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Practical Guidelines for Bolstering a Last Will and Testament

A person’s last will and testament expresses and memorializes his or her testamentary desires. Expressing and preserving these wishes is often just as important to the client, if not more so, than the economic implications of the testamentary scheme. Careful planning to preserve the will’s validity and to ensure enforcement of its provisions is paramount. This article provides some practical guidance in preparing and finalizing the last will and testament.

Preserving the client’s intent is most easily achieved with clear and concise drafting. Though this is a seemingly obvious point, errors are frequent and can have a disastrous effect upon administration of the will. Mistakes such as mis-numbering the pages of a will or making alternative dispositions of a single asset are simple to avoid, but are also frighteningly common in practice. Particular attention should be paid to gifts to charitable organizations, as the charitable deduction may be denied if the charity is not a qualified Section 501(c)(3) organization. Qualifications can easily be checked by reference to the Exempt Organizations Select Check tool on the IRS website (formerly Publication 78). Uncertainty may arise if the charity is not correctly named, and expensive investigations and Attorney General involvement may ensue. Along these same lines, drafters should avoid overly complex or ambiguous wills. If the draftsperson is not available to interpret the will’s convoluted language, the executor may be left floundering as to what was truly intended. It is critical that the client’s intent be clearly expressed so that it can be followed after his or her death.

Careful planning is not complete without an evaluation of the client’s testamentary capacity. In New York, testamentary capacity requires that the client know or understand (i) the nature and consequences of creating and signing a will; (ii) the nature and extent of his or her property; and (iii) the natural objects of his or her bounty. This is a much lower standard than that required for contractual documents. Moreover, a client who otherwise lacks capacity may still have testamentary capacity if the will signing occurs during a “lucid interval.” Prudence dictates that the client’s apparent capacity be documented at each meeting and at the signing ceremony as a safeguard if questions as to testamentary capacity arise. This is particularly important when a will contest is likely, such as when the testamentary distribution is unusual, is disproportionate, or disinherits a family member.

Another basic, yet crucial aspect is to ensure compliance with the statutory formalities at the signing ceremony. New York law requires that the client sign his or her will in the presence of at least two witnesses. Witnesses should be selected carefully and should be individuals who will remember the ceremony and be available to testify. It may also be advisable to have three witnesses sign the will as a precautionary measure. If a witness is “interested,” meaning that he or she also receives a benefit under the will, that person is still a valid witness, but the bequest may be lost unless one of two limited exceptions applies. A self-proving affidavit is recommended to ease the probate process.

When a will contest seems likely, an in terrorem clause may be beneficial. An in terrorem clause, also known as a “no-contest” clause, generally provides that a bequest will fail if the beneficiary initiates or participates in a will contest. In other words, the beneficiary must either accept the will or risk losing any benefits received. The clause can be an effective deterrent to a will contest, but only if the potential will contestant has something to lose. For instance, a beneficiary who receives only a nominal bequest, has very little to lose by bringing a will contest. Conversely, a beneficiary given a more substantial bequest may be more hesitant to bring the contest for fear of losing the bequest.

When preventing a will contest is a concern, consideration should also be given to a technique known as “buttressing the will.” Under this technique, the client executes multiple wills with the same or similar provisions. Upon the client’s death, if the most recent will is invalidated for lack of capacity, the previous wills can be offered for probate. These “back-up” wills ensure that the client’s estate will pass according to the default laws of intestacy. Buttressing the will can also serve as evidence that the client had testamentary capacity. If the will is contested, the will proponents can point to the previous wills to show that the client repeatedly disposed of his or her estate in a similar manner and thus did indeed intend for that distribution.

One of the foremost attacks to a will may be invalidation due to undue influence or coercion. It is extremely important to protect a will from these claims. One suggestion might be to request that the client come to the attorney’s office without other family members or intended beneficiaries. Another recommendation might be to prepare a letter discussing the client’s desires and what he or she wishes to accomplish in the will. For example, if one child is particularly aggressive, the client might prepare a letter stating that it is her desire to benefit each of her children equally and that if a conflicting will appears, it should be presumed to be the product of undue influence unless prepared by her usual attorney and accompanied by a clear statement indicating otherwise.

In sum, preservation and enforcement of the client’s desires are two essential goals of drafting a last will and testament. Following the simple, yet fundamental guidelines outlined above is of the upmost importance in protecting and effectuating the client’s wishes.