July 10, 2020

When I’m speaking with a client regarding their Estate Planning, and we are discussing their Will specifically, I encouraged them to think of the Will as a recipe:

If I was going to write a recipe for a cake which required one to get the milk, sugar, eggs, etc. from various places, then blend them in a certain way, then put the mix the oven that’s been preheated, and follow the rest of the instructions – will they get a cake at the end if they follow the recipe properly? Yes.

What if I inserted instructions in the recipe that they must hop on one leg while they are mixing the ingredients? Is that going to be enforced? Will that play into the desired outcome of having a cake? Probably not.   One can regard certain provisions is a Will in a similar manner.

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If there are specific steps you are seeking for someone to take when carrying out your wishes or conditions to be met – you’re probably better off looking at a trust (bake the cake now, instead of leaving behind a recipe.) It allows you much more flexibility and control.

Remember a Will is a public record document once somebody passes away. The Will doesn’t have any “power” until it goes through probate. At that point the Will would be submitted to the surrogates court and the executor is given the appropriate documentation to carry out the wishes.

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That means having a provision such as “everything goes to my spouse as long as they don’t get remarried” would then be part of the public record. That may not be your intention.

But even beyond that – most courts will generally try to find ways to NOT enforce provisions if they are deemed to be against public policy, such as discouraging marriage.

Also, circumstances may make those restrictions inconsistent with your ultimate wishes. What if you had a provision that said a grandchild will only receive an inheritance upon receiving a degree from a four-year college institution, but then that grandchild is diagnosed with a learning disability or another condition which makes it impossible for that condition to be met? Is that consistent with the grandparents planning objective? Possibly not. But to undo that might require Court approval or even a challenge.

I don’t have an exact percentage as to how many Wills get challenged versus how many Trusts get challenge, but I would wager that it’s at least 5:1 if not 10:1 with Wills being challenged much more often.

That’s not to say you shouldn’t have specific incentive provisions or conditions which are consistent with your wishes in your Wills. However, your attorney should guide you as to whether or not there is a potential challenge looming due to either ambiguity in your desires or a difficulty in enforceability.

Challenges can be costly, but attorneys generally make more money when litigating Will disputes than they do simply administering trusts or properly carrying out the intentions in a Will. Therefore, much care should be taken in ensuring that the will is clear, enforceable, with as little complication as possible to carry out your wishes.

And if you need us, we’re here to help.