Basic Wills Drafting,
Part 2
A manual to accompany the online CLE seminar
Presented by
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Copyright © 2010 Barristers Educational Services
PRACTICAL TIPS IN DRAFTING SIMPLE WILLS,
Part 2
I.
Four Different Forms of “Gifts” in a Will.
There are four different classes of testamentary gifts:
(1)
Specific gifts – Here the testator provides for who will receive a specific,
designated piece of property;
(2)
General gifts – Here the testator leaves the specified beneficiary (i.e.
testamentary heir) a certain classification of assets (e.g. “I hereby give and
bequeath unto my beloved son John any and all automobiles I may own at the
time of my death.”) or makes a gift that will be paid out of the general assets of
the estate (e.g. “I hereby give and bequeath unto my beloved nephew Joe the sum
of $25,000.00.”);
(3)
Demonstrative gifts – These are not common, but not unheard of. Here
the testator provides for a gift that must be satisfied out of a certain fund or from
certain property (e.g. “I hereby give and bequeath to my beloved sister Ruth
$25,000.00 from Passbook Savings Account Number AZ123789 at Second
National Bank of Eastabuchie.”)
(4)
Residuary gifts – With rare exceptions, every Will should contain a
residuary clause in which a beneficiary or beneficiaries are named to receive
anything not otherwise disposed of by the Will, as well as any specific, general,
or demonstrative gifts that have totally lapsed. This is the catch-all provision that
is crucial to the estate planning process.
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II.
Lapse of Gifts
When the client is explaining to the lawyer how he/she wants the estate
distributed and begins to name the desired recipients of various assets, the lawyer should
at least suggest that the client name alternative beneficiaries who will receive each such
gift in the event the first intended beneficiary predeceases the client (or dies with the
client in a common accident). At a minimum, the lawyer should clearly explain to the
client what would happen to each separate gift if the intended beneficiary were to
predecease the client.
The rules governing the disposition of such “lapsed gifts” are set forth in state
statutes. These rules will apply unless the testator provides otherwise in the Will by
naming sufficient alternative and/or residuary beneficiaries. The bottom line is to insure
that the client would be satisfied with the alternative distribution in the event of a
primary beneficiary’s death.
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III.
Designating Executors.
Obviously, every Will should name an executor, and preferably an alternate
executor in the event the first choice predeceases the testator or subsequently becomes
unable or unwilling to serve as executor. Otherwise, it is up to the court of the testator’s
last county of domicile to appoint a substitute administrator.
A.
Contrary to the belief of some clients, a person may serve as executor
even if he or she is beneficiary under the Will.
B.
The lawyer should fully explain to the client the exact duties and
responsibilities of the executor so that the testator can make an intelligent choice of
executors. Unless the testator has some well-grounded reservation about the named
executor, the Will should normally waive the requirement of bond in order to simplify
the probate process. Otherwise, the executor will be required to post a bond in an
amount equal to the full value of the estate as determined by the court. This can, in
some instances, work a significant hardship on the executor if he does not have the
personal resources to post a cash bond in that amount and local insurance brokers are
unwilling to underwrite a bond for him/her.
X.
Designating Trustees.
For any testamentary trusts established in a Will and in any inter vivos trusts, a
trustee should be specifically designated. It is even more important with trusts that this
fiduciary be chosen with care. Beyond the obvious qualities of integrity, experience, and
maturity, a trustee generally should have significant asset management experience.
Some clients like to designate a close friend or family member. This usually
insures that the Trustee will show a personal interest in the Trust and its beneficiaries
and that the Trustee will be acquainted with any peculiar interpersonal aspects of the
Trust or people involved. In addition, these types of trustees will often forego the fees
that are otherwise payable to trustees out of the trust, thus saving more money for the
benefit of the named beneficiaries. On the other hand, individual trustees may get sick
or die, and often they are overwhelmed by the technical investment and management
needs of the trust.
Corporate trustees (such as bank trust departments), on the other hand, offer a
team of professionals who are in the business of handling such investments and property
management tasks. In addition, since a corporate trustee is an entity, there is no problem
with the trustee becoming sick or incapacitated. At the same time, however, these
corporate trustees obviously charge the trust for their services. In considering a
corporate trustee, then, the lawyer should obtain the schedule of fees from area trust
departments and give the client some idea of the expense involved.
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A third option is to name co-trustees, with one being a personal friend or family
member (this familiar face is of considerable comfort to many settlors and beneficiaries)
to provide the personal touch, and the other being a corporate trustee who provides the
investment and management expertise.
IV.
Designating Guardians.
There are two types of guardians for minor children: a) guardians of the person,
and b) guardian of the property of the minor. If the property of the deceased parent is
placed in a trust for the benefit of the minor children, then there generally is no need for
a guardian of the property.
V.
Self-Proved Wills.
To avoid the frequent difficulties in probating a Will whose witnesses have died
or disappeared, there is a growing tendency to provide clients with self-proving Wills.
In essence, this simply involves having the witnesses, as part of the Will, execute the
type of affidavits that they heretofore were asked to sign only upon the death of the
testator (i.e. affidavits affirming that they saw the testator sign this Will and that the
testator was mentally competent). This is generally a good practice.
VI.
Revocation of Will or Codicil.
In most states, there are two ways to revoke a Will (or Codicil): (1) by physical
act (i.e. destroying or obliterating the document, or (2) by a subsequent writing. In
regard to a physical act, the most common form of revocation under this portion of the
statute is the simple tearing up of every page of the document. Under case law, this
physical destruction must be made with the intent to revoke the Will (i.e. it cannot be an
accident).
The “revocation by subsequent writing” can be in the form of a simple written
declaration in which the testator simple states, more or less, “I revoke my Will dated
__________.” However, it is much more common to revoke an old Will with a new
Will. If a new Will is being signed to completely supersede the old document, then the
new Will should contain an unambiguous statement of revocation. See sample forms. A
newer Will which does not specifically revoke the previous document will control only
to the extent of any inconsistency in the two Wills. Where there is no inconsistency,
provisions of both Wills will be carried out.
Once a Will is revoked, the revocation is permanent unless the revoked document
is later affirmatively and specifically revived in writing by the testator.
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VII.
Codicil.
A codicil is a document which somehow changes a certain part(s) of the Will
without affecting the validity of the remaining provisions in the original Will. A codicil
is usually, but not always, quite brief. To be valid, a codicil must meet all the formal
requirements of a Will and must be formally executed in the same manner as a Will.
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[Forms begin on page 7]
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Form
COMPLETE WILL #3: MARRIED TESTATOR
Key Provisions:
A) Entire estate to spouse
B) Alternate gift to child in testamentary trust if spouse predeceases testator
C) Testamentary trust gives fee simple principal of trust to child in 5-year increments to
insure that child develops maturity and responsibility (safeguard against child
squandering inheritance). Child receives interest income in the interim.
D) Explanation of no provision for older, adult children due to gifts already made to
them during testator’s lifetime
E) Sixty (60) day survivorship period in common disaster clause
F) Executor/Trustee (fiduciary) powers – short version
Comments to Form
This form provides for the outright transfer of the testator’s entire estate to the surviving
spouse (see paragraph (2) of this form), unless she dies in a common disaster with the testator or
within (60) days of his death (see paragraph (4) of this form). The testator’s adult children are
not beneficiaries under this Will because of lifetime transfers to them (see paragraph (2) of this
form).
