I NEED A LAWYER
By Timothy S. Barkley, Sr. February 2018.
“My brother said we should just download a will off the Internet for our mother, but that made me nervous. I didn’t understand it, and when I asked what things meant, he got mad at me. I don’t think he understood it, either.”
I looked at the Will. It left everything to Mom’s three children, whom we will call A, B and C, and provided that if “any” of them died, the estate would be distributed to “their children.” C has already died.
When Mom dies, should C’s share be distributed to C’s children (more correctly denominated “his children”), or in equal shares to the children of A, the children of B and the children of C (“their children”)? Did Mom want C’s share to stay in C’s family, or did Mom want to benefit all of her grandchildren equally – after all, she loved them all equally.
A and B’s children have an opinion (“their” is plural and means all three of them) different from that held by C’s children (“their” is nominally singular in our enlightened culture in which the non-gender-marked “his” can no longer be used and is preferred to the clumsy “his or her”). A well-drafted will written by a competent grammarian would have clarified (“the children of my deceased child” or “the children of all of them”).
“My divorce lawyer said I needed a new will as part of my divorce 10 years ago. I want somebody to look at the will to make sure it’s still good.”
The will provided that assets were to be divided between children and grandchildren, and that the grandchildren’s share was to be “held in trust for their education.” The document didn’t specify how long, or what form of education (vocational, technical, professional, collegiate, graduate, continuing, life enrichment, spiritual development, etc.) qualified. Worse, one of the children was the trustee of the trust, and “any amount not spent shall be divided between my children.”
I explained that we needed to be much more specific, and that the trustee had a conflict of interest – whatever wasn’t spent on “education” (whatever that meant) would benefit the trustee personally. Fortunately my client was still alive and competent, so we could redraft the will and clean up this mess before it became a lawsuit.
Unfortunately, in the first vignette, Mom is now incompetent, and the will cannot be “cleaned up.” I told my visitor that she would have to try to work things out between the grandchildren, and hope for the best.
“I’ve signed two or three wills in my life, and I’ve never had anybody ‘swear in’ me and the witnesses, and no lawyer has ever asked for my ID. What’s that all about?”
“When someone challenges a will, one of the potential grounds for contest is that it was not ‘duly executed’ – that is, not signed according to the legal requirements for wills. Those requirements,” I pointed out, “are not just arcane relics. They ensure that the document being enforced as a will was actually intended to be a will, and not just a love note or Christmas card.
“So we follow all the rules to the T, so that if someone challenges your will it will stand up. That includes getting your ID, so that I can state that I know the right person signed the will. Imagine if your son paid an older friend to sign a will in your name, leaving everything to your son – how would I know that it was a forgery?
“And a notary has to keep a record of the name, address and identifying information of everyone whose signature is notarized, and a description of the document notarized, the names of the witnesses, and your signature. Otherwise, the notarization can be challenged. The other day I notarized a deed for a man adding his new wife to the title – imagine what it would be like if the guy signing the deed wasn’t actually the husband, but the wife’s new boyfriend …”
Lawyers and other professionals have too long jealously guarded the portals of the temple of knowledge, charging fees for enlightenment and gnosis. This is justly resented by our fellows, but at the same time those spending their time in pursuit of wisdom may have valuable insights that we ignore at our peril. The workman is worthy of his hire. And, hopefully, he is a good grammarian.
Attorney Tim Barkley
The Tim Barkley Law Offices
One Park Avenue
P.O. Box 1136
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