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August 2017

Will Drafting 101

By Bernard A. Krooks, Certified Elder Law Attorney


We all know how important it is for each of us to have a Last Will and Testament.   A primary reason is that upon death your property is distributed according to your wishes.  Without a will, you would die intestate and the state would determine who gets your property.  But what else should a will accomplish?  First, it should name the executor.  This is the person(s) or entity that will manage the estate.   Second, the will should clearly identify who, if anyone is to receive specific bequests.  Specific bequests are usually a particular item, certain dollar amounts or percentages that go to a particular person. Finally, the will should include a residuary clause which states who gets whatever property is in the estate that has not yet been distributed after the specific bequests have been satisfied.


Here’s what a typical residuary clause looks like: All the rest, residue and remainder of my estate, both real and personal, I give, devise, and bequeath to my husband, John Doe, if he survives me.  The precise language of your residuary clause is not usually the important concern. Instead, it is usually enough to just include a provision, in language clear enough to dispose of any remaining property in the estate.


Sometimes, though, the language ends up being unclear. That was what happened in a recent case involving an inadequate residuary clause.


Susan had lived with her life partner Herb for many years, but they were not married.  Herb helped her write a will, using a sample form that a friend had downloaded for him off the internet.


The will left a gift of $50,000 to Susan’s favorite charity. It then provided that a portion should be held in a trust to help Herb cover the costs of managing the house they had owned together, with the remainder going to Herb outright.  A number of smaller bequests (from $2,000 to $15,000) were made to several individuals and charities.


Susan’s will had a residuary clause which provided that after all specific bequests were satisfied “any monies remaining in my estate” should be given to Herb.  Unfortunately, this created a problem with her estate.  Even though her intentions were purportedly clear (at least to most non-lawyers) that Herb receive the remainder of her estate (after specific bequests), the legalese did not conform to this intent.  The issue was whether the term “monies” included her interest in the family home that she wanted to leave to Herb.  This was the home where she and her brother grew up.


When Susan’s parents died, they had left the family home to her and her brother. She still had a half-interest in the property, though her brother lived there. Two years after Susan’s death, her brother also died. Now the issue was what to do with her half of the house.

Susan’s family argued that she had made no provision for disposition of real property.  Her residuary clause addressed only “monies”, and so (they argued) she had died partially intestate.  In other words, her will was simply silent as to what should happen to the house, and it therefore went to her next of kin. It was as if she had no will at all — at least as to the family home.


Herb, however, argued that her residuary clause should be read more broadly.  It clearly indicated her intention that the rest of her estate should go to him. The fact that she referred only to “monies” was just a slip of language, and should not be used to defeat her obvious intentions.  Besides, argued Herb, the law disapproves of intestacy.  If it is possible to read the will as including all of her assets, that helps defeat intestacy and that should be the probate court’s goal.


Ultimately, the court agreed with Susan’s family, and found that she had died partially intestate. The family home would go to her brother’s estate — and ultimately to his family.  The use of “monies” in her residuary clause could not be construed to include a bequest of real estate, reasoned the court. Susan’s family ended up with the family home, not Herb.


Moral of the story:  drafting wills properly is not easy.  Make sure you work with an experienced estate planning attorney.


Bernard A. Krooks, Esq., is a founding partner of Littman Krooks LLP and has been honored as one of the “Best Lawyers” in America for each of the last seven years. 914-684-2100, www.elderlawnewyork.com.