Testamentary trust for minor child:
In the event of the spouse predeceasing the testator, the estate passes to a trust benefiting
the testator’s minor child (see paragraph (5) of this form). The trust corpus is distributed to the
child in installments as she attains specified ages. During the term of the trust, the trustee pays
out income (and principal where necessary) under an ascertainable standard. The trust is
restricted by a spendthrift provision (see paragraph (6) of this form).
Time, Survivorship, and Common Disaster:
The survivorship requirements on the marital bequest in this form do not jeopardize the
marital estate tax deduction, as long as the spouse does in fact survive as required. In regard to a
specified time, any period up to six months from the testator’s death is allowable. This provision
for lapse by death in a common disaster need not be restricted to any specific interval. But, if at
the time of auditing the estate tax return there
is still the possibility that the surviving spouse will be deprived of her interest by
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operation of the common disaster provision, the deduction will not be allowed. For a more
complete discussion of common disaster and time survivorship clauses, see the comments to
Form #19.
Guardianship:
The testator’s use of the survivorship requirement deals with certain tax problems arising
from the other spouse’s concurrent or proximate death. When the couple has a minor child,
however, it is necessary to take the estate planning one step further by providing for a guardian
for the minor should both parents die in rapid succession. The use of the trust benefiting the
minor (see paragraph (5) of this form) and the appointment of an alternate as guardian for the
minor’s person (see paragraph (8) of this form) are suitable corollaries to the survivorship
requirement. Note that paragraph (8) of this form only appoints a guardian of the person of the
minor children. No guardian of the property of the minor is needed since the trustee of the trust
mentioned in paragraph (5) is filling that role.
Fiduciary powers:
The powers of the executor, and the trustee if named, are noteworthy for their brevity
(see paragraph (7) of this form), but such a clause is often sufficient, even in case of a will
containing trusts. Most jurisdictions have codified the powers that every fiduciary has by virtue
of his designation as such, absent the imposition of contrary limitations. In these jurisdictions, it
is superfluous for the testator to enumerate the fiduciary’s powers provided that the statutory
powers coincide with the testator’s wishes. However, if the drafting attorney still insists on a
detailed listing of executor and trustee powers, see the long versions in Form #4 (trustee only)
and Form #20 (executor and trustee).
In the enumeration of illustrative powers, there can be added the power to apply
principal for the current income beneficiary in derogation of the rights of successive
beneficiaries. When this power is added, it is often unnecessary to expand the short fiduciary
clause illustrated here.
FORM
LAST WILL & TESTAMENT
OF
MATTHEW DILLON
I, Matthew Dillon, of the City of Dodge, County of Ford and State of Kansas, being of
sound mind and memory, revoke any and all Wills and codicils heretofore made by me, and
declare this to be my Last Will and Testament.
1. Debts. I direct that my just debts, funeral expenses, and the costs of administration of my
estate to be paid out of the principal of my estate.
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2. Entire estate to spouse. I give to my wife, Kitty, all of the property of all kinds, wherever
situated, belonging to me at the time of my death, to be hers absolutely. As I make this bequest I
have my children, Louie Dillon and Roberta Dillon Shaw, in my mind, and I feel that I have
made adequate provision for them before the execution of this Will. I have in my mind also my
infant daughter, Lettie Dillon, and I have complete confidence that my wife will take care of her
and provide for her in the manner we both desire.
3. Appointment of executrix. I appoint my wife, Kitty, Executrix of this Will. In the event
of her death, or refusal or inability to act, I appoint Festus Haggen to act as successor Executor,
with all the rights and duties given to or imposed upon my Executrix. I direct that neither of
them shall be required to furnish bond.
4. Common disaster clause. In the event that my wife, Kitty, shall die with me in a
common accident or disaster, or under such circumstances as make it impossible or difficult to
determine which of us died first, or within 60 days after my death, I direct that my wife shall be
conclusively deemed not to have survived me.
5. Prior death of spouse. In the event that my wife, Kitty, shall predecease me, or shall be
deemed not to have survived me in accordance with the provisions of paragraph 4, all of the
property of all kinds, wherever situated, belonging to me at the time of my death, I give to
Festus Haggen, whom I appoint as Trustee, to be held in trust upon these terms and conditions:
(a) Until my beloved daughter, Lettie, shall attain the age of 21 years, the Trustee shall
pay to her or for her benefit, from the income or principal of the trust, such sum or sums as the
Trustee shall deem necessary or property to provide for her suitable support, education, and
maintenance, adding any unused income to the principal at the end of each year.
(b) When Lettie shall attain the age of 21 years, the Trustee shall distribute to her one
third of the principal of the trust. The Trustee shall thereafter continue to pay to her or for her
benefit, from the income or principal of the trust, such sum or sums as the Trustee shall deem
necessary or proper to provide for her suitable support, education, and maintenance, adding any
unused income to the principal at the end of each year. If and when she shall attain the age of 30
years, the Trustee is directed to distribute to her one half of the remaining principal of the trust.
The Trustee shall thereafter continue to pay to her or for her benefit, from the income or
principal of the trust, such sum or sums as the Trustee shall deem necessary or proper to provide
for her suitable support, education, and maintenance, adding any unused income to the principal
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at the end of each year. When she shall attain the age of 35 years, the Trustee is directed to
distribute to her the remaining principal and all accumulated income of the trust.
(c) In the event of the death of Lettie prior to the termination of this trust, then the
Trustee shall distribute the principal of the trust to her then living children, and, if none shall
then be living, then the principal of the trust shall be distributed to my other children, or their
issue, per stirpes.
(d) If any portion of the principal of the trust shall be payable to a beneficiary who is
less than 21 years of age, that portion shall immediately vest in such beneficiary, but distribution
shall be postponed by the Trustee until the beneficiary attains the age of 21 years, and in the
meantime the Trustee shall pay the part of the income on the portion, and the principal thereof,
as the Trustee shall deem necessary or proper to provide for the Beneficiary’s suitable support,
education, and maintenance, adding any unused income to the principal at the end of each year.
(e) Whenever as any beneficiary of the trust to whom payments are directed to be made
shall be under a legal disability, or, in the sole judgment of the Trustee, shall otherwise be
unable to apply such payments to his or her own best interest and advantage, the Trustee may
make all or any portion of the payments by expending the same for the benefit of the
beneficiary, or by making payments to the legal guardian or conservator of such beneficiary, or
to a relative of the beneficiary to be expended for the beneficiary’s benefit; and the decision of
the Trustee in each such case shall be binding upon all beneficiaries.
(f) No person dealing with the Trustee shall be obliged to inquire as to her powers or to
see the application of any money or property delivered to her. The Trustee shall not be required
to obtain authority or approval of any court in the exercise of any power conferred upon her.
The Trustee shall not be required to make any current reports or accountings to any court nor to
furnish a bond for the proper performance of her duties.
(g) If the Trustee shall be compelled at any time during the existence of this trust, or
thereafter, to pay any tax or interest or penalty for any reason, she shall be entitled to be
reimbursed from the principal of the trust; or if the trust principal be then insufficient, or it if be
then terminated, the Trustee shall be reimbursed by the persons to whom the principal of the
trust shall have been distributed to the extent of the amount received by each distributee. The
Trustee, before making any distribution of either income or principal, may accordingly require
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an undertaking in form satisfactory to the Trustee to reimburse her, or she may withhold
distribution pending determination or release of any tax lien.
(h) The Trustee may resign and appoint a successor Trustee by giving ten days’ written
notice to each income beneficiary. If for any reason there is at any time no Trustee, I appoint the
Bank of Dodge City successor Trustee, with all the rights and duties given to or imposed upon
my Trustee.
