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Wednesday, February 9, 2011

With wills, simple isn't always better

In the years that I've been working with wills, I've noticed that the vast majority of clients begin their conversation with "I want a simple will".

I know better than to take this statement at face value. I'm well aware that it is client-speak for "don't charge me too much". For some reason, many clients seem to think that a simpler will is a cheaper will. Nothing could be further from the truth, if simplicity is taken too far. A will that doesn't address everything it needs to address may or may not cost a few dollars less right now, but it is pretty much guaranteed to cost you a heck of a lot of money later on.

I'm in favour of plain language. I believe that people should be able to read and understand their wills without a legal dictionary on hand to sort out "per stirpes" and "in specie" and "hereinbefore". Keeping language simple is good; leaving out important words or paragraphs is not so good.

Individuals who make their own wills tend to chop out anything they don't recognize or understand. This is really unfortuate, as it results in many of the executor's powers being removed. The end result is that when the executor tries to sell the house or wind up a business or a dozen other everyday tasks, he has to get permission or ask the court for guidance. 

The powers are there for a reason. Sure, they add a couple of pages to the will,  but they're important words, not filler. I'm not saying that having more words is always better. I'm saying that having more of the right words is better.

I've noticed that some lawyers will actually cave in to the client's demand that a will must be simple, even where it is clearly not in the client's best interests to do so. What is the point in hiring someone to do a job if you are going to second-guess every word and insist that the job only be done halfway? Would you stop a painter from finishing a room if he'd only painted halfway up the wall? Would you hire a cab driver to take you halfway to your destination then insist that he drop you off on a deserted sidewalk?

In a will, brevity should not be the first goal.

Let's look at some examples. A testator leaves his estate equally among his children. But by the time he passes away, one of his children has already died. This wasn't covered in the will because he wanted to keep it simple. The executor then has to determine who gets the deceased child's share, and pay the funds to the Public Trustee to be held for the grandchildren. The grandchildren get their shares at age 18, even though none of them are mature enough to handle it.

A woman leaves her estate to her son and daughter. She knows that her daughter has always loved her jewelry and promises her that one day she can have it, but doesn't want to clutter up the will with gifts like this. She passes away. The son wants half the jewelry to pass down to his own children. They dispute who should have the jewelry and it ends up in court.

A man passes away leaving a cottage as part of his estate. His simple will left everything equally among the kids. They fight over who gets the cottage. It's settled by a judge. The kids who don't get the cottage end up paying the capital gains tax on the cottage out of their part of the estate, as the law dictates. The rest of the kids stop talking to the one who got the cottage.

Another example is a business owner who leaves his estate to his children. He doesn't bother talking about what should happen to his business because that's too complicated. When he dies, two of his children work in the business and fight over who should run it. The third child has inherited a third of the shares of the company and wants to sell them, but the other two don't want her to do that, and the fight begins over that as well.

These are only a few common examples. In each case, the person was happy with his or her will because it was "simple", but in each case the will just didn't achieve what the person wanted. "Simple" should be way down the wish list, below "accurate", "comprehensive" and "effective".

The bottom line is that either you figure out what you want to see happen with your estate and you SET IT OUT FULLY IN YOUR WILL, or your family will end up fighting it out after you're gone.

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