and under no constraint or undue influence.

__________

Witness

__________

Witness

State of__________

County of__________

Subscribed, sworn to, and acknowledged before me by , the testator, subscribed and sworn to

before me by , and , witnesses, this day of , 2.

__________

Notary public

§ 6.6 LETTERS OF INSTRUCTION

It is often desirable for a person making a will to write a letter of instructionto the people left behind. A letter of instruction furnishes detailed informationabout the testator’s funeral arrangements, assets, location of importantdocuments, and the people to notify when the testator dies. At least threecopies of the letter should be made, each placed in a separate envelope marked“Letter of Instruction.” One copy should be given to the executor, anotherplaced with the will, and the third placed with the testator’s other importantpapers. A letter of instruction should generally contain the following information[20A AMJUR LF WI § 266:73]:


n letter of

instruction

A letter written by a

testator to accompany a

will, giving detailed

information that is not

contained in the will.


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1. Persons to be notified on testator’s death, with their addresses andtelephone numbers:

a. funeral home

b. relatives

c. employer

d. executor

e. lawyer

f. partners or business associates

g. other persons

2. Burial and funeral instructions:

a. cemetery plot location, deed number, and location of deed

b. facts needed by funeral director, such as testator’s full name,residence, marital status, name of spouse, date of birth, place ofbirth, father’s name and birthplace, mother’s maiden name, militaryservice, length of residence in the United States, length of residencein state, social security number, occupation, special wishes anddesires

c. words to be inscribed on gravestone

d. if cremation is desired, specification as to disposition of ashes

3. Location of all important legal and personal papers:

a. will

b. insurance policies

c. bank books, checkbooks, and certificates of deposits

d. bonds and stock certificates

e. Social Security and Medicare cards and papers

f. title and registration documents of automobiles

g. titles, deeds, and other relevant papers relating to real property

h. birth and baptismal certificates

i. marriage certificate

j. judgment of dissolution of marriage or divorce decree andseparation or settlement agreements

k. military records

l. naturalization papers or alien registration card

m. income tax returns

CHAPTER 6174


21764_08_ch06_p144-181.3d 5/6/2008 10:25 page 175

n. credit cards

o. mortgage and other documents relating to outstanding loans

p. bank statements and cancelled checks

q. important warranties, such as warranties for major appliances

r. important receipts, such as receipts for home improvements

s. other legal papers

4. Location of safe-deposit box, number, in whose name it is registered,location of key, and list of contents

5. Membership in any fraternal or mutual aid association that has as part ofits membership death benefits or insurance coverage, address andtelephone number of association, person to contact as to procedure forcollecting benefit, and location of certificate of membership orcertificate of insurance

6. List of life and accident insurance policies, with name and address ofcompany, policy number, amount of coverage, beneficiaries, name,address, and telephone number of insurance agent, and instructions tofile claim immediately

7. List of homeowner’s, fire, casualty, and other insurance policies,including name and address of company, policy number, amount ofcoverage, beneficiaries, and name, address, and telephone number ofinsurance agent

8. List of insurance policies insuring other members of family for whichtestator has been paying premiums, including name and address ofcompany, policy number, amount of coverage, beneficiaries, and name,address and telephone number of insurance agent

9. Social Security number, with instructions to call local Social Securityoffice to inform them of testator’s death, to ask for an appointment andwhat papers to bring, and instructions to file claim immediately

10. List of bank accounts, with name and address of bank, account number,name or names on the account, type of account, and any specialinstructions

11. List of all bonds, with their serial numbers, denominations, and namesin which they are registered

12. List of all shares of stock, with names of companies, number of shares, inwhose names they are issued, and name and address of stockbroker

13. List of pension or profit sharing plans, and the location of anydocuments relevant thereto

14. List of all credit cards, with the name and address of the issuer and cardnumber



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15. List of monetary obligations, including mortgages, with name andaddress of bank or other lender, account number, name appearing onloan documents, amount of loan, monthly payment, collateral, if any,and whether there was life insurance on loan, and if so, name andaddress of insurer, with instructions to notify and file claim immediately

16. List of all automobiles, with year, make, model, body type, number ofcylinders, color, and identification number

17. List and location of personal effects and other personal property withsentimental value, and names and addresses of persons to whom suchproperty should be given

18. Matters relating to house or condominium, including address, in whosename it is recorded, and legal description. Include a list of homeimprovements, with the date and cost. Include also a statement as toactual cost of the house, and expenses incurred in purchasing home

19. If renting, name and address of lessor, expiration date of lease, locationof lease agreement and receipts of payments

20. If veteran, instructions to notify nearest Veterans Administration officeof testator’s death and to ask what benefits are available

21. Other special instructions

SUMMARY

The common elements of a will include opening paragraphs, the main body,fiduciary and tax provisions, and ending paragraphs.