6. Spendthrift provision. No disposition, charge, or encumbrance of either the income or
the principal of the trust, or of any part, by my daughter, Lettie, by way of anticipation, shall be
of any validity or legal effect, or be in any wise regarded by the Trustee, and no such income or
principal, or any part, shall in any wise be liable to any claim of any creditor of the beneficiary.
7. Powers of fiduciaries. In the investment, administration, and distribution of my estate
and of the trust and of the several shares of it except where otherwise restricted, the Executrix
and the Trustee may perform every act in the management of my estate or of the trust which
individuals may perform in the management of like property owned by them free of any trust,
without authorization of any court, even though any such act would not be authorized or
appropriate for fiduciaries but for this power under any statutory or other rule of law, including
in this grant, without impairing its plenary nature, power: to acquire by purchase or otherwise
and to retain, temporarily or permanently, any and all kinds of realty and personalty, including
corporate shares and unsecured obligations, without diversification as to kind or amount; to sell
or otherwise dispose of any such property, publicly or privately, wholly or partly on credit; to
delegate discretion; and to distribute in kind or in money, or partly in each, even if shares be
composed differently.
8. Appointment of guardian. In the event my wife, Kitty, shall not survive me, or shall die
with me in a common accident or disaster, or within 60 days after my death, I appoint my sister,
Claudia Dillon McLeod, of the City of St. Louis, Missouri, as Guardian of the person of my
daughter, Lettie.
In witness whereof I have set my hand and seal to this Last Will and Testament, on the
margin of each page of which I have affixed my signature for better identification, on
September 10, 1955.
_________________________(Seal)
Matthew Dillon
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[Attestation clause should be added here – see Form #2 – or, for a “self-proving” feature,
use the attestation form at the end of Form #1.]
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Form
GIFT PROVISIONS, PART 1:
SPECIFIC GIFTS AND EXONERATION CLAUSES
Comments to Forms
A specific legacy is a bequest of an identifiable item of personal property. If the property
is not owned by the testator at the date of death, the gift lapses. This is known as ademption (see
provision (13) of this form). If the property is owned at death, the specific legacy takes
precedence over general and residuary gifts in the event the assets of the estate are insufficient
to satisfy all legacies. Executor’s commissions are generally not payable on property that is
specifically bequeathed, and the legatee is entitled to receive any income earned on such
property between the time of death and the time of delivery to the legatee. When specific items
are bequeathed, it is wise to leave the same beneficiary any insurance policies covering the
items (see provision (1) of this form). Many testators provide for alternative bequests in the
event the primary beneficiary (a spouse, for instance) predeceases the testator. Reference may
be made to a nonbinding memorandum (see Article III of Form #1 and comments thereto).
Drafting a specific legacy:
There are several fundamental considerations in drafting a specific legacy, some of
which are relevant in drafting every testamentary disposition. The subject of the gift should be
clearly described, especially if a class of asset is involved, such as the testator’s personal effects,
or household furnishings, or jewelry. The testator should consider the possibility that the form
of the property may be altered between the date of the Will and the date of death. (For example,
it usually is unwise to specifically leave “my 2005 Chrysler 300 to John” since the testator
likely will trade this car in for a newer model before his death. In such instances, a more
general provision (e.g. “any and all automotive vehicles I own at my death”) is preferable.)
Exoneration clauses:
Not infrequently the testator wants to have the gift go to the legatee free from any
obligation of taxes. This can be provided for either in a general clause regarding the tax
allocation, or in the paragraph describing the legacy. If the property is subject to any lien or
encumbrance, some states will generally require that the legatee take the property subject to the
lien or encumbrance unless a direction for paying it is included in the Will. Other states require
that the lien or encumbrance be paid off. In either event, the law can be overcome by contrary
instructions in the Will and thus it is wise to give clear instructions as to whether testator wants
these encumbrances paid off (and if so, a method and source of such payoff should be
specified). (See provision (14) of this form below.) (See also Form #2 and the comments
thereto for further discussion and examples of exoneration clauses.)
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If the specific legacy covers a group of items (e.g., household furniture) that may have to
be divided among several legatees, the testator should consider providing instructions about how
that division is to proceed. (Otherwise, unpleasant squabbles can erupt between family
members when, for instance, the furniture being divided includes an heirloom table that each
heir wants for himself.) A procedure for allocating the property may be described (see
provision (4) of this form), or the executor may be given broad discretion to divide the property
among legatees. (See provision (3) of this form.) The testator may make reference to a
memorandum, that is not a part of the Will, covering the disposal of specific items. The executor
may consult this memorandum but is not bound by it (see Article III of Form #1 and the
comments thereto).
The legatee should be clearly identified. If the gift is to an infant or to a class, special
care may be required in drafting the provision. Consideration should also be given to providing
for a substitute legatee in the event the legatee predeceases the testator. Absent contrary
instructions, if the legatee does not survive the testator, the property will generally fall into the
residuary estate, except when the local statute provides otherwise. The practice of some lawyers
of providing for the distribution of certain items of property in accordance with a separate
memorandum, or in accordance with broad authority delegated to the executor, can create
complex and litigious situations. Such practices, as well as precatory directions (i.e. mere
statement of wishes or desires), should be used sparingly.
When property is specifically bequeathed to a legatee, the testator may wish the recipient
to incur no cost in order to receive the property. If there is the likelihood that the property,
especially large items, will have to be moved from its location at the testator’s death, the testator
may instruct that any moving costs be borne by the estate.
Personal and household property often present a troublesome administrative problem,
because ownership as between husband and wife cannot often easily be established. Where this
class of property represents substantial value, the problem can be alleviated by an inter vivos
memorandum of ownership. Otherwise, reliance must be placed on insurance policies, purchase
invoices, and similar collateral evidence, with the possibility of conflicts between the estate,
taxing authorities and adverse legatees.
FORMS
(1) Household and personal property plus policies of insurance and claims to spouse
I bequeath to my wife, Alice, if she survives me, all of my household furnishings, wearing
apparel, jewelry, and other personal effects, and all automobiles which I may own at the time of
my death, together with all policies of insurance insuring such property against loss, destruction,
or damage due to fire, theft, accident, or other casualty and the net proceeds of all claims against
any insurance company or other person arising out of or connected with any loss, destruction, or
damage of any such item.
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(2) Household property – disclaimer by testator
The entire contents of our home is the property of my wife, Trixie, and I hereby confirm her
title thereto.
(3) Personal property to spouse – alternative gift to children – distribution by executor
I give all of my tangible personal property, together with the insurance on it, to my wife,
Alice Kramden. If my wife does not survive me, I give such property and insurance to my
children who survive me, to be divided among them as they may agree upon. My wife’s
brother, Ed Norton, may make such agreement and hold such property, or the proceeds of its
sale, during minority of any of my children who are minors. If no agreement is reached within
90 days of my death, my Executor in his sole and absolute discretion shall distribute such
property (and the proceeds of any of it he chooses to sell) among my children (and Ed Norton,
for any who are minors), taking into consideration the value of the items and preferences of my
children, but his distribution shall not be subject to question regardless of whether my children
receive shares of equal value.
(4) Household and personal property to spouse – alternative gift to children – method of
distribution among children
I give and bequeath to my wife all my household furniture and all my tangible personal
property. If my wife does not survive me, I give such furniture and personal property to my
children who survive me, and, if more than one survives me, such property shall be divided
among them in substantially equal portions as follows:
(a) My Executor shall place a value on each item.
