GORDON A. MacLEOD

Drawing Your Own Will*

In the past few months. I have noticed an increase in thenumber of advertisements for "Draw your own Will" kits.(The most recent was printed on a postage-stamp folder froma vending machine.) And as we all know, one of the mostpopular books of recent years contained rather detailed adviceon drawing your own Will. It occurs to me that if nonlawyerscan receive such great financial rewards dealing with a basic­ally legal subject, I, as a practicing attorney, should be able atleast to duplicate their success. Some may think it strange fora lawyer to write an article telling you how to draw your ownWill, but there are several good reasons for my decision.

First of all, there is my desire to be of assistance to myfellow man, regardless of any effect on my own income.Secondly, I expect the response to this article to be so favor­able that I will be asked to write a book, from which I willreceive substantial royalties. My final reason is that as morepeople draw their own Wills, I am sure there will be a corres­ponding increase in the number of Wills found invalid by theCourts. The Will-drafting fees lost by attorneys should beminimal compared to the fees resulting from litigation overthe estates of do-it-yourself decedents.

This last comment should not be discouraging. It is truethat drawing your own Will could result in large legal expenseafter your death. If there is any ambiguity in a WUl, or anyviolation of legal requirements, the relatives often delay thesettlement of the estate with costly litigation. But after all,

.. Reprinted from Trusts & Estates, February 1974. Copyright Com­munication Channels, Inc., 461 Eighth Avenue, New York, New York10001; 1974.

125 Volume 9 Number 2 Second Ouarter 1975

Drawing Your Own Will

you never claimed to be an expert in Will drafting, and theseexpenses occur after your death. The important point is tosave money now!

Actually, the fees lawyers charge for drawing Wills are notsubstantial. But if you add the dollars you can save by draw­ing your own Will to the money you can save in other ways,such as cutting your own hair or doing your own plumbing,you'll find it adds up to a fairly sizable amount.

Most lawyers will, of course, advise you that only anattorney should draw your Will, and that you should not tryto do it yourself. But why should an attorney be better quali­fied than you, just because he went to law school and has hada few years of practice? It's your Will, not his. In decidingwhether to draw your own Will, don't be influenced by anysympathy for the lawyer who'll lose the fee; as I have pointedout, a lawyer is likely to earn a much larger fee from a laterWill contest than from drawing your Will.

Now to cover some basic principles for de-it-yourself Wills.Most lawyer-drawn Wills are fairly lengthy and are full oflegal terminology and provisions for various contingenciesHundreds of legal books and articles have been written aboutthe simple subject of Will-drafting, and attorneys like toshow that they've read a few of them. Obviously you, as alayman, can't be expected to know how to use all this legallanguage, or to cover situations that probably won't happenanyway. Therefore, we'll eliminate the extra verbiage andplan a short, simple Will that you can write yourself.

One of the best examples of a simple Will that I've seenwas the one that read: "All to Mother." Brief, to the point,no legal mumbo-jumbo; this is the kind of Will we shouldall strive for. Unfortunately, in this particular case, thedeceased was survived not only by his mather, but also by awife who was always caIled "Mother." I understand therewas quite a bit of litigation, but that's beside the point. It wasa nice, short Will, and it would have been perfectly satis­factory nine times out of ten.

Getting back to your own situation, if you have a wife,you can just leave everything outright to her. (It should benoted that the female reader should, of course, read "wife"as "husband.") Your attorney would probably want you tospecify what happens if your wife isn't living at your death.This only complicates the Will, however, and if your wifedies first, you can always make a new Will. If there is a com­mon accident, or you die a short time after she does, youmay not have time to draw a new Will. But this risk is slight

126

The Journal of Creative Behavior

if you and your wife always take separate planes or busesand drive separate cars. The thing to do is draw a simple Will,and then spend as little time as possible with your wife tominimize the risk of a common accident.

