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Simple Wills Can Cause Complexity If Not Properly Drafted

February 18, 2012 | Comments: 0 | Views: 200

A Last Will And Testament is a document which provides for the distribution upon death of the assets an individual and his/her ancestors have accumulated during life. There are many formal legal requirements relating to the creation and execution of a Will which must be followed for the Will to be valid. A proper Last Will and Testament is intended to assist in the administration of one's estate after death. Shortcuts in drafting a Will can cause headaches and complexity.

Assume a situation in which a Will reads in its entirety, "I, (husband), leave all my property and holdings to (wife), so long as she remains my widow." Also assume the husband in this hypothetical had been married previously and had children from both marriages. There are two possible ways the will could be interpreted. First, the will could be read as granting a life estate to the wife, with whatever remained after her death to be equally divided among all of the husband's children. Alternatively, the will could be interpreted to grant all the property to the wife so long as she never remarry. Upon her death, the remaining property would be distributed in her estate and to only her children.

Due to the fact that the will is unclear as to the husband's true intentions, a Court would forced to determine his intent through evidence presented and testimony. In this situation, the court could determine that the husband intended only to grant a life estate and have any property that remained after his wife's death to be distributed to all of his children. One reason commonly cited by court decision is that a person must convey by "express language or necessary implication" an intention to disinherit. Since the interpretation granting all the property to the wife, so long as she not remarry, in turn disinherited the husband's children from his first marriage without any language regarding disinheritance, the Court could rule out that interpretation.

In this example, the failure to clearly state an intention to disinherit children of a prior marriage could potentially defeat the intention of the person who created the Will. Of course, it is impossible to determine the actual intent of the individual, since he is deceased. The court then would be only left with the ability to apply historical legal principles to try to determine what the individual actually meant.

The problem would have been averted if the Will have been properly drafted in the first place. This example represents why an attorney-drafted will in connection with an estate plan is the best way to see that your intentions are fulfilled. An attorney in the above case would have seen the issues raised by the husband's will, and would have constructed a will to reflect the true intention of the husband. Instead the Court, and not the husband, had the final say over how his estate was to be distributed.

This article is intended to present general information for educational purposes, is not legal advice and should not be relied upon in connection with any particular matter. The reader is advised to immediately retain their own separate legal counsel with respect to any specific legal issue. Rights to bring a claim will expire through the passage of time by the applicable statute of limitations.

Ralph E. Elliott practices law at Law Offices of Ralph E. Elliott, A Professional Corporation which is comprised of Lawyers in Freeport, Illinois who have over 34 years of experience including an Estate, Elder Law and an Estate Planning practice. The firm is situated at 1005 W. Loras Drive, Freeport, IL 61032 and serves business, individuals and the agriculture community in Northwest Illinois.

©Law Offices of Ralph E. Elliott, A Professional Corporation 2012.

Source: EzineArticles
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