(b) Each child shall select, in order of ages of the children, one item at a time, until the
value of the items selected by him or her totals the value of his or her share.
(c) Any items not so selected, and the proceeds of the sale of any item which my
Executor chooses to sell, shall be divided among my children so that the total value of items
and any cash shall be divided in substantially equal portions.
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(5) Life estate in specific property to spouse
I give to my wife the use, for her life, of all items of sterling silver which I own. At her
death, or if she predeceases me then at my death, all such items shall go absolutely to my
granddaughter, Amity Tupper, if she survives both me and my wife. No security or
insurance shall be required of my wife with regard to these items, nor shall she be liable for
loss or damage to any part of them. (See also Form # 10 for further examples and discussion
of life estate provisions.)
(6) Sale of real estate and distribution of proceeds thereof
I direct my Executor to sell the land and building owned by me at 79 Wistful Vista,
Lincoln, Nebraska, and to divide the proceeds, less the expense of sale, among those of my
grandchildren who are living at my death. The sale may either be public or private, and may
be made on such terms, including the acceptance of a purchase money mortgage, as in the
opinion of my Executor in his sole and absolute discretion shall be most advantageous to the
beneficiaries of this bequest.
(7) Anticipated inheritance – gift thereof
It is my understanding that, under the Will of my father, I am to receive the grandfather
clock which he received from his father. If I receive such clock, I bequeath it to my son,
Israel, if he survives me. If my son, Israel, does not survive me, I bequeath the clock to my
business associate, Mingo.
(8) Inherited property – general
If my wife, Rebecca Boone, predeceases me and if I inherit any property from her by
Will or otherwise, and if her mother survives me, I give, devise, and bequeath to her mother,
so much of the property so inherited, both real and personal, including the proceeds of sale
thereof and the investments and reinvestments thereof, as my Executor, in his sole and
absolute discretion, may determine that I still own at the time of my death.
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(9) Bank account – alternative gift
I give and bequeath to my grandson, Beaver Cleaver, if he shall survive me, all the funds
which are on deposit in the savings account in my name at the First Bank of Maxfield, Iowa.
If he does not survive me, the funds in that account shall be divided equally among those
children of my sisters and brothers who are living at my death. It is my intention by this
paragraph to bequeath only funds that are on deposit in that savings account, and I do not
intend to include amounts in any other account or any other bank.
(10) Contents of safe deposit box
I give and bequeath to my wife the entire contents, at the time of my death, of the safe
deposit box maintained by me in the First National Bank, Little Rock, Arkansas, together
with all interest and income accrued on any of the items contained therein.
(11) Promissory note
I bequeath to my brother, Tony Soprano, if he survives me, the promissory note dated
January 10, 1998, in the face amount of $12,500, executed in my favor by Silver Cup
Studios, including all interest and other charges accrued on this note at the date of my death.
(12) Professional library to child – alternative provision
If at the time of my death my son, Hiram, is either a doctor or is enrolled as a student or
has completed the course in a medical school, I give to him my medical library, including all
papers, records, and documents pertaining to the practice of medicine contained therein. If
my son is not a doctor, or is not so enrolled, or has not completed such course, or has
predeceased me, I direct that the books of my library be suitably inscribed with my name
and the entire library given to the Walnut Grove Medical Association.
(13) Alternative gift in case of ademption of original gift
I give and bequeath to my niece, Laura Ingalls, my crystal and diamond evening studs.
If at the time of my death I no longer possess such studs, I direct that my Executor shall give
my niece some considerable article from the personal effects contained in my residuary
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estate. My Executor shall have absolute discretion in this choice and his decision shall be
binding upon all my beneficiaries.
(14) General direction for discharge of encumbrances
If, at my death, any property which I own and specifically bequeath in this Will is
subject to a lien, pledge, security interest, or other encumbrance of any kind, such lien,
pledge, security interest, or other encumbrance shall be discharged from my residuary estate,
and no liability therefore shall attach to the legatee of such property.
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Form
GIFT PROVISIONS, PART 2
GENERAL AND DEMONSTRATIVE GIFTS
Comments to Forms
General and demonstrative gifts distinguished from specific gifts:
A general legacy is usually a bequest of a specific sum of money (see provisions (1)
through (3) of this form). The term is also applied at times to a bequest of readily obtainable
property, such as marketable securities (see provisions (4) and (5) of this form). A
demonstrative legacy is a type of general legacy, where the source of the specific sum of money
is specified (see provisions (6) and (7) of this form). If the source for payment is nonexistent or
insufficient at death, state law will dictate whether such a demonstrative legacy is payable out of
the general assets of the estate in the same manner as a general legacy. Since the demonstrative
legacy is usually designed only to insure payment, most drafters avoid this type of bequest and
achieve greater security for payment by using a preferred general legacy (see provision (2) of
this form).
Specific legacies (see Form #7) generally take precedence over general and
demonstrative legacies, absent contrary provisions in the Will. If the assets of the estate are not
sufficient to pay all the testator’s debts, general and demonstrative legacies will abate (be sold
off) proportionately, or completely if necessary, before specific bequests are abated (see
provision (3) of this form).
Order of preference:
As in the case of the specific legacy, the testator should consider such factors as the
possibility of the legatee’s prior death, the possibility that the net estate may be insufficient to
pay all legacies, the desirability of preferring some gifts over others, and the advisability of
freeing some or all legacies from estate taxes. The testator has the right to prescribe an order of
preference to be given to gifts, if the net estate should fall short of its estimated total. Except for
the statutory right of the spouse, this order generally will be respected. Similarly, the testator
may provide for the method of abatement of legacies in the event the net estate is insufficient to
pay them in full (see provisions (4) and (6) of this form). Limitation provisions are usually
desirable whenever an appreciable portion of the decedent’s estate is to pass under general
legacies, with the residuary estate reserved for those in whom the testator is most interested.
19
FORMS
(1) Cash bequest – alternative gift to issue of first taker
I give and bequeath the sum of $5,000 to my son, Willie, if he survives me, or, if he does
not, then per stirpes to those of his issue who survive me.
(2) Cash bequest – no alternative beneficiary – preference provision
I give and bequeath to my daughter, Carrie, the sum of $25,000, but if she does not survive
me this legacy shall lapse. If my estate shall be insufficient to pay all general legacies in full, I
direct that this legacy shall be paid in full before any amounts are paid on any other general
legacies.
(3) Cash bequests to several takers – proportionate abatement
I give and bequeath the following legacies to the following persons:
To Cordell Walker, the sum of $15,000
To James Trivette, the sum of $10,000
To Alex Cahill, the sum of $7,500
If any of these beneficiaries predeceases me, I give and bequeath his legacy in equal shares
to those of his/her children who are living at my death, or, if there are no such children, then the
legacy of such deceased beneficiary shall become part of my general estate. If my estate shall
be insufficient to pay these legacies in full, I direct that they shall abate proportionately.
(4) General legacy of corporate shares
I give and bequeath to my daughter, Angela, 100 common shares of CD’s Barbeque
Company, as such shares exist at the date of my death. This legacy is a general legacy.
