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Don't Try Writing Your Will at Home

Writing your will is not a do-it-yourself project. Words are important. The words that are not in your will can be as important as those that are. That is one of the reasons you should not try to write your own will. Even pre-printed forms and computer programs can lead to problems. Take the case of Mr. Tate, recently decided in Somerset County.

Mr. Tate dies leaving an estate consisting of $700 in household goods. He also owned certificates of deposit, a checking account, money market account, life insurance policy dividend and cable refund with a total value of $39,300.

Mr. Tate died leaving a will that was apparently prepared by a local notary (practicing law without a license) who used a pre-printed form and filled in the blanks. Mr. Tate's will said: "I give, devise and bequeath all my personal property, jewelry and furniture, to my niece, Valarie Nichols." . . . "I give, devise and bequeath all the remainder of my estate, which I may own at the time of my death or to which I may thereafter become entitled, to my friend, Janet Geisel."

So what's the problem? The question is who gets the $39,300 - Valarie Nichols or Janet Geisel? Why is this a question? Because personal property, as understood in the law, means any kind of property other than real property. Thus, bank accounts, certificates of deposit and other cash items are personal property.

The will says all personal property goes to niece Valerie Nichols - which would mean she would get all of the assets - bank accounts, certificates of deposit, etc. Janet Geisel, the other beneficiary disagreed. She said that since the decedent had no real estate she would get nothing and that what the decedent meant was tangible personal property should go to niece Valarie and everything else should go to friend Janet.

Had the will included one more word, "tangible," there would have been no dispute. "Tangible personal property" is a well defined class of property under the law.

The first point I want to make is that if there has to be a lawsuit over a $39,000 estate, how much do you think is going to be left for any beneficiary? If writing your own will means you need a court to interpret what you meant, you have made a serious mistake.

What do you think? What did Mr. Tate intend? And how do we know? We can't ask him.

In this case, the court applied a doctrine of construction called "ejusdem generis" to reach its holding. "Ejusdem generis" is Latin for "of the same kind." As applied to Mr. Tate's will, this phrase means that "where general words follow enumerations of particular classes or persons or things, the general words shall be construed as applicable only to persons or things of the same general nature or kind as those enumerated." In other words, since the will said "all my personal property, jewelry and furniture" the general words "personal property" should be interpreted to mean property of the same type as jewelry and furniture.

So Janet Geisel gets the $39,300. . . . minus the costs of the lawsuit. It reminds me of the plumbers fees: $50 per hour; $75 per hour if you help; $100 per hour if you try to fix it yourself first. This is only one of innumerable such stories. In my experience, almost every self-written will contains at least one ambiguity or problem that must be interpreted (by a judge) when the estate is being administered.

Have you ever noticed that wills written by attorneys are often much longer than those from "kits?" That is because the attorney adds many clauses and definitions that are added to clarify and protect the testator's intent. Do-it-yourself are usually thinking about what they want to put into a will and are not focused on important words, phrases, and clauses they may be omitting.

Moral of the story: Writing wills is not for amateurs. You may think you are being clear, covering all the possibilities, and complying with all the legal requirements. And maybe you are - but there is no way you can know for sure that what you have written will accomplish what you want or create a dispute.


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Spencer Law Firm LLC
320 Race Ave
Lancaster, PA 17603

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