This Blog was written by: Emily Racine
While reviewing wills with clients, the focus is often on the dispositive provisions of the will; in other words, clients tend to focus on the first five pages of the will and leave the rest to the lawyers. For the most part, this is for good reason. Wills often contain 10 or more pages of boiler plate language that can put even the most ardent scholars to sleep. After all, clients care about where their hard-earned estate is headed not all the language lawyers insist is necessary for it to get there properly.
However, a recent incident emphasized the importance of reviewing the entire will and not just a portion or if. It was relatively common a number of years ago to include a provision that children born outside of marriage are not to be considered a child or grandchild under the will and therefore are not to inherit property under the will. Within the ever-changing landscape of modern marriage, the rise of common law couples and the changing societal rules, this clause can often throw a wrench into an otherwise well designed estate plan. This is particularly the case if clients were not aware the clause existed because it was buried in the back of a will. While this clause is not seen as often these days, it can exist in an older will without clients even being aware of it.
In this case, the client had a grand-son whom he loved dearly who was born to his daughter outside marriage. The idea that this clause could have kept this grand-son from inheriting would have been devastating.
This is only one example of potential pitfalls that can be missed if a will is not reviewed in its entirety. Clauses relating to trusts for minors, incapacitated beneficiaries and charitable causes are often quickly skimmed through without being understood. It is the responsibility of the drafting lawyer to make sure standard boiler-plate language does not inadvertently threaten an estate plan. It is also the responsibility of the drafting lawyer to review these clauses in detail with their clients to make sure they are comfortable with them.
For these reasons, when reviewing your will every three to five years, do not simply review the estate distribution plan. It is important to understand the will as a whole in order to make sure it reflects your plan and your wishes.