(5) General legacy of corporate shares – to produce specified income
I give and bequeath to my father, Hays Cooper, if he survives me, 200 common shares of the
Western Union Company. If these shares have not yielded an average total cash income of at
least $1,000 a year for the five full years preceding my death, I further bequeath to my father
other such common shares as will be sufficient to give him reasonable assurance, on the basis of
20
earnings for the five years preceding my death, a total yearly income of that amount. The
discretion of my Executor as to the type and amount of securities to be purchased under this
paragraph shall be absolute. As a guide to my Executor in making purchases, but without
limiting his discretion, I am as much interested in providing a stable fund on which my father
can rely in case of need or emergency as in providing a relatively steady income for him, and if
I were making the purchases myself I would choose a more readily marketable and conservative
investments even though it meant a sacrifice in yield and required the purchase of a greater total
amount of shares.
(6) Demonstrative legacy – payment out of bank deposits
I give and bequeath $5,000 to my brother, Festus Haggen, of Dodge City, Kansas, payable
from any funds I may have on deposit in any type of account in the Hays City Trust Company.
(7) Demonstrative legacy – payment from proceeds of sale of property
I give and bequeath to my cousin, Chester B. Goode, of Dodge City, Kansas, the sum of
$5,000. This bequest is to be paid from the net cash proceeds of the sale of my farm in
Chesterland, Ford County, Kansas.
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22
Form
GIFT PROVISIONS, PART 3:
CONDITIONS FOR GIFTS
Comments to Forms
Conditional bequests:
A testator may make a bequest conditioned upon the happening of any event, provided
only that the condition is not against public policy and is sufficiently definite. Since a condition
to be performed after the decedent’s death will prevent the vesting of the bequest until it is
satisfied, consideration should be given to the applicable state rule against perpetuities.
Conditional bequests appear at provisions (1) through (4). The legatee’s age may figure in the
conditions that attach to a bequest. Certain tasks may have to be accomplished by a stated age
(see provision (1) of this form), or the bequest may be conditioned on the legatee reaching a
stated age (see provision (7) of this form). A bequest may be made on condition that a
beneficiary refrain from contesting the testator’s will. This is usually accomplished by use of an
“in terrorem” clause (see provision (9) of this form).
Deferred bequests:
A deferred bequest, unlike a conditional bequest, is one which vests upon the death of the
testator, but where payment is postponed for a specified period. Thus, payment may be in
installments, or delayed until the beneficiary reaches a certain age, or marries, or until the
expiration of a period after the testator’s death, or completion of a college education, or the
death of a third party, or the happening of any other event. Since deferred bequests vest in the
beneficiary (unlike conditional bequests), the estate of the beneficiary will take if such
beneficiary dies before the payment is due. Provisions (5) and (6) of this form defer the payment
of installments of a bequest until the beneficiary reaches a certain age. Provision (8) combines
age requirements with other considerations.
Conditional and deferred bequests should generally be limited only to special situations.
Whenever used, the draftsman must carefully distinguish nonbinding precatory (i.e. mere
statement of wishes) language from language creating a condition or a deferment. In the case of
a gift to a surviving spouse, a condition attached to the gift may disqualify it for the marital
deduction. This is because the surviving spouse’s interest must be payable “in all events.”
Problems with the marital deduction occur most often with marital bequests that terminate upon
the surviving spouse’s remarriage (see provision (2) of this form).
FORMS
(1) Conditional bequest conditioned upon college education
I give and bequeath to my nephew, Derek Shepherd, the sum of $5,000, provided that at the
time of my death he has graduated from a college accredited by the Association of American
23
Universities. If he has not then graduated, I direct my Executor to hold that sum and to pay it
over to my nephew if he does so graduate between the time of my death and the time he reaches
24 years of age. If my nephew predeceases me, or, if he has not graduated from such a college
by his 24th birthday, this bequest shall lapse and become part of my residuary estate.
(2) Conditional bequest of life estate in home conditioned upon widowhood
I give and devise to my wife, Helen Crump, for her life or until her remarriage, our home at
11 Elm Street, Mayberry, North Carolina, or any other home which may be our regular place of
abode at my death. At the death or remarriage of my wife, or at my death if my wife predeceases
me, such home shall go to my son, Opie, his heirs and assigns forever, if she is then living, or, if
he is not living, then to his oldest issue then living, his or her heirs and assigns forever. My wife
shall not be liable for waste nor be required to furnish security of any kind. She shall, however,
make all ordinary repairs on the premises, maintain adequate fire insurance coverage, and pay
all taxes and assessments, and make all mortgage payments, whether of interest or of principal.
In addition to this devise, I give and bequeath to my wife outright all tangible personal property
located on the premises which is being used or is usable for the maintenance or furnishing of
either the house or the property on which it is located.
(3) Conditional bequest to children conditioned upon their becoming business partners
I give and devise to each of my sons, Robbie and Chip, the sum of $20,000, if they are
partners in any business enterprise at the time of my death or if they become partners within five
years thereafter. If either of my sons predeceases me, his bequest shall be divided among those
of his children who are living at my death, and the surviving son shall take immediately upon
my death without regard to the above-mentioned condition. If either of my sons dies within the
five-year period following my death and before the formation of such partnership, his bequest
shall be divided among those of his children who are then living, and the surviving son shall
take immediately without regard to the above-mentioned condition. The determination of
whether my sons have fulfilled the above-mentioned condition shall rest exclusively with my
Executor.
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(4) Conditional bequest to city conditioned upon public improvement
I give and devise to the City of Pine Ridge, Arkansas, the real property which I own on
Fillmore, between Pine and Glenwood, in that city, provided, however, that there be built on
that property within three years after my death a public hospital named in honor of my wife,
Emma Goff, and erected at a cost of not less than $1,000,000, exclusive of equipment. If this
condition is not fulfilled, this devise shall lapse and that property shall pass as though it had
been part of the residue of my estate.
(5) Deferred bequest to child at specified age
I give and bequeath to my son, Dan Reed, the sum of $50,000, payable to him when he
reaches 30 years of age if he has not yet attained that age at my death. If my son should
predecease me, that sum shall pass as part of the residue of my estate. If my son should survive
me but die before reaching 30, that sum shall be paid immediately to his estate.
(6) Deferred bequest payable in installments at fixed ages
I give and bequeath to my son-in-law, Benard P. Fife, of Raleigh, North Carolina, the sum of
$100,000, which shall be paid in three equal installments, one each when he reaches 25, 30, and
35 years of age. If my son-in-law shall survive me but die before receiving any or all of this
bequest, the part then remaining unpaid shall be paid to his estate. Should my son-in-law
predecease me, the entire bequest shall lapse and shall pass as part of the residue of my estate.
(7) Conditional bequest conditioned on attaining specified age or prior marriage
I give and bequeath the sum of $75,000 to my daughter, Hannah, which shall be payable to
her when she shall attain the age of 25 years or upon her marriage, whichever even shall first
occur. If my daughter shall not survive me, or, having survived me, shall die before having
attained the age of 25 years and without having married, I give and bequeath this sum of
$75,000 to my nephew, Quint Asper, if he is then living; otherwise, this sum shall be paid to the
Denver Metro Hospital, Inc., for its general corporate purposes.
(8) Deferred bequest to be paid between certain ages depending upon financial maturity
25
I give and bequeath to my son, Newly, the sum of $75,000, which shall be paid to him at any
time after he has reached the age of 21 years when, in the judgment of my Executor, he has
acquired a sufficient degree of maturity and financial acumen to make it unlikely that this sum
will be dissipated improvidently, but in no event shall the payment of this sum to my son be
deferred beyond his 30th birthday. If my son does not survive me, or, if he does survive me but
dies before receiving his bequest, this sum shall be distributed equally to those of his children
who survive him; if my son is not survived by any of his children, this bequest shall lapse and
be distributed as part of my residuary estate.
