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Thursday, March 26, 2020

Why do people make wills that say the opposite of what they really want?

Everyone has heard the word "legalese". It refers to the kind of language that is often found in legal documents such as contracts and wills. Legalese is generally thought to be impossible to read or understand by anyone but lawyers and judges. This is ironic, considering that legalese developed because lawyers were doing mental and linguistic gymnastics to try to convey a person's position or wishes with precision.

I believe in clarity and precision of language, as do pretty much all lawyers. The longer we practice law, the better we get at drafting and writing with confidence and effectiveness.

Given the amount of time and energy that go into a legal document, I have to wonder about clients who sign a document as being their wishes, then tell me about "side" deals and promises and arrangements that don't show up anywhere in the document. For example, a Mom signs a will leaving her house to her son. I review the will with her and confirm these instructions. At that point she confides in me that she really wants him to share the house with his siblings. Or that she promised her brother he could have the house for a dollar. Or she told one of the other kids they could live there for free after she died.

So why would she want to make a will that says the OPPOSITE of what she really wants?

I almost always get the same answer. "Because it's simpler", the clients tell me. No. They are wrong. That is not simpler. What is simple is making a document that says what you want, that leaves no room for guessing and does not pit your children against each other. What is simple is creating legal rights you intend to create and not leaving your children twisting in the wind with nothing legal to rely on when it all falls apart.

The fundamental error underlying the attitude that it's simpler to do it this way is that parents are too optimistic. They believe nothing will really change when they pass away. All of their children will get along. Everyone will understand and agree with the parent's wishes. Nobody will question why they have a will that leads them in the wrong direction. Everybody's memory of the side deals will be accurate and fair to everyone. For sure nobody will be greedy! There will never be a need to rely on the legal system because all will be rainbows and unicorns.

Let's be realistic. I wouldn't even have a job if people behaved that well. If things do fall apart, the children need a document that creates and defines the legal rights of the various beneficiaries.

Everyone needs a solid will. The backbone that makes it solid is that the wishes it contains are truly the wishes of the testator. In my opinion, avoiding legalese helps too.


2 comments:

  1. I fear that is what's happened with my mother's Will. I have letters, emails from her saying she believes we "all really love each other." My brother has everything. He told her to cut me out. Nobody will referee unless I defend my rights. What rights? Ontario doesn't care about daughters, sisters, women in a family. It's Ok for a family to back stab a daughter. Just another day in Ontario's systemic chauvinism. My mother is a victim too.

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    Replies
    1. Hi Brigid,
      I'm sorry to hear about your situation. I disagree that it has anything to do with gender, though. In my experience, there are plenty of males being bullied by their kids too. In addition, I absolutely do not see judges who favour male applicants over females either. Rather than blame this on systemic chauvinism, put the blame where it belongs - on one selfish brother.

      You are right that nobody will referee. But think about the bigger context of your statement. You are saying that because you're a woman, you need special help in the form of a referee. Your right to oppose undue influence of your mother is the same as a man's right to oppose it. Don't complain about systemic chauvinism if you are at the same time buying into it!

      These comments may sound harsh to you, but they are not intended in that way. I went to law school when only about 15% of the class was female and I was only 21 years old, and believe me, I've seen chauvinism in all its glory. I know it exists but I do not believe it is the reason you are having trouble with this estate.

      Lynne

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