A carefully drawn will is tailored to an individual’s needs, minimizes deathtaxes, and follows specific state laws. In addition, it is kept up to date to reflectchanges in the law and changes in family circumstances.

When naming the testator in the exordium clause of a will, it is important touse all names that the testator uses in the ownership of all types of property. Theprobate court in the place where the testator was domiciled at the time of deathhas primary jurisdiction to administer the decedent’s estate. A later will generallyrevokes an earlier will unless the later will states otherwise. Including funeral andburial arrangements or cremation instructions in a will is not recommendedbecause such matters must be taken care of immediately, and the will may not befound or allowed by the court for several weeks. In addition, the courts in somestates do not treat as binding the testator’s wishes regarding funeral and burialarrangements. It might be dangerous to put a clause in a will instructing theexecutor to pay debts because it might require the payment of otherwiseuncollectible debts as well as the payment of mortgages on the decedent’s realproperty.

CHAPTER 6176


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Gifts under a will may be specific, general, or demonstrative. An advantage ofa specific legacy is that it is used up only after the general legacies have beendepleted for the payment of debts. However, a specific legacy is subject toademption. When people die owning real property solely, title passes to theirheirs at the moment of death; personal property passes to the personalrepresentative of the estate. The residuary clause is very important because it actsas a safety net, covering any property that is otherwise omitted from the will.

Wills often contain clauses that appoint executors, guardians, and trustees,and allow them to serve without furnishing a surety on their bond. Wills oftencontain clauses that establish the source for payment of death taxes. A powersclause in a will helps to reduce the cost of administration by eliminating the needfor the fiduciary to seek court approval when taking certain actions.

The testimonium clause falls immediately before the testator’s signature.Only the original of a will should be signed—it should never be executed induplicate or triplicate. The attestation clause precedes the witnesses’ signatures.A will is usually executed properly when the directions in the attestation clauseare followed precisely. In some states, a will may be proved without testimony if itcontains a self-proof clause.


n REVIEW QUESTIONS

1. Why is it important, when drafting a will, to use all the names that the testator uses in theownership of real and personal property?

2. What court has primary jurisdiction to administer a decedent’s estate?

3. What words can be written in a will to prevent a subsequent marriage from revoking the will?

4. Why is it not necessarily preferable to include funeral and burial arrangements in a will?

5. What is one advantage and one disadvantage of a specific legacy?

6. When and to whom does title to real property pass when a sole owner dies?

7. How does a demonstrative legacy differ from a specific legacy?

8. When a decedent dies testate and there is no residuary clause in the will, who receives property thatis omitted from the will?

9. What is the difference between a guardian of the person and a guardian of the property?

10. Why is a clause giving powers to a fiduciary helpful?


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CHAPTER 6178

n CASES TO DISCUSS

1. Article SIXTH of Barnett’s codicil provided: “I direct that all the rest, residue and remainder of myestate, including my home and its contents, of whatsoever nature and wheresoever situate, be soldand liquidated and I give and bequeath such remainder, including any legacy which may havelapsed or otherwise not be distributable, to the Federation of Jewish Philanthropies of New York.”Did this language create a specific, demonstrative, or residuary gift to the Federation? Explain. In reEstate of Barnett, 408 N.Y.S.2d 295 (NY).

2. In her will, Helen Nesmith left all of her tangible personal property to Frederic T. Greenhalge, II,except those items which she designated by a memorandum to be given to others living at the timeof her death. Before executing two codicils to her will, she had drafted a “memorandum” whichlisted 49 specific bequests of tangible personal property to be made upon her death. She had alsowritten in a notebook entitled “List to be given,” the following words: “Ginny Clark farm picturehanging over fireplace. Ma’s room.” Ginny Clark, a neighbor and close friend, had admired thepicture, and Nesmith had told two nurses that the picture would go to Clark. Will Clark receive thefarm picture under Nesmith’s will? Why or why not? Clark v. Greenhalge, 582 N.E.2d 949 (MA).

3. Hanna LeSueur had lived for at least 50 years in Lakewood, Cuyahoga County, Ohio. At the age of96, after being diagnosed as having chronic dementia, she was moved to a Lucas County nursinghome, where she died in less than three months. Her will declared her to be a resident ofLakewood, and her funeral services and burial were there also. Her niece, Marjorie, who lived inFulton County, filed the will for probate in the Fulton County Court of Common Pleas. Does thatcourt have jurisdiction to settle the estate? Explain. LeSueur v. Robinson, 557 N.E.2d 796 (OH).

n RESEARCH ON THE WEB

1. Log on to <http://www.lawguru.com> and click Probate & Wills. Then, scroll down to MoreLawGuru Probate, Trust, & Wills law Q & A and click your state. Look for questions and answers ofinterest to you.

2. Go to <http://www.lawguru.com> and click Codes & Statutes. Then click United States followed bythe name of your state. See if you can locate your state law on the subject matter of wills.


