Introduction:
She was a successful businesswoman who had built several businesses and knew what she wanted. She was also dying and only had a few more months left to live. Hence, she spent considerable time preparing her estate for her children and grandchildren, utilizing multiple trusts and pre-death gifts.
When we were finally ready to execute nearly a hundred pages of testamentary documents, she paused and looked at me sadly. “This is so complex, so stilted. It doesn’t sound like me at all. This distorts who I am and what I want, not in what happens but in what it sounds like.”
She was right.
Honed by two hundred years of complex drafting to avoid any possible ambiguity and to conform to estate tax regulations, the language of the average Trust or Will is as antiquated and complex as the Internal Revenue Code. The reason is simple: in the thousands of Will contests and related litigation as to inheritance, any loopholes or unclear/contradictory language have been used in the past by attorneys to seek to invalidate the Will or Trust. Even if unsuccessful, the contest incurs a significant cost, and the wise attorney now seeks to utilize language that removes all such issues, however stilted and seemingly obtuse.
Language that was successfully defended fifty years ago is utilized again and again, and, as the decades pass, the language becomes antiquated and rigid, but safe.
The client, reading through that “safe” language, can often feel dismayed that the last thing his or her family will read from him or her is a complicated and cold set of instructions. A lifetime of love and care is reduced to a complex set of requirements that is devoid of caring or love.
Thus, it is tempting for many of those preparing their estate plan to attempt to cushion the instructions in personal communications, both verbal and in writing, to demonstrate such compassion after death. That can be satisfying to the person dying, but it has some dangers that are addressed in this article.
Basic Law on Testamentary Writings:
There are two types of writings that the courts in California allow to serve as binding instructions to the heirs. The first are “holographic” Wills, discussed in detail elsewhere on this website, and which are writings by a now deceased person entirely in his or her handwriting, witnessed or not, which clearly indicate a testamentary intent and can be proven to be entirely drafted by the deceased. The second are formalized Wills and Trusts, normally drafted by an attorney, and which must be witnessed by two witnesses (for Wills) and notarized (for Trusts).
The danger that arises from personal written communications is that the court may have to decide if it is a holographic Will or not, and whether it supersedes other testamentary documents. Such writings may also be ambiguous since they were not written by an attorney and may be contradictory to other portions of the estate plan.
The danger of verbal communications is that an angry beneficiary may later claim that it indicated a state of mind of the decedent as to gifts made while alive or interpretation of a Trust or Will that can encourage later Will contests or challenges to the Trust. The very thing that makes Wills and Trusts hard to contest, namely the complex language, is abandoned in personal communications and thus may open the door to disputes that can tear a family apart.
As an example, litigated by our office thirty years ago, someone wrote what was alleged to be a holographic Will which stated that X would not receive his portion of the estate, “…if he was gone.”
An heir argued that by “gone” it meant he was not in the room or in the home when the Decedent passed. We argued that it was a typical term meant to mean predeceased. The case went to trial, and once we won, it was appealed. It cost the estate close to a hundred thousand dollars, perhaps two hundred thousand in today’s dollars. All because the now deceased person wrote, “gone,” rather than “deceased.”
It never occurred to the Decedent, who had been a university professor, that his writing would lead to this conflict. What was meant to be a transfer of assets became a land mine that tore the family to shreds.
Pros and Cons:
Pros:
Non-Testamentary Verbiage: It may very well be appropriate for the Decedent to let an heir or family member know his or her feelings about matters not connected with inheritance. This is particularly true where an ancient disagreement or current tensions may end up cemented forever by the death, and the Decedent wanted to let the person know that love and concern remained, and the past anger forgotten. There may be some family history that the Decedent wants to share or some additional facts about families and events that need to be communicated. These do not belong in a formal Will or Trust and are rightfully put in a letter.
Distributions Outside of Will or Trust: Some objects have little real value, such as keepsakes or souvenirs that the Decedent wants to have distributed and not use the formality of a Will or Trust. Such items as lucky charms or school papers and the like are often distributed informally in this manner.
