I recently had the opportunity to attend a lecture by a colleague discussing the benefits of certain will clauses as illustrated by notable wills in the public record. At one point we were discussing spendthrift clauses, a common technique to withhold a benefit from someone whose creditors would just end up with it anyways, using an excerpt from the self-written will of President (and attorney) Thomas Jefferson:
“Considering the insolvent state of affairs of my friend & son in law Thomas Mann Randolph, and that what will remain of my property will be the only resource against the want in which his family would otherwise be left, it must be his wish, as it is my duty, to guard that resource against all liability for his debts, engagements or purposes whatsoever, and to preclude the rights, powers and authorities over it which might result to him by operation of law, and which might, independantly (sic) of his will, bring it within the power of his creditors. . .”
The attorney noted how beautifully written the prose of those days went, how lofty and eloquent it was. I noticed something very different, though, and very disturbing. I saw precatory language.
Precatory language is legal parlance for statements that are aspirational in nature and without legal effect – comments beginning with such phrasing as “I wish…,” “it is my sincere hope…,” “it is my deepest desire…,” or “I would very much like…”. Take a look at Jefferson’s Will again. He says it is his duty to disinherit his son-in-law, he says the man would want to be disinherited, and he explains how very important it is that he be disinherited, but he never actually disinherits the man!
In Jefferson’s defense, he did go on to give Randolph’s share to someone else in the next paragraph, but if he hadn’t, the debt-riddled son-in-law would have a pile of cash to go along with those harsh words. While courts have become more forgiving towards small, technical glitches in the past two centuries, the failure to clearly make or deny a gift in a will is still a deal-breaker.
Twenty-five cent words and lofty language have no doubt been married to the legal profession since it’s inception, but they don’t belong in the meat-and potatoes sections* of your will. I imagine many purchasers of do-it-yourself kits or online wills have attempted to emulate the verbal gymnastics they expect of lawyers, only to have their deepest wishes struck down in probate for wont of clearer writing. By the same virtue, if you press your attorney to spruce up a draft or include some language you’ve thought long and hard about yourself, you might be doing yourself a disservice.
The best wills are boring creatures. They are unexciting, straight to the point, and – if nothing else – a little bit redundant. If you are presented with a will that has such tedious statements as “I give, bequeath, devise, and transfer the rest, residue, and remainder of my estate, real and personal, tangible and intangible, and however held by me or my estate,” your lawyer likely knows what he is doing.
*You may want your will to include provisions which cannot be enforced in probate, like the ultimate recipient of property you only partially own or are leaving to your surviving spouse, funeral arrangements in states where that’s not allowed, or other last requests of your family. It is acceptable to include these things, and if some colorful wording will help to indicate the severity of your convictions, the importance of the request, or to apply whatever warning/guilt-trip you think will help, your attorney should be able to oblige.