Will Writing Reluctance

I have met many people who would benefit from having a will for their property, but do not as a result of a condition I call “Will Writing Reluctance.”  There are varying causes of this condition.  The most common cause is the “Forever Fallacy.”  This is based on the misconception that there is an infinite amount of time to make a will.  I confess I suffered from this.  I prepared a will, but did not sign it with witnesses.  One day I scheduled elective surgery requiring anesthesia.  I thought about my wife and son andthat whenever one has anesthesia, there is a possibility that something could go wrong and I would not wake up.  That was what it took for me to get the will signed and to give the original to my wife.  Many circumstances illustrate the Forever Fallacy.  Forever ends when there is a fatal accident. A crime can end Forever. Forever ends when one’s mental faculties become so eroded by Alzheimer’s disease or dementia that there is no longer the sound mind required to understand a will.  The Courts are full of legal challenges of wills of people who thought they had forever and waited too long. Forever ends when an addiction runs its course. I have been in a hospital at a will-signing for a person in the last throes of an addiction.  The cure for the Forever Fallacy is to use your imagination about the situation that will be faced by those left behind, and to empathize with them.

Some people worry about being “Jinxed.”  They fear that making a will hastens their death. I recommend they consult a spiritual adviser about this.  I have not seen any unexpected sudden death among people who make wills.
Will Writing Reluctance also results from “Attorney Aversion.”  I have had clients who had a bad experience with a prior attorney.  Their reluctance to see another one was understandable.  However, they had a misconception that all attorneys are the same.  There are reasonable attorneys, reasonable as to fees and reasonable to talk to.  A telephone call would help with this. Sometimes hiring an attorney now can save a lot of money that the inheritors would have to spend paying attorneys in the future, because some disputes can be avoided.  Speaking to more than one attorney before choosing one is common sense and can be reassuring.

Another cause of Will Writing Reluctance is thinking there is “Not Enough” property or “Not Enough” of a positive relationship.  When it comes to property, people with this condition may overlook that they do have something of value to leave for a friend or relative: personal property, which includes household property or jewelry, collectibles or books. Or they may be surprised by inheriting from somebody who dies before they do, by having a legal claim that is settled in their favor, or, in the case of creative people, leaving intellectual property. The bottom line is to discuss whether there is “Not Enough” with a trusted friend or adviser before making a decision to not have a will.  If there are “Not Enough” positive relationships for a will it is a warning of unhealthy isolation.  

In sum, whether you or somebody you know is suffering from Will Writing Reluctance, as described above, there is hope. #

Remarriage and the Spousal Elective Share


When there is a remarriage and a desire to leave most of the estate to the children from a prior marriage, the spousal elective share should be addressed.  A spouse may not be disinherited and is entitled to a “spousal elective share” of an estate, unless there is a valid waiver of that right.  When there is a will, it is the greater of $50,000 or the capital value of decedent’s net estate if it is less than $50,000, or one-third of the decedent’s net estate. (In addition to this share, there are New York law provisions that provide the surviving spouse limited specific property that is deemed to be "outside" of the estate).

Certain lifetime transactions specified by the statute are included in the net estate.  One example is gifts made within one year of death.  The value of those gifts is included in the net estate.  In an estate with multiple assets and transactions during lifetime, determination of the net estate can become complicated.  This is illustrated by the case of a joint bank account with both spouses’ name on it.  As a joint owner, the surviving spouse gets to keep the joint bank account.  However, fifty percent of that account is considered as an interest that passed directly from the decedent to the surviving spouse.  It is subtracted from the spouse’s net elective share.

A written waiver of the spousal elective share signed and acknowledged by the spouse can waive the right.  The waiver can be signed and acknowledged before the marriage in a prenuptial agreement, during the marriage, or after the marriage.  It should be part of an overall estate plan,  including a will or a trust as needed.  If the surviving spouse challenges the waiver , the court will scrutinize the waiver to ensure it was not obtained through undue and unfair advantage exercised by one spouse over the other.  A waiver should be prepared in a way to ensure the process is fair.#


Can I Change My Will?


Frequently I get questions about changing a Will.  Crossing out a line and adding a new one on one’s own original of the Will is not a valid and enforceable change.  The change was not done in the presence of the witnesses who signed the Will and attested to it.  

Before modern technology Wills were written by scribes, or, from the early industrial era until very recently, prepared on typewriters without memories. It was a bigger operation to rewrite or retype an entire Will than to prepare a separate document amending the will.  The law called this separate written document amending the Will a “codicil.” However, that law requires that the codicil satisfy the same formal requirements as the original will, including being signed before two witnesses. The codicil has to be clearly written to identify how it is altering the Will’s provisions and not revoking the Will.  Using a codicil also adds a risk because the codicil may be lost, leaving an unamended original Will in place.

For these reasons, most attorneys recommend that a new Will be prepared, rather than using a codicil. I recently had a client approach me about making a change in one part of her Will.  I recommended she give careful consideration to whether any other changes should be made, and making them all in a new Will.