(9) In terrorem clause (no will contest clause)
Should any taker under this Will, including any taker under powers of appointment
exercised herein, become an adverse party in a proceeding for its probate, such taker shall forfeit
his entire interest hereunder and such interest shall pass as part of the residue of my estate,
provided, however, that if such taker is one of the takers of the residue, his interest shall be
divided proportionately among the other takers of the residue. This paragraph shall not be
construed to limit the appearance by any taker as a witness in any proceeding for the probate of
this Will, nor to limit his appearance in any capacity in a proceeding for its construction.
26
Form
GIFT PROVISIONS, PART 5:
SPECIAL PROVISIONS REGARDING HOMES AND
CONTENTS
Comments to Forms
Testamentary transfers of real property, called devises, are governed by the local law
that is in effect where the property is located. According to the law of the particular state, a
devisee of real property may take title subject to all encumbrances existing at the decedent’s
death. In such states, unless the Will directs otherwise, the devisee generally has no claim for
payment of the encumbrances out of the other assets of the estate (see provision (4) of this
form). See Form #2 and Form # 7 (and the comments thereto) for a more detailed discussion of
provisions dealing with payment of liens and encumbrances (known as “exoneration clauses.”)
Devises of specific real property may be combined with bequests of tangible personal property
located on or related to the realty. Insurance policies on any of the property may also be a part
of the bequest (see provision (2) of this form).
In most jurisdictions, two or more devisees take title as tenants in common unless a joint
tenancy with right of survivorship is specifically created. Spouses, however, generally take
property as tenants by the entirety unless the testator’s Will specifically creates a tenancy in
common. Because tenants in common have a right to partition jointly held property, a testator
may prefer to leave realty to one person or in joint tenancies.
FORMS
(1) Transfer of home and contents to spouse
I give and devise to my wife, Gracie, if she survives me, in fee simple, the buildings and
land which comprise our home at 281 Willameda Drive, Los Angeles, California, together with
all tangible personal property located there, of whatever nature, which is used or usable for the
furnishing or upkeep of either such buildings of land. My Executor shall have absolute
discretion to determine the items passing under this paragraph. If my wife does not survive me,
this gift shall lapse and the property shall become part of my residuary estate.
(2) Transfer of home and contents plus related insurance policies and claims
I give, devise, and bequeath to my husband, George, his heirs and assigns forever, the land,
building, and improvements owned by me at 281 Willameda Drive, Los Angeles, California,
and all of the furnishings and equipment contained therein and used in conjunction therewith
27
together with all policies of fire, casualty, and similar insurance covering the building,
improvements, furnishings, and equipment and all claims for loss, damage, or destruction in
respect of these policies of insurance.
(3) Transfer of home and contents to spouse – alternative gift to surviving issue – division by
Executor
I give, devise, and bequeath to my wife, in the event she survives me, but if she shall not
survive me then to my children to who survive me, as set forth below, any residence that I may
own as our home at the time of my death, together with all of my technical library and other
books, furniture, pictures, jewelry, heirlooms, clothing, and all other household furnishings,
equipment, and personal effects, in or about our home. In the event my wife does not survive
me, then my Executor shall have the power and the duty of making a division of all of the
property described in this paragraph or the proceeds from the sale of this property among my
children who survive me, such division to be as nearly equitable as my Executor deems
practical, but his decision shall be binding and conclusive.
(4) Transfer to spouse of present or future home free of mortgage
I give and devise to my wife, Olivia, any interest that I may own in the premises that we
occupy as our regular home at the time of my death, whether those premises be our present
home at 518 Market Street, Natchez, Mississippi, or a home to which we later move. If the
property passing under this paragraph should be subject to a mortgage or other encumbrance at
the time of my death, I direct my Executor to discharge the mortgage or encumbrance, including
accrued installments of principal and interest, out of the proceeds of my general estate, so that
such property shall pass to my wife free and clear of any such mortgage or encumbrance.
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FORM
GIFT PROVISIONS, PART 10: RESIDUARY GIFTS
Comments to Forms
A testator’s residuary estate consists of all the property in the estate not otherwise
bequeathed or devised, and which is left after the payment of debts, administration
expenses, and taxes. Unless the residuary estate is given outright to adult beneficiaries,
the Executor may be required to liquidate the assets to facilitate distribution. The
residuary bequest may be made to one person (see provision (1) of this form), or be
divided among a number of beneficiaries (see provisions (2) and (3) of this form). The
testator may wish a residuary beneficiary to receive only a certain type of property (see
provision (4) of this form). Certain property may also be removed from the effect of the
residuary bequest (see provision (2) of this form).
Division of the residuary bequest among several beneficiaries can be effected in
several ways. Each beneficiary’s shares may be a percentage of the residuary estate. This
percentage may be modified depending on the monetary value of the estate.
Beneficiaries’ shares may also be modified by factors the testator specifies in the bequest
provision, such as lifetime gifts to a beneficiary or the beneficiary’s marital status (see
provisions (3) and (6)).
Alternative beneficiaries:
As in the case of all gifts, consideration should be given to the possibility that a
residuary beneficiary may predecease the testator. The general rule that a lapsed gift
falls into the residuary estate may not be helpful in this situation. Therefore, the
importance of providing for an alternate beneficiary may be even more important for a
residuary gift than for other types of gifts in a Will. Examples of how alternative
beneficiaries may be named appear in provisions (4), (6), and (7) of this form.
FORMS
(1) Residue to spouse – alternative gift to surviving issue
All the rest of my estate, both real and personal, of whatever nature and wherever situated,
including, without limitation, all property which I acquire after the execution of this Will, all
property over which I may have a power of appointment, and all lapsed legacies and bequests, I
give, bequeath, devise, and appoint to my wife, Kitty, if she survives me, or, if she does not
survive me, per stirpes to those of my issue living at my death.
29
(2) Division of residue between spouse and surviving issue – excluding property subject to
appointment
All the rest of my estate, excluding, however, property over which I have a power of
appointment granted to me under the Will of my mother, I direct my Executor to divide into two
equal shares. One share I give, bequeath, and devise to my wife, Carol Stevens. The other share,
or, if my wife predeceases me, then the entire residue, I give, bequeath, and devise per stirpes to
my issue living at my death.
(3) Division among children – provision for spouse of deceased child
All the rest, residue, and remainder of my estate, not disposed of elsewhere in this Will,
shall be divided into six equal parts and shall be paid over directly to my six children named
below, one part to each: Greg, Marcia, Peter, Jan, Bobby, and Cindy. If any of my children
predecease me, leaving issue him or her surviving, then such deceased child’s share shall go to
his or her issue then living, if any, per stirpes. If any of my children predeceases me without
issue living at my death, but leaving at that time a surviving husband or wife who has not at that
time remarried, then such surviving husband or wife shall receive, if the value of such share
permits, the cash sum of $15,000, and nothing more; any excess in value of such deceased
child’s share over and above the $15,000 shall be divided equally among the remainder of my
then living children, and, in the case of any deceased child, the then living issue of such
deceased child, per stirpes. If any of my children predeceases me without issue living at my
death and without a husband or wife surviving me who has not remarried, then such deceased
child’s share shall got to increase the shares equally to any of my remaining children who are
living or represented by living issue. If at my death I am not survived by any of my six children,
or by their issue, and if a balance remains after the shares provided for the unremarried spouses
of my deceased children, all the rest, residue, and remainder of my estate shall be paid over to
those persons, and in such shares, as would take if I had died intestate in the State of California,
and as if all of the rest, residue, and remainder of my estate consisted of personal property
located in that state.
