Having a well-drafted will that clearly expresses your intentions is essential.
If you’ve written instructions someone will find confusing, they can’t ask you for clarification. It’ll be too late.
I’ve reviewed far too many wills where not enough was said to truly reflect the testator’s intentions. For instance, say your will has the following clause:
To pay $10,000 to each of my sister Elizabeth and my friend Catherine.
If both Elizabeth and Catherine are alive on the your death, each will receive $10,000. If Elizabeth dies before you, her $10,000 will be distributed to her spouse. If Catherine dies before you, her share lapses and is added to the residue of your estate.
Why are the two legacies treated differently? Because, in Ontario, that’s what the applicable law, the Succession Law Reform Act, says. Is this what the testator intended? Maybe. Maybe not.
A well-drafted will should clearly express all your intentions. In this case, if you didn’t want anyone other than Elizabeth or Catherine to get the money, the clause should read:
To pay $10,000 to my sister Elizabeth, if she survives me. To pay $10,000 to my friend Catherine, if she survives me.
If you wanted someone else to get the money should Catherine predecease you, it should read:
To pay $10,000 to my sister Elizabeth if she survives me. To pay $10,000 to my friend Catherine, if she survives me. If Catherine fails to survive me, to pay $10,000 to my friend Laura, if she survives me.
(Had the initial clause omitted the word “each,” there would be even more confusion as to what was intended. Do Elizabeth and Catherine share $10,000 or do they each get $10,000? What if only one is alive at the testator’s death? Many a court case has revolved around the meaning of a single word or sentence.)
A well-drafted will is clear on its face and avoids the need to turn to the law to provide an interpretation that may not reflect the testator’s true intentions.
The disposition of personal property is another area where simple wills often fall short.
If you wanted each surviving niece and nephew to be able to select a special item of personal property or wanted your oldest daughter to get the grand piano, but only if she pays to have it shipped to her, the will needs to say that.
A two-page will that says to “divide my estate equally among my nieces and nephews” won’t do it. A clause that fails to specify whether the beneficiary or the estate is responsible for the cost of delivering personal property may result in a costly resort to the applicable law and bad feelings among all concerned.
When dealing with the disposition of personal property, you have options. You may:
- bequeath particular items in your will (the list can range from very short to very long)
- detail schemes of distribution (e.g., “to divide my remaining personal property among those of my children alive at my death, in such manner as they may agree upon, or, failing agreement, in such manner as my Trustees in their absolute discretion consider equitable”)
- prepare precatory (non-binding) memoranda detailing your wishes
- prepare binding memoranda
As with many estate-planning considerations, there is no one right way. The best option depends on your circumstances and intentions.
Bottom line: While an inexpensive, simple will may save you money in the short run, such savings may be at the expense of your true intentions or result in increased costs and bad feelings in future.