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n SHARPENING YOUR PROFESS IONAL SKILLS

1. Refer to the “A day at the office ...” scenario at the beginning of this chapter and draft the initialpart of an exordium clause identifying Jack Russell.

2. Draft an exordium clause for a person who plans to be married and wishes to leave a gift in the willto the future spouse.

3. Obtain a copy of a deed to someone’s real property. Using the property description in the deed,draft a clause for a will that devises the specific property to another person.

4. Jack Russell has $15,000 in Account No. 007 64 329 at the Ocean City Savings Bank. (a) Draft aclause for his will leaving a pecuniary bequest of $10,000 to his daughter, Mildred F. Russell. (b)Draft a clause for his will leaving a demonstrative legacy of $10,000 to his son, Michael S. Russell.

5. Jack Russell wishes to leave the residue of his estate in equal shares to his two children, Mildred andMichael. Mildred is adopted. Look up your state statute on adopted children. (a) Cite the statutoryreference where it is found. (b) Determine whether it would be necessary to include in the will theclause about adopted children discussed in this chapter.

6. Draft a testimonium clause and an attestation clause for the will of Jack Russell, using theinformation found in the opening vignette of this chapter.

7. Does the law of your state provide for the self-proving of a will? If so, (a) give the statutory referencewhere the provision is found, and (b) draft a self-proof clause following your state statute.

8. Who should perform the duties of executor under the will of John F. Kennedy, Jr. (reproduced inAppendix B)? [Note: Anthony Stanislaus Radziwill died of cancer a month before JFK Jr.’s death.]

9. How does the will of John Lennon (reproduced in Appendix B) help to establish Lennon’sdomicile for the purposes of settling his estate?

10. Describe the in terrorem clauses in the wills of George Burns and John Lennon (reproduced inAppendix B). George Burns’ will would leave the sum of $1.00 only to any devisee, legatee, orbeneficiary who contests the will.

11. Who is appointed guardian in the will of John Lennon (reproduced in - Appendix B)? Thealternate guardian? Explain the difference between a guardian of the person and a guardian of theproperty.

12. How does ARTICLE TEN of the will of Richard M. Nixon (reproduced in Appendix B) provide forlegacies being distributed to minors?

13. List the legatees and the amount of each pecuniary bequest named in Paragraph FIVE (B) in thewill of Doris Duke (reproduced in Appendix B).


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CHAPTER 6180

n SHARPENING YOUR LEGAL VOCABULARY

On a separate sheet of paper, fill in the numbered blank lines in the following anecdote with legalterms from this list:

attestation clause

community property

demonstrative legacy

dispositive provisions

domicile

executor

executrix

exordium clause

fiduciaries

general legacy

guardian of the person

guardian of the property

incorporation by reference

in terrorem clause

no-contest clause

pecuniary bequest

personal representative

publishing clause

residuary clause

self-proof clause

signature clause

specific bequest

specific devise

specific legacy

surety

tangible personal

property

testamentary trust

testimonium clause


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The opening paragraph of Katherine Ganon’s will, called the (1) or the (2), stated that she lived at 22Livingstone Street, Tampa, Florida. Because that address is her principal place of abode, it may be referredto as her (3). The main body of Katherine’s will consisted of several paragraphs, known as (4), whichdisposed of all of her property. She left a valuable painting, which was a(n) (5) to her niece, Myra. Thepainting is considered to be (6) because it is capable of being touched. She left $10,000 to her nephew,George. This was a(n) (7) because it was a gift of money from the general assets of the estate. It is alsoknown as a(n) (8). Katherine left $10,000 to her niece, Eva, which was to be paid from the funds thatKatherine had on deposit in account number 39-778216 at the Century Bank. This was a(n) (9) because itwill not adeem if there is no money in the account when she dies. Katherine left her residence located at 22Livingstone Street, Tampa, Florida, in equal shares to her children, Doris and Daniel. This gift is called a(n)(10). In the (11) of her will, Katherine gave all of her property that was not otherwise disposed of to herchildren, Doris and Daniel, in equal shares. Katherine named her daughter, Doris, to serve as the personalrepresentative of her estate. Doris will be known as the (12) of the will. Had Daniel been named to serve inthat position, he would have been known as the (13). Because Katherine’s children were both adults, therewas no need to appoint a(n) (14) to have custody of the children or a(n) (15) to care for the children’sproperty. Katherine signed the will on the line that followed the (16). Two of her friends signed as witnesseson the lines that followed the (17). Finally, a notary public signed the will on the line following the (18)after taking the oaths of Katherine and the two witnesses.

n KEY TERMS

ademption

attestation clause

demonstrative legacy

dispositive provisions

executor

executrix

exordium clause

fiduciaries

general legacy

incorporation by reference

letter of instruction

no-contest

pecuniary legacy (bequest)

personal representative

residuary clause

self-proof clause

signature clause

specific devise

specific legacy

surety

tangible personal property

testimonium clause

Online CompanionTM

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