Texas Will Drafting Errors to Avoid

Texas Will Drafting Errors to Avoid

YouKnowItAll.com

Course Purpose and Suitability

This course is designed to help lawyers draft Wills without errors. It may also help lawyers spot errors that have been made in Wills. The concepts in this course apply to all Wills, from the simplest to the most complicated.[1] This course is appropriate for beginning lawyers and for experts. In our complicated world, very little attention is given to the simple things. Continuing legal education for estate planning lawyers stresses complicated tax issues, but gives little time to the fundamentals of Will writing. This course covers errors made by lawyers with years of experience in prestigious firms as well as by experienced sole practitioners. Yes, experts make simple errors. Simple Wills often contain simple errors. Complicated Wills often contain both simple errors and complicated errors. Wills that contain errors are common. Wills that do not have errors are exceptional.

The errors in this course were encountered in Texas, but are applicable in all jurisdictions. The workshop section of this course happens to utilize Texas cases as teaching tools, but is suitable for lawyers from any jurisdiction. The section on Texas disciplinary rules and suits against lawyers examines Texas rules and law and is primarily of interest to Texas lawyers, though lawyers from other jurisdictions may find it interesting and useful.

Course Structure

This course consists of three distinct parts.

The first part is a review of specific errors the teacher encountered.

The second part is a workshop that examines provisions in Wills that have been probated and litigated. The workshop gives you the opportunity to spot errors, practice drafting your own language that avoids errors, and see how the courts construe the Wills. If you think you write Wills that can’t be misinterpreted, the workshop may cause you to reconsider. If you think Wills you draft are understandable and unambiguous, you will find that the proper test is whether all others, including the courts, will agree with your understanding.

The third part is a review of applicable Texas Disciplinary Rules of Professional Conduct and a case study of recent cases seeking damages from attorneys for alleged errors in estate planning. Where court opinions are quoted, there are three kinds of footnotes.

1. Some footnotes are footnotes by the court. They retain the court’s original number. Our footnote is a footnote to that number.

2. Some footnotes move citations to the footnotes to make the material more readable. The footnote Will have the court’s citations.

3. Some footnotes contain commentary by the author.

The Process

1. Study this text.

2. When you finish this text, go to www.YouKnowItAll.com to observe the discussion. There, you may choose to ask questions or make comments, or you may choose to just observe any discussion posted by others.

3. Keep track of your actual study hours and dates. After you complete your study, you certify your actual study hours at www.YouKnowItAll.com and you choose to whether to pay by check or credit card. Study time counts. Procedural and administrative time does not count. You receive credit for the actual study time you put in, based on your certification, up to the maximum for the course. Tuition is similar. If your actual study time is more than the maximum, your tuition is capped at the maximum. If your actual study time is less than the maximum, tuition is calculated based on your actual study time, at $20 per hour. Please certify your actual study time even if it is above the maximum. This allows us to better calibrate our courses, and helps the MCLE regulators recognize the real time you spend in your study.

4. YouKnowItAll.com provides a certificate of your attendance with the course name, course number, and the CLE credit hours you earned. If you are in the Texas bar, we report your credit to the State Bar of Texas. If you are in another bar and need something else, let us know.

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This course includes a case study which relies on the words of the courts which are quoted so that you may read them yourself. The teacher has selected quotations, deleted original emphasis, added the authors emphasis, and moved citations to footnotes. Commentary by the teacher is included in the text and in footnotes. Five asterisks ( * * * * * ) identify each new case, If a case doesn’t interest you, just search for * * * * * to find the next one. This also helps if you wish to go back to reread a case.

There are three kinds of footnotes.

1. Footnotes by the court retain the court’s original number. Our footnote is a footnote to that number.

2. Footnotes that move citations to the footnotes are intended to make the material more readable. Our footnote has the court’s citations.

3. Footnotes that contain some of the author’s commentary.

If you read this course online, your browser will probably let you click on a footnote number to go to the footnote and click on the number in the footnote to return to the text. Some browsers will show the footnote if you hold your curser over the footnote number without clicking If you print the text, you may wish to staple the footnotes separately so you may easily refer to them. They are at the end because of technicalities of the internet. This is a Microsoft Word document displayed as a web page. You may copy it into a word processor to print it if you like. If you have any problems, let us know.

Optional Telephone Conference

The teacher is available for an optional personal telephone conference on the substance of this course. If you have a question about the application of the material in this course to a particular case, or would just like to visit about this topic, you may do so. A brief basic phone conference is $20 per course. If you would like to schedule a phone conference, email or call YouKnowItAll.com.

Table of Contents

Part 1. Errors and tips.

# 1. Changed Names

# 2. Similar or Identical Names

# 3. Names of charities and corporations

# 4. Math

# 5. Simultaneous Duplicate Original Wills

# 6 Gifts of Nonexistent Property

# 7 Gifts to dead people

# 8 Word Processing Errors

# 9. Cross references

#10 Cross References in Codicils

#11. Notwithstanding

#12. Just Debts and Just Desserts

Part 2. A Workshop on Will Drafting Errors and Avoiding Errors.