30
(4) Residuary real estate
I give and devise all my real property, with the buildings and improvements thereon, and all
rights and privileges pertaining thereto, which I own at my death, and which is not otherwise
devised by this Will, to my daughter, Amy, her heirs and assigns, forever, or if she does not
survive me, to my son, Chip, his heirs and assigns forever.
(5) Division of residue – allocation of specific item
All the rest of my property, including property over which I have a power of appointment, I
give, devise, and appoint in two equal shares, one share to my wife, Carol, the other per stirpes
to those of my issue who survive me. In making the distribution under this paragraph, if the
value of my real property located at 518 Park Avenue, New York, New York, as determined for
the purpose of the federal estate tax, is less than the share to which my son, Rusty, is entitled to
under this paragraph, I direct my Executor to distribute that property in kind to my son, Rusty,
in partial satisfaction of his legacy hereunder. If my wife predeceases me, her share shall be
distributed as if she had survived me and died intestate immediately thereafter as a resident of
the State of New York and as the owner of her share in the form of personalty. If my son,
Rusty, predeceases me, the provision for the distribution to him in kind of my Park Avenue real
property shall not take effect.
(6) Portion of residuary estate not to exceed specific sum
I give, devise, and bequeath to my son, Chester, the sum of $25,000 or one tenth of my
residuary estate, whichever is the lesser amount. All the rest of my residuary estate I give to the
Hays City Home for Crippled Children.
31
32
Form
CODICILS
Comments to Forms
A codicil is a testamentary instrument that amends or supplements a previously executed
Will. It must be executed with all the formalities required in the execution of a Will.
Codicils are deemed to be integral parts of Wills. The definition of Will includes any codicil
and thus the technical failure of a codicil may invalidate the entire Will in some jurisdictions.
The law of the state in which the Will and codicil were executed must therefore be thoroughly
searched. For example, where state law forbids a subscribing witness to be a legatee, this rule
will cause a legacy to lapse even if the faulty attestation related only to a codicil that did not
affect the legacy in question. The valid execution of a codicil is often deemed to be the reexecution of the original Will in the form in which it had been executed at the time the codicil
was executed.
Accordingly, no codicils should be executed until the practitioner has ascertained the proper
form of attestation. The execution of a codicil does not merely change the disposition of the
decedent’s assets - it may defeat the testator’s entire testamentary plan if not properly drawn and
executed.
The following provisions on this form indicate several types of changes that can be made by
a codicil. Provision (1) makes several brief changes to various paragraphs in the testator’s Will.
Provision (2) shows the wording of an introductory clause to a second codicil. Provisions (3)
and (4) of this form give examples of a revocation and a substitution, respectively, of particular
paragraphs in the testator’s Will. These provisions should be used with an introductory clause as
in provision (1) of this form. Note that in all these provisions, the date of execution of the Will
that is being modified is stated immediately. Subsequent codicils should also indicate the dates
of prior codicils.
FORMS
(1) First codicil
I, Robert E. Hogan, of Waterbury, Connecticut, declare this to be the first codicil to my Will
dated September 17, 1965.
1. I revoke all the provisions of paragraph ______ of my Will dated September 17,
1965, as if that paragraph has not been incorporated in it, and I direct that the
property referred to in it be disposed of as part of my residuary estate.
33
2. I amend paragraph ______ of my Will dated September 17, 1965, by substituting the
sum of $2,000 for the sum of $1,000 in the bequest to my brother Ivan.
3. I amend paragraph ______ of my Will dated September 17, 1965, by substituting
Hilda Valdis as the beneficiary in it, in place of her mother, Helga Valdis, who has
since died.
4. As amended by this codicil, I hereby ratify, confirm, and republish my Will dated
September 17, 1965.
In witness whereof I have set my hand and seal on July 4, 1971.
________________________
Robert E. Hogan
[Attestation clause]
(2) Second codicil
[If the instrument is not the first codicil to the subject Will, the following language could be
substituted at the beginning of the new document]
I, Elliott Stabler, of New York, New York, declare this to be a second codicil to my Will
executed on September 20, 1999, to which I previously added a first codicil executed on May
16, 2006.
(3) Revocation of particular paragraph by codicil
I hereby revoke paragraph ______ of my Will dated October 20, 2000, which contains a
bequest of $1,000 to Olivia Benson.
(4) Substitution of paragraph by codicil
I hereby revoke paragraph 3 of my Will dated September 28, 2001, and substitute
therefore a new paragraph 3 which shall read as follows:
34
(5) Execution and attestation clauses to insert at end of codicil
In witness whereof I, Alexandra Cabot, sign my name to this codicil to my Will, on
September 14, 2007.
_____________________________
Alexandra Cabot
On September 25, 2007, Alexandra Cabot declared to us, the undersigned, that the
foregoing instrument was a first codicil to her Will dated October 20, 2000, and she requested
us to act as witnesses to it and to her signature thereon. She thereupon signed the codicil in our
presence, and we, at her request and in her presence, and in the presence of each other, hereunto
subscribed our names as witnesses.
_____________________________
John Munch
residing at 718 Delaware Avenue
New York, New York.
_____________________________
Fin Tutuola
residing at 1003 Rockefeller Street
Riverdale, New York.
_____________________________
George Huang
residing at 182 18th Street
New York, New York.
35
36
Form
SIMULTANEOUS DEATH, COMMON DISASTER, TIME,
AND SURVIVORSHIP CLAUSES
Comments to Forms
Simultaneous death provision:
Attorneys should be aware of the provision supplied by the Uniform Simultaneous Death
Act, which has been adopted by a majority of the states and which reflects the common law rule.
In states where this provision is effective, the testator is presumed to have survived the
beneficiary if both die in circumstances where there is not sufficient evidence that the deaths
have been other than simultaneous. Thus, when survivorship cannot be established, the bequest
will not be honored and any alternative bequest will become effective. The reason that the
testator is deemed to have survived in such circumstances is that the presumption avoids a
possible second estate tax at the legatee’s simultaneous death. In states that provide a statutory
presumption of the testator’s survival, a provision in the will to that effect is not necessary,
although it does no harm to reaffirm the presumption. See provisions (1) through (3) of this
form.
The testator is also free to vary the state law presumption and provide for a beneficiary’s
survival when the order of death cannot be determined (see provision (4) of this form). This is
rarely done except in regard to spousal bequests. If the testator is deemed to have died first,
property can pass to the other spouse tax-free because of the marital deduction. Then, there can
be a second transfer that is sheltered from taxation by that spouse’s unified credit. This plan is
beneficial if the surviving spouse’s credit would not otherwise be utilized. See provision (5) of
this form. On the other hand, the testator can provide that he is presumed to survive the spouse
when the order of death cannot be determined (see provision (6) of this form).
Simultaneous death provisions do not have to involve the testator. The testator may
specify a presumption as to the order of death among beneficiaries when it is unclear which
beneficiary died first (see provisions (7) through (9) of this form). A presumption of survival
between the testator and all beneficiaries, and then among those beneficiaries can be addressed
in one Will provision (see provision (10) of this form).
Time clause:
The drafter may use a “time clause,” where the right to inherit under the Will depends
upon the beneficiary’s survival for a designated period of time after the death of the testator.
