President George Washington painted by G. Stuart, engraving by H.S. Sadd

At a recent symposium, the presenter described the almost magical way the father of our country turned his bequests of personal property into a legacy that lasted generations.

He described the portion of Washington’s Will that bequeathed his swords to his nephews.  Instead of a simple listing of the items and the recipients, he wrote the following words:

“To each of my Nephews, William Augustine Washington, George Lewis, George Steptoe Washington, Bushrod Washington, & Samuel Washington, I give one of the Swords or Cutteaux of which I may die possessed; and they are to chuse in the order they are named. These swords are accompanied with an injunction not to unsheath them for the purpose of shedding blood, except it be for self defence, or in defence of their Country & its rights; and in the latter case, to keep them unsheathed, and prefer falling with them in their hands, to the relinquishment thereof.” [Emphasis Added]

With those simple words he created a lasting legacy far more important than the value of the property bequeathed.  In a single sentence he defined his character and his hopes, dreams, and aspirations not only for his nephews, but for future generations yet unborn.  Imagine the honored place those swords must have taken in the lives and homes of the recipients and the lessons of freedom taught future generations.

I recently sat with a long time client who was grieving over the loss of his friend of over 50 years as we discussed what to do with his friend’s personal property which consisted of a lifetime of collecting crystal and works of art.  I explained his mundane choices as the executor of the estate of distributing the property to friends or relatives who treasured something from the decedent, keeping it for himself as a remembrance, or selling it.  We began discussing the value and the potential liquidation value.  Suddenly, the conversation turned very somber and my client slowly began telling me a story.  “Mark,” he said quietly, “I don’t want any of that stuff, I have my own stuff.”  He paused, lost in thought, and then continued.  “He loved that stuff.  I had no interest in it.  But he studied the prices at retail stores and then shopped at second hand stores.  He would find a piece he liked and he would carefully examine it.”  My client slowly demonstrated a shopper holding up a piece with his hands and he slowly turned the imaginary piece over and around as he examined it.  “He would often buy it for 20% of what it would have cost new.”  Between the words and the hand gestures, by the time he finished telling the story and composed himself, I knew what he intended to do with the collection that only a few moments before he had described as “just stuff.”

Our lives make a difference.  Many of us have an under developed appreciation for what we bring to the lives of those around us.  Your Last Will and Testament can be written in your own voice so that the value of what you leave reflects the value of who you are.  Contact me for more information about how to put your own voice into your estate plan and emulate George Washington in posterity.

The Will is invalid because the testator was incompetent. Competency is a complicated issue.  My friend Jay Polk has written a treatise that is more than 100 pages long describing the different tests for competency in different probate settings.  For a will to be valid, the maker of the Will called the “testator” must meet 3 tests:

1. The ability to know the nature and extent of his property;
2. The ability to know his relation to the persons who are the natural objects of his bounty and whose interests are affected by the terms of the instrument; and
3. The ability to understand the nature of the testamentary act.

This is fertile ground for disputes and must be determined on a case by case basis which is what makes such contests expensive.  Often a forensic geriatric psychologist testifies after reviewing the medical records, and treating physicians may be called to testify with varying degrees of success depending on the nature of their specialty and the degree of contact.  Lay witnesses and the nature of the Will itself may be important elements of proving a testator’s competence.  In the end it is a facts-and-circumstances decision for which very little assurance can be given at the beginning of the case; even in some of the more outrageous cases.

Undue influence was exerted on the testator. The second most popular reason for litigation is an allegation that someone exerted undue influence on the testator so that the Will does not represent the testator’s true intentions.  Any time property is not left strictly to bloodline descendants in equal shares, this issue may arise.  Expensive battles ensue over whom Mom loved best or who took care of Mom.  Just about any fact pattern can support a good faith belief of undue influence, but changes to an estate plan on a death bed or after entry into a care facility are particularly fertile fields for such claims.

The original Will cannot be found. This is not often asserted in Arizona because a copy of the Will can be admitted to probate if certain conditions proving its authenticity exist.  But it can lead to a full contested matter as to whether those conditions exist.

The Personal Representative is not fairly liquidating or distributing the assets of the testator. An increasingly common concern is that the person selected to administer and distribute the estate does not do so either in a timely or equitable manner.  Unlike the issues described above, this is an issue that arises only after the probate has been opened and the administration has not proceeded the way a distributee expected or desired.  Although efforts to remove the Personal Representative are common, those actions seldom end well for anybody and it is more common to get a court order compelling the Personal Representative to complete the work.

All of these issues could be avoided or minimized if the testator began early enough to make and update a plan, and kept all the distributees informed along the way.  Because disaffected relations are so common, the best prevention is to have a clear Will or trust that leaves little room for dispute, and name a Personal Representative whose loyalty and understanding of the complex family relationships is unquestioned.

Even in the best of circumstances, probate contests are inevitable and the best results are often obtained when the parties are reasonable, think about the result before engaging, and pursue a course that is likely in the end to be the most palatable to all litigants.  Otherwise, a full blown Will contest will be expensive and protracted.

I am frequently asked why I emphasize keeping estate plans updated.  There are actually two answers to this question; the standard answer, and a more practical reason.  Both answers are true, but one is much more personal.
The standard answer to why update your estate plan comes in five related parts:

1. Laws Change. Federal estate tax laws change with uncomfortable regularity, especially when a new president takes office. State laws affecting estates change much less frequently, but still often enough to need regular review.
2. Circumstances Change. You have more children or grandchildren, minors become adults, you have more or less wealth to distribute.  Life is constantly changing and your estate plan must change with it.
3. Financial Powers of Attorney Become Stale.  Somewhere between 6 months to 3 years is the standard shelf life of a financial power of attorney, and courts and banks are reluctant to accept them after that.  Even if nothing else has changed, your Power of Attorney should be signed regularly refreshed.
4. You May Move to a Different Jurisdiction. Different states have different laws. Moving from one state to another requires a review and update of your plan.
5. Attorneys Get Better.  Just like you, attorneys are constantly learning and improving.  The advice we gave you five years ago was good.  The advice we have for you now is better.

These are the standard reasons to update your estate plan.  But there’s a better practical reason that is quite different and much more personal — it has to do with family.  Few of us are lucky enough to have a family dynamic that is structurally and emotionally functional. I have met some couples of modest wealth, in their first marriage, with responsible adult children; but I have met more couples who are: in second marriages, with blended families, with one or more child with destructive habits or tendencies, or worried about a son or daughter in-law (the “outlaws”) whose motives conflict with our own values.  For these families, change will come swiftly and be overwhelming; frequent reviews and updates will ensure that your estate plan keeps up with these swift changes and continues to function as you intended — protecting you, your spouse, and all your children, even if it is sometimes from themselves.