1. Definitions, Stepchildren, and Boilerplate.

[Based on Floyd v. Floyd, 813 S.W.2d 758 (Tex.App. - El Paso 1991)

2. Contents, Statutory Definitions.

[Based on Davis v. Shanks, 898 S. W. 285 (Tex. 1995) and court of appeals opinion at 911 S.W.2d 390 (Tex. App. - Texarkana 1994)]

3. Codicils, Details and Precision.

[Based on O’Malley v. Stratton, 831 S.W.2d 35, (Tex. App. - El Paso 1992)]

Part 3. Legal ethics, professional responsibility, and liability.

1. Selections from the Texas Disciplinary Rules of Professional Conduct.

2. Barcelo v. Elliot 927 S.W.2d 28 (Tex.App. - Houston [1st Dist.] 1995)

3. Barcelo v. Elliot 923 S.W.2d 575 (Tex. 1996)

4. Guest v. Cochran 993 S.W.2d 397 (Tex.App.-Houston [14th Dist.] 1999)

5. Arlitt v. Paterson 995 S.W.2d 713 (Tex.App.-San Antonio 1999)

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The Course Text

Texas Will Drafting Errors to Avoid

A Comment on Clear Writing

When writing a Will, good writing is simple writing. Simple writing is hard. It is easier to use more words, rather than fewer. More words provide more chances to err. Complications increase the chance of errors. Some complications are unavoidable. Some are not. Clear and direct writing is a key to avoiding errors.

Indirect, dense, complicated writing creates three kinds of problems.

1. Errors are more likely. There are more opportunities for errors. The language and concepts are more difficult.

2. Detecting errors is less likely. There are more words, more thoughts, and more twists and turns to examine for errors.

3. Reading dense language numbs the mind. Numb minds miss errors.

Simple writing becomes easier with practice. Practice it. It is easier to write correctly, when writing simply.

Simple writing has another effect. The testator[2] can understand simple writing. If the testator understands the words in the Will, the testator can point out errors. The errors can be corrected. Insecure lawyers find the concept of the client spotting an error scary. If the client sees an error, the lawyer may feel threatened. If the client doesn’t understand the words in the Will, the client can’t spot errors and the errors are not corrected. Thus, a complicated writing style protects the lawyer’s ego, but preserves errors.

A lawyer’s first decision is whether to write the Will so the client can understand it. A lawyer must choose between eliminating errors, and obscuring errors. This course is for those who choose to eliminate errors.

Many Wills seem to be written without regard to whether the client can understand. The assumption is that the lawyer understands it. That is a dangerous assumption. If the client can’t understand the basic dispositions in the Will, the lawyer may not understand them. A lawyer who understands the substance of a Will should be able to write the Will so the testator understands it. A lawyer who can’t write clearly may not clearly understand the concepts. Length and complexity are the companions of errors. Length and complexity may obscure the fact that the lawyer who wrote the Will does not understand it.

If the client can’t understand the Will, who can understand it? Can a judge understand it? Can a jury of the testator’s peers understand it? Can an appellate court understand it? Can a plaintiff’s lawyer understand it? Can a plaintiff’s lawyer misconstrue it in favor of a client? Are you willing to find out? As shown by the cases in the workshop portion of this course, an appellate court may declare a Will “unambiguous.” If it is “unambiguous,” why is there litigation? What is clear to one person, or one court, may have a different meaning to another person, or another court. Each may believe that the Will is clear while disagreeing about what it means. Each may consider the Will “unambiguous,” yet disagree about the meaning.

This course is not focused on complicated writing. We primarily look at simple errors. But, as you review these simple errors, consider whether lawyers who make simple errors can be expected to write complicated language without errors.

Simple writing is the best training for writing complicated Will provisions. Clear, precise, correct writing is a learned art. It takes practice. A good way to learn is to go back to Wills you have written and rewrite a particular type of Will provision. For example, you might select specific bequests of a certain kind of property. See what you wrote in various Wills. Try writing it differently. Try simple words. Try fewer words. Diagram the effect of the words. Look for flaws. Look for ways it can be misconstrued. Think. Eliminate sloppy language and sloppy thinking. Learn to write with brevity and clarity. Ask other people with various backgrounds what the language you wrote means, and if it might have an alternative meaning. Draft model language for a particular kind of gift. Get it right, and use it in the future.

Part 1. Errors and tips.

Error #1. Names Change

Let’s start with a simple, true story. A famous Texas lawyer who was a name partner in a famous firm wrote a Will for a widow. The lawyer died. The widow died after the lawyer. Her Will named her daughter as a beneficiary. The daughter consulted with a lawyer. The daughter said that she knew that the words in the Will were not her mother’s words because her mother knew her name, and her last name was wrong in the Will. The Will contained a previous married name of the daughter who had divorced and remarried prior to the date of the Will. The daughter’s last name was wrong in the Will.