There are several reasons for the use of this type of clause: to avoid litigation in
determining that the deaths were other than simultaneous, to bar a devise or bequest to a
beneficiary who does not live long enough to enjoy it, or to maintain some control by the
testator over the ultimate disposition of property in the event that the primary beneficiary dies
shortly after the testator. For example, Husband’s Will leaves everything to Wife
37
and alternatively to his two children from a previous marriage if Wife predeceases him. After
the will’s execution, Husband and Wife are involved in a auto accident. Husband dies instantly;
Wife dies from her injuries fourteen days later. Absent a contrary “survivorship” clause, Wife’s
heirs (e.g. her own children from a previous marriage) would end up with all of Husband’s
property, and Husband’s children would get nothing. This is because Wife “survived” Husband
(albeit for only a few days), and thus Wife’s recent “inheritance” from Husband was part of her
own estate when she died a few days later. Thus, the time provision may also avoid the expense
of administering the property in the estate of the beneficiary. (See samples of time clauses in
provisions (11) through (17) of this form).
If the testator is concerned either with the enjoyment of the property by the beneficiary
or with the possibility of having the property pass to undesirable beneficiaries, the testator may
prefer to establish a trust for the life of the beneficiary with designated remainder owners. In
some states the time clause may raise a possibility of a violation of the state defined law against
perpetuities.
Common disaster provision:
A common disaster provision makes the cause of the beneficiary’s death, as
distinguished from the time of death, determine the beneficiary’s right to the property. For
example, a clause may provide that the beneficiary shall be presumed to have predeceased the
testator if the beneficiary dies “as a result of” a common disaster or accident with the testator.
See provisions (1), (2), (3) and (18) of this form. This type of clause should be used with great
caution for death “as a result of” an accident may occur long after the testator’s death, and the
difficulty of determining the causal relation may itself raise many factual difficulties. A
common disaster clause may therefore unduly complicate and delay the administration of an
estate.
FORMS
(1) Presumption of testator’s survival – simultaneous deaths, common disaster, or absence of
proof
No person shall be deemed to have survived me who shall have died at the same time as I, or
in a common disaster with me, or in circumstances that make it difficult or impossible to
determine who died first, and I direct that all the provisions of this Will shall be construed in
accordance with that assumption and upon that basis.
(2) Presumption of testator’s survival – common disaster and absence of proof
If any beneficiary or beneficiaries under this Will shall die with me in a common accident or
disaster and in circumstances that shall render it difficult to determine which of us died first, I
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direct that I shall be deemed to have survived the beneficiary or beneficiaries and that this will
shall be so construed.
(3) Presumption of testator’s survival – common disaster
If any person dies with me in a common disaster, and if that person is required to survive me
in order to take property under this Will, then the property shall vest as if the person had
predeceased me.
(4) Presumption of beneficiary’s survival
If any beneficiary under this Will shall die with me under circumstances that shall render it
difficult to determine which of us died first, I direct that this Will shall be construed as if the
beneficiary had survived me.
(5) Presumption of spouse’s survival
If my wife and I shall die simultaneously, or in circumstances that make it difficult to
determine which of us died first, I direct that my wife shall be deemed to have survived me for
the purpose of this will, and I direct further that the provisions of this will shall be construed
upon that assumption, irrespective of any provisions of law establishing a contrary presumption
or requiring survivorship for a fixed period as a condition of taking property by inheritance.
(6) Presumption of spouse’s prior death
If my wife and I should die simultaneously or in circumstances that make it difficult to
determine which of us died first, I direct that my wife shall be deemed to have predeceased me
for the purpose of this Will, and that the provisions of this Will shall be construed upon that
assumption and basis.
(7) Presumption of prior death as between beneficiaries
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If any person shall be required to survive any other person in order to take an interest under
this Will, the former shall not be deemed to have survived if he and the other person shall die in
a common disaster, in circumstances that make it difficult to determine who died first.
(8) Presumption of survival of income beneficiary – simultaneous deaths
If any beneficiary under my Will shall die with any person then entitled to receive trust
income hereunder, in circumstances that render it difficult to determine which died first, I direct
that such beneficiary shall be conclusively deemed not to have survived the person entitled to
trust income.
(9) Presumption of survival of income beneficiary – deaths in common disaster or simultaneous
deaths
No person, other than myself, shall be deemed to have survived an income beneficiary of a
trust established by this Will who shall die at the same time as the income beneficiary, or in a
common disaster with the income beneficiary, or in circumstances which make it difficult to
determine who died first.
(10) Presumption of survival of testator – presumption of survival among all beneficiaries
No person shall be deemed to have survived me who shall die at the same time as I, or in a
common accident or disaster with me, or in any circumstances that make it difficult or
impossible to determine who died first. If the right of any legatee, devisee, life tenant,
beneficiary, remainderman, or appointee to take under this Will, successively or alternatively, is
conditioned upon his survivorship, and he shall die at the same time as, or in a common accident
or disaster with, a person whose death under the terms of this Will determines such successive
or alternative interest, or in circumstances that make it difficult or impossible to determine who
died first, then the legatee, devisee, life tenant, beneficiary, remainderman, or appointee shall be
deemed to have died first.
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(11) Time clause – survival of testator and beneficiaries
For the purpose of construing the provisions of this Will, I direct that a person shall not be
deemed to survive me if that person dies within 90 days after my death, nor to survive another
beneficiary if that person dies within 60 days after the death of the other beneficiary.
(12) Time clause – beneficiary’s survival of testator
If any legatee, devisee, or appointee under this Will shall die within 30 days after my death,
he shall be deemed to have predeceased me, and I direct that all the provisions of this Will shall
be construed upon that assumption.
(13) Time clause – possession during period
If any person shall die within 30 days after any other person, including me, such person shall
be deemed to have predeceased such other person for all purposes under this Will. This
paragraph shall not, however, deprive any legatee, devisee, or appointee of my estate of the
possession or enjoyment of property which he would otherwise be entitled to. This paragraph
shall be given effect only to the extent it does not violate any applicable rules against
perpetuities, or suspension of the power of alienation, or any other rule of law.
(14) Time clause – spouse’s survival for six months – life estate during period
If my wife shall die within six months after my death, she shall be deemed to have
predeceased me for all purposes under this Will. This paragraph shall not, however, deprive my
wife of the possession or enjoyment as a life tenant, for the portion of such six months during
which she survives me, of the property devised and bequeathed to her under this Will.
(15) Time clause excluding martial deduction gift
If my wife shall die within six months after my death, she shall be deemed to have survived
me for the purpose of the bequest made to her in paragraph ___of this Will, the so-called marital
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deduction bequest, but to have predeceased me with regard to all other bequests, devises, and
appointments otherwise made to her. During such portion of this six months’ period as my wife
in fact survives me, she shall have the right to the use and enjoyment, as a life tenant, of all
property in which her interest will fail by reason of her death within such period.
(16) Time clause for residuary estate
All the rest of my estate I give, bequeath, and devise to my wife, Carrie, if she survives me
and doe not die within 60 days after my death. If my wife does not survive me, or dies within
60 days after my death, the property passing under this paragraph shall be divided per stirpes
among those of my issue who are living at my death.
(17) Time clause as between income beneficiary and remainderman
If any person (other than myself) shall die within 60 days after the death of the income
beneficiary of any trust hereunder, such person shall be deemed to have predeceased such
income beneficiary.
(18) Deaths as result of common disaster
If my wife dies in or as a result of a common disaster causing her death and my death, she
shall be deemed to have predeceased me.
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