I should point out that with our Simple Will, if your wifelives even an hour or two longer than you do, and you haveno children, all of your property will go to her relatives, andnone to your relatives. This should not disturb you, unless,of course, you tend to favor your own relatives over yourwife's.

Some lawyers, especially those who do a great deal ofWill drafting, will tell you that if you have a fairly largeestate, you should leave part of it in a trust for your wife'sbenefit. In an estate of $150,000 for example, about $16,000in federal taxes can be saved by using a trust. But trust Willsare hard to draw yourself, and the tax saving doesn't occuruntil your wife dies. Why pay a lawyer's fee for' a Will thatmight save a few thousand dollars on your wife's later death,but won't save a penny in taxes on your death. Only yourchildren will benefit from the tax saving, and we've all heardof cases where children were spoiled by inheriting too muchmoney.

Another thing wrong with trust Wills is that they takesome of the control away from your wife. If you use a trustand appoint a bank as trustee, your wife can have all theincome, and as much of the principal as she needs, but shedoesn't actually get the money in a lump sum. Your wife wasyour partner when you earned the money. If she wants tohelp her brother start his own business, or give the moneyto her second husband, she should have the right to do it,instead of having the funds tied up in a trust. As for invest­ing the money, even if she doesn't know as much aboutinvestments as a bank officer, she can always learn. Thereare plenty of people who will be more than happy to giveher advice on how to invest the money you leave her.

Attorneys also point out that if your widow ever becomesmentally unbalanced, a trust can take care of her without theneed for any Court proceeding. But in the unlikely event thatyour wife should lose her mental powers, there are ways tohandle the situation even if you haven't set up a trust in yourWill. All that's required is a Court proceeding in which psy­chiatrists demonstrate that she is incompetent. There may bea little more expense and inconvenience involved, and theperson the Court appoints to handle her funds may not be

.the one you would have chosen as Trustee, but at least your

127

Drawing Your Own Will

wife will be taken care of. If your children tell you they wantyou to have a trust Will to protect their mother, let them paya lawyer to draw your Will.

So let's forget about complicated trust Wills and keep ourssimple. If you really think you might not get a chance todraw a new Will after your wife's death, you can providethat if your wife dies first, your property goes to your chil­dren. That's the way it would go without a Will anyway.Here the lawyers try to make the Will more involved bysuggesting that you include provisions to protect minors. Butthese provisions take up two or three pages, and your childrenwill probably be adults when you die anyway. Even if they'readults, the Court will appoint a guardian to handle the moneyfor them. Your estate may have to pay for a bond, and therewill be some red tape involved in using the funds for thechildren, but again, we want a simple Will, not one of theselawyer documents that goes on for eight or ten pages.

So, there we have it - the do-it-yourself Will for themarried man with children: "1 leave everything to my wife or,if she is not living, to my children, in equal shares." Whatcould be simpler?

Some lawyers go one step further in trying to complicatematters by saying that it might not be a good idea to leaveyour estate "equally" to your children, especially if yourestate is small. If some of the children haven't finishedschool, the lawyers argue, it's not fair to give the sameamount to the ones whose education you've already paid for.These attorneys recommend holding the whole estate in onefund until the youngest has finished college, and then divid­ing what's left.

While this may be a good idea, it makes the Will much tooinvolved, and it takes a lawyer to draft these provisions. Aswe pointed out, you'll probably live until all the childrenhave finished college. If you don't, the older boys shouldrealize that helping their younger brother through school ismore worthwhile than spending their shares on luxuries forthemselves or their wives. Even if it turns out that one childdoesn't have enough money to finish school, at least some ofthe children will be college graduates, and we all know ofsuccessful businessmen who never went beyond the sixthgrade!

Some of you may hesitate to draw your own Will becauseyou've heard stories about homemade Wills that were upsetbecause of some legal technicality. Lawyers like to talk aboutcases in which Wills were judged ineffective as a result of

128

The Journal of Creative Behavior

"ambiguity" or the "widow's right of election" or "dower"or "rights of afterborn children" or the "rule against per­petuities" or "undue influence" or "improper execution."Even though such cases do occur, I am sure that there aremany' situations in which do-it-yourself Wills have beenfound to be perfectly valid.