Private Messages: Family secrets that need to be explained or communicated, or very personal matters that the Decedent wants a party to know, should not be in a Will or Trust, which can be public documents.
Cons:
Confusion in Wording: It is quite easy for wording to lead to confusion and potential conflict, both in terms of conflicting with the other parts of the estate plan or being confusing as to intentions. The very rationale for the stilted language in the Trust or Will is to avoid such potential confusion or ambiguity. What is appropriate for a casual conversation can be trouble for a legal document, which can no longer be explained because the Decedent is no longer there.
Lack of Clear Thinking: Often, the writings or comments are made while the Decedent is ill or under medication, and that leads to unclear thinking and communication. Too often, a verbal gift is made to two or more people, or a gift already made months before is given away again simply because the Decedent is not capable of the same degree of thinking that he or she had six months previously.
Danger of Last Minute Requests and Pressure: All too often, potential heirs, hearing that the Decedent is writing down thoughts and messages, will assume they can get one more thing or one more message from the Decedent and put pressure on an already sick person to communicate or gift something away. A time that should be as peaceful as possible becomes rife with pressure.
Good Practice:
An elderly client once commented on his deathbed that he didn’t need to write any last-minute messages to anyone. “After seventy years, if they don’t know how I feel and what I want, tell them to read my Will. Simple as that.”
That said, most people do want to make sure their loved ones know they are loved and are particularly concerned with family members who are distant, since they cannot have the final conversations with them in person. Letters or cards to them may make sense to them, but it is wise to follow the rules listed below:
Make sure your attorney knows you are doing this, and if you can, show him or her what you are writing so he can stop errors before they begin. Show it to him before you send or deliver it to the family member or friend.
If you are on medication, think twice before writing anything. Talk to your Doctor.
Do not give anything away in the writing; tell your lawyer what you want to give and have him or her draft the letter with you.
Make sure you are not giving the same thing to two or more people. Ask your family if you have already given it away.
Make sure that the writing cannot be interpreted as a holographic Will, and do it in the easiest way possible: say so in the writing. THIS IS NOT A WILL OR AMENDMENT TO MY WILL OR TRUST. THIS IS NOT A DOCUMENT, CREATING GIFTS OR BEQUESTS. I HAVE ALREADY CREATED SUCH DOCUMENTS AND THEY ARE IN FORCE. INSTEAD, THIS IS A PERSONAL MESSAGE TO…, etc. And sign the document to make sure there is no question about that.
If you do want to alter something in your estate plan, do it formally. Your attorney will tell you how to do it. Do not add holographic amendments if you can avoid it. The same care in wording that resulted in your “stilted” estate plan must be replicated in any amendment to it to avoid all the problems cited above.
When in doubt…do nothing. You spent months or years creating your existing plan. You did it when in better health and state of mind. Those around you now are probably very emotional and tense due to your imminent death…as are you. Good decisions are seldom made in such situations.
Conclusion:
During a long and expensive will contest case, one of our law clerks put the matter succinctly as we tried to demonstrate what the Decedent meant when he said a particular phrase in a letter which our opponents claimed was a new Will. “If he was alive again for only thirty seconds, he could simply tell us what he meant. Instead, we are spending weeks arguing about it in a courtroom.”
Right. Words that can easily be explained or clarified are locked in stone once a person dies, so a casual letter can become a major matter of contention on you are dead. Each word, each phrase, can matter and be argued over in a very expensive forum.
If you feel it necessary to create personal communications, it is thus vital to ensure that they do not open the door to family-destroying disputes. The solutions are not hard: putting in any writing that this is not a Will or Trust and if there is a conflict between this writing and the Will, the Will prevails, etc., having an attorney review to avoid such issues, carefully avoiding giving away anything in the personal document, etc., are often ignored by dying people who are often ill and on medication. One can be swayed by last-minute emotions or thoughts and want to put down in writing last-minute instructions or thoughts.
Just be careful in how you do it. You do not want to hurt the family.