San Diego Estate Planning Lawyer Blog
Clarity is important when drafting a last will and testament. Your executor must be able to understand your intentions with respect to the disposition of your estate. Likewise, the beneficiaries named in your will have a right to know what they are entitled to. When imprecise terminology is employed, it may lead to confusion, which in turn can lead to litigation.
Wife Ordered to Honor Husband’s Charitable Gifts
Here is a recent example from here in California. This case is only an illustration and not a definitive statement of the law. The deceased in this case made a last will and testament several months before his death in late 2010. The will named the decedent’s second wife as executor and directed she would receive the residue of his estate, including mutual funds, checking accounts, stocks, and so forth. The will also made gifts of “up to” certain specified amounts to the decedent’s first wife and various charitable organizations. For example, the will directed the executor to “leave up to $150,000 from the proceeds from my mutual funds, stocks, cash, and bonds to the [U]niversity of [C]olorado [S]chool of [B]usiness in [B]oulder.”
The second wife, acting as executor, argued these “up to” charitable gifts were in conflict with the provision leaving the residue of the estate to her. She proposed to only honor the gift of “up to” $800,000 to her late husband’s first wife, while keeping the remainder of the estate for herself. The second wife petitioned a California probate court for an order confirming this interpretation of the will. The named charitable beneficiaries understandably objected.
The court denied the petition and ruled in favor of the charities. The executor appealed, but the California Court of Appeal affirmed the probate court in a December 2015 decision. As the appeals court explained, the use of the words “up to” in describing the charitable gifts did not mean the executor had the choice of not honoring those bequests. Under that construction of the will, the court observed, “the provisions concerning the objectors would be effectively inoperative.” And as a matter of law, California courts must “give every expression” in a will “some effect.”
Had the decedent’s gifts to the charities merely been suggestions to the executor, he could have used language such as “I desire” or “I wish,” the court noted. As for the use of the words “up to,” the appeals court agreed with the charities and the probate judge this was most likely a reflection of the fact that much of the decedent’s estate consisted of mutual funds and other securities which “can go down in value.” In other words, the decedent’s gifts were only contingent on there being sufficient funds in the estate, not the executor’s discretion.
Need Help from an Estate Planning Lawyer?
Drafting a will is an important legal act that you should not attempt by yourself. An experienced San Diego estate planning attorney can advise you on preparing a will and other important legal documents. Contact the Law Office of Scott C. Soady today if you need to speak with an attorney right away.