Issues With Wills & Trusts

If a lawyer is asked to write a change to a Will--the legal term is codicil--many of us, including myself, think it the better practice to simply destroy the old Will and write a brand new Will. Why not have the entire Will in one document instead of in two or more? However, a codicil may be written. The validity of a codicil is subject to the same legal requirements of a Will. If a codicil is entirely written (no typing or printing), signed, and dated, it is a valid holographic document. Or a codicil can be typed up, and signed in the presence of two attesting witnesses and it will be valid. Problems arise if, say, Mom, takes her lawyer drafted will, has a fight with one of her children and crosses the child's name out of the Will or whites the child's name out. Or what if Mom handwrites in some changes. It is likely these changes are not going to meet the requirements of a proper Will or codicil. What if Mom whites out a specific bequest? Is this an invalid amendment or a partial destruction of the Will such that that bequest is revoked? We don't have any Nevada court decisions on that particular point.

The reason that Trusts have separate amendments written rather than simply re-writing the trust is that a trust is designed to hold title to property to avoid probate and other issues. Once a trust is funded, i.e., property is titled in the name of the trust, it would be burdensome to transfer property out of an old trust and into a new one. (The date of execution of a trust also identifies it as well the name. This is why the John and Mary Doe Family Trust dated 1/1/09 is legally a different entity than the John and Mary Doe Family Trust dated 1/1/12.)

A Will can look perfectly valid, but it can be challenged on various grounds, including that it is a fake or that it was revoked or that the testator was not mentally competent when he or she signed or on the grounds that a major beneficiary of the will used undue influence to get the testator to sign it.

View Will & Trust Contests for more information.

Occasionally it will happen that a parent will cut one adult child out of their Will. If there is a true estrangement, this often does not create a problem providing the Will is valid. But what if Mom has three adult children and each adult child thinks he or she gets along great with Mom. Then Mom greatly favors one child in her Will and Mom has not prepared the other children. I have seen this situation lead to some bitter fights, either over the validity of the Will or over the distribution of items in the Will. My suggestion in writing a Will or a trust is that if Mom wants to favor one child over the other, but not cut-off any child, Mom should give the favored child the additional property or money either before death or in an instrument separate from the trust or Will. In fact, if Mom knows that her estate plan will cause bitterness, perhaps, she should have her assets pass automatically on death to specific people by using pay on death accounts and transfer on death deeds. That makes it somewhat harder for the unhappy heir to launch a contest.

Of course, in some situations a Parent will leave unequally to adult children with the blessings of all involved because some adult children may have greater needs or less wealth than others.

Will Forms

Sometimes people are put off by the legal fees for a Will, often get a Will form online. Sometimes this works and sometimes it doesn't.

Problems arise when someone writes a will using a form they got off the internet that wasn't designed to conform to the law of Nevada or whatever state they were then resident in. Maybe there are witness signatures but the witnesses don't testify in an affidavit or under penalty of perjury that the testator appeared to be of sound mind and memory. Perhaps, this defect can be cured later with affidavits from the witnesses if they can be located. Or, perhaps, the witnesses can't be located and this defect may not be curable.

Suppose the Will writer (testator) signs and dates his signature May 1, 1999. Suppose one of the witnesses signs and dates his signature May 1, 1999, and a second witness signs and dates his signature May 5, 1999. This suggests that the May 5 witness did not witness the testator signing the will on May 1 and that therefore the Will is invalid. This would be especially true if the two witnesses had their signatures notarized on different dates.

Issues With DIY Wills

One problem that often comes up with DIY (Do it yourself) Wills is the witnessing. Unless the will qualifies as a holographic (handwritten Will) or an electronic Will (and the law on electronic Wills is unclear and untested) a Will to be valid needs to be witnessed by two competent adults who personally observe the testator (will writer) sign the Will. These witnesses should then state under penalty of perjury that they witnessed the testator sign the Will and the testator appeared competent and not acting under undue influence (see N.R.S. 133.040 for details) or their signatures stating that should be notarized and their statement should be in the form of an affidavit. In some DIY wills we get, the witnesses have merely signed without their statement meeting the requirements of an affidavit or declaration under penalty of perjury. If this is the case, the problem might be solved if the two witnesses can be located and if they will give affidavits meeting the requirements of N.R.S. 133.040. But, this can involve extra expense and time and if the witnesses are dead or can't be located or are uncooperative, the Will then fails.

Unusual Witnessing Problem Case:

An unusual witnessing problem arose with a DIY Will. The Will writer (Testator) was widowed and had had three children, one of whom died and left her own children. The Testator wanted to leave everything equally to his two surviving daughters and not provide for his grandchildren of his deceased daughter. He purchased a decent 2 page Will form. Item II stated:

"I give, devise, and bequeath the following real and personal property: If the Testator had written in "My entire estate," everything would have been fine. Instead he wrote in, "See attached of Page 3 of 3." On the second and last page of the Will form was the proper witnessing statement for two witnesses who signed and had their signatures notarized. This was on Page 2 at the bottom of which was written "Page 2 of 3." Then the handwritten third page listed the Testator's assets at the time he wrote the Will. The probate judge looked at the Will and decided that the handwritten page 3 was an essential part of the Will but since it came after the notary stamp he would not accept it unless someone produced 2 affidavits from people who knew the Testator's handwriting and could testify that it was his handwriting and that these people giving the affidavits were not inheriting under the Will.

The two competent adults who witness the signing of the will cannot be beneficiaries under the will.

Failed Wills

Sometimes if the Will fails and can't be "fixed" it doesn't make much difference. If Dad writes a defective will leaving everything in equal shares to his four children and Dad died unmarried and never had any other children, the inheritance will be the same with or without a Will. (In this case if none of the children are Nevada residents, but Dad was, without a Will any of the children will have to work with a Nevada resident Co-Administrator whereas with a will Dad could have appointed a non-resident adult child to serve as Executor.) However, if Dad is estranged from one of his adult children and cuts that child out of the will, then if the Will fails, all children will inherit equally.

Holographic (Written) Will

Wills come in two types. A holographic Will is a Will in which the signature, date and material provisions are in handwriting by the testator (person making the will). This is set forth in N.R.S. 133.090. A holographic Will can be on a scrap of paper and say simply, "I, John Doe, leave my entire estate to Mary Smith" followed by John Doe's signature and date. Of course, other interested parties might challenge this Will, for example, by arguing that the handwriting did not match other examples of John Doe's handwriting.

A requirement to admit such a holographic Will is that two people not inheriting under the will must give affidavits or declarations under penalty of perjury to the effect that they know the Will writer's handwriting and the Will is in his handwriting. In one case we had, the Will writer wrote his will entirely in his own handwriting and then went to a notary who notarized his signature. Although, the Court agreed it was a holographic Will the Court did not accept the notary signature and seal in place of two witnesses to the Will writer's handwriting. This didn't seem logical to us, but laws are laws and this illustrates the problems that can arise with DYI Wills.

But, if any material provisions are not in the testator's handwriting, then it is not a holographic Will.