Attorneys take great satisfaction, for example, in tellingabout the case of the homemade Will leaving everything to"my three daughters and their children." As I recall, onedaughter had five children, another had three and the thirdhad two. The daughter with five children claimed that theproperty should be divided into thirteen parts - one for eachdaughter and one for each of the ten grandchildren. Theother two daughters maintained that there should be onlythree shares - one for each family, regardless of the numberof children in the family. After some eight years of litigation,the matter was settled, but by this time, expenses had con­sumed about 90% of the estate.

Cases like these make interesting conversation when law­yers get together. On the other hand, there have undoubtedlybeen many homemade Wi:lls that have caused no problem atall. While you often read about explosions caused by peoplepouring gasoline on their barbecues, how often do you hearabout the man who has been lighting charcoal fires withgasoline for years and never had any difficulty? It's thesame thing with do-it-yourself Wills: you don't hear aboutthe ones that work out all right.

Let's examine another type of do-it-yourself Will. This oneis for the man without a wife or children. Here again we don'thave to get too involved. A simple Will for. a bachelor mightread as follows: "I leave everything 50% to Roger, 30% toWilliam and 20% to Janet." Incidentally, it's helpful to havethe percentages equal 100%. I was recently involved in anestate in which the percentages in the do-it-yourself Willtotaled 72%, and the various beneficiaries and relatives couldnot agree who got the extra 28%. Despite this slight errorin the Will, the estate was settled in less than three years, anda fairly large portion of the property was still left after theattorneys for all the interested parties were compensated fortheir time in Court.

You don't have to complicate the Will by saying whathappens if one of the beneficiaries dies before you do. If thelaw isn't clear, the beneficiaries and the relatives can hire theirown lawyers and the Court will decide what happens. (Someof these people could even argue their own cases instead of

129

Drawing Your Own Will

hiring attorneys, but this is a subject for another article.)Lawyers usually go into great detail about what happens if abeneficiary dies, so that these fights over the Will can beavoided. But again, iIt's a question of values. Do you want topay an attorney hard-earned money to draw your Will, justto save your estate the expense of a Court proceeding thatmay never occur? It's like hiring an electrician on the remotepossibility that the house may burn down if you do thewiring yourself.

There is a great deal more helpful advice that could begiven on drawing your own Will, but we've probably coveredthe basic principles. Besides, I want to save some materialfor my book. The important points in drawing your own Willcan be summarized as follows:

1. Be brief and cover only the contingencies likely tohappen. If something unusual occurs, such as a commonaccident, the Judge can" determine who gets your estate.

2. Don't worry about provisions for minors. Most peoplelive until their children are adults, and the grandchildren arenot your concern.

3. Don't try to avoid Estate taxes. It could be consideredunpatriotic and the taxes aren't paid until after you're goneanyway.

4. Avoid legal language. One reason an attorney useslegal phrases is that they have already been interpreted bythe Courts and have a clear meaning. But there's no reasonyou can't use your own words. You know what you mean. Ifyour beneficiaries are too stupid to figure it out, let them fightabout it in Court.

5. Don't hesitate to draw your own Will just because yourestate plan seems complicated. A lawyer would probablycharge more to draft a complex Will than a simple Will, sothe more difficult your estate problems seem to be, the moremoney you will save now by drawing your own Will.

One disadvantage to drawing your own Will is that pre­sumably you'll never learn whether or not you've done agood job. After reading this article, however, you should beable to draw a Will as well as the next man, except a lawyer,and he'll charge you a fee. You've built up your estatethrough your own hard work. Why pay a lawyer to tell youhow to give it away? Do it yourself. Some of the time, it willprobably work out all right; and if it doesn't, you won't bearound to worry about it.

Gorden A. MacLeod, member of the New York Bar.

130