Since both the lawyer and testator were dead, we can only speculate about what happened. So, let’s speculate as follows:

1. First the lawyer, or another lawyer, wrote a Will for the mother which contained the daughter’s former name at a time when it was the daughter’s name.

2. The daughter divorced and remarried.

3. The mother asked the lawyer to write a new Will. The lawyer copied the name from the old Will. The lawyer failed to ask if the daughter’s name had changed, and didn’t know that it had changed.

4. The mother:

a. didn’t read the Will;

b. didn’t notice that the old incorrect name was used;

c. saw the error and didn’t want to pay the lawyer to correct it; or

d. saw the error but felt that it would be impolite to point out the error, and ask that it be corrected

5. The mother signed her Will with the error.

The result. The daughter’s feelings were seriously hurt. A Will contest was possible. The incorrect name could be considered evidence of lack of testamentary capacity.

The solution. Ask about names, including married names, before writing the Will. Ask if anyone has changed a name. Again ask about the names when the testator reviews the Will. Make it clear that you invite the testator to point out errors. Let the testator know that you make mistakes, and that part of the process is the testator reading the Will and pointing out errors so they can be corrected. Ask the testator to check the names to be sure they are spelled right and are the current names.

Names matter. How would you feel if your mother, in her Will, refers to you by the wrong name, or misspells your name? Be careful and sensitive. Feelings matter. Names matter.

Error #2. Similar or Identical Names

Ask if more than one person in the family has the same name. For instance, there may be more than one George Foreman in the family. If so, you may specify which one is named. For example, “my brother George’s son, George Foreman” should be clear unless George Foreman had two sons named George Foreman or the testator has two brothers named George who each have a son named George. Be as specific as necessary to leave no doubt about the person named. No more is necessary. No less is adequate. Be careful. Be sure that one and only one is named. For instance, a gift to George Bush might be to George H. W. Bush, George W. Bush, or George P. Bush. If you say President George Bush, be sure there is only one such person. If there is both a current President and former President with the same name, greater specificity is required. The key is care. Think about this potential error. Ask for the information. Write with care.

Error #3. Names of charities and corporations

Names of charities are a high risk. There are two problems. First, is the name the correct one for the charity? Some have similar names. Some go by a more casual name. Be sure you know the real name of the correct charity. You may wish to include other identification, such as the address where the charity is currently located. Be careful. You may create problems instead of solving them.

Second, there is a subtle risk. You may have the right charity, but the wrong language to achieve a particular goal. A gift to the Salvation Army is an example. Who receives a gift to the Salvation Army? If you think the answer is apparent, you haven’t dealt with the complexity of the issue. If a client wishes to give to the Salvation Army, ask what they wish to have the gift used for, and where they want it used. Is it to be used locally, regionally, nationally, or internationally? Is it targeted for a specific function? Your client may not have thought about it. This is their Will. They must decide. Your role is to understand the issues and draft the Will correctly to reflect the client’s desire. In the case of the Salvation Army, the precise wording of the gift determines where the money goes. The Salvation Army considers certain wording to be a “term of art” that earmarks the gift for a specific geographic area and purpose. Do not assume that you can write language that will achieve your client’s goals when a charity is involved. Ask the charity. If it is the Salvation Army, ask the Salvation Army for a written statement of the wording that it construes as giving the money to the local, regional, national, or international entities. Ask them what wording earmarks the money for specific purposes. Be sure you are getting the correct information from someone who knows the correct answer and is thinking clearly. A written answer may be the best, and offers you some protection if it is wrong. A casual answer may be wrong. Writing your own language without guidance from the charity risks error.

Names of corporations are also tricky. If you refer to one, be sure the name is correct. This applies to corporate fiduciaries and corporations mentioned in gifts. The technical name and the commonly used name may not be the same.

Error #4. Math

If your Will requires calculations, check the math, but do it carefully. Some lawyers are mathematically challenged. Some are just careless. Don’t assume that you state mathematical concepts correctly.

For example, a former IRS estate tax attorney, who audited estate tax returns for the IRS, went into private practice. He wrote a Will that contained verbose and hypertechnical tax provisions. The Will also contained a residuary provision intended to give away 100% of the residue through gifts of various percentages to various charities. In separate consecutive gifts the Will gave:

· 10% of the residue of the estate to charity A.

· 15% of the residue of the estate to charity B.

· 25% of the residue of the estate to charity C.

· 50% of the residue of the estate to charity D.

What is the result? The percentages total 100%. Was 100% of the residue given? No. The way the Will was phrased created a different result. To do the math, let’s assume that the residue is $100.

1. 10% of the residue of the estate is given to charity A. That is $10. 90% of the residue of the estate remains. That is $90. Then…

2. 15% of the residue of the estate is given to charity B. That is $13.50. 85% of the residue of the estate remains. That is $76.50 [The residue was $90. 15% of $90 is $13.50. 85% of $90 is $76.50] Then…

3. 25% of the residue of the estate is given to charity C. That is $19.125. 75% of the residue of the estate remains. That is $57.375 [The residue was $76.50. 25% of $76.50 is $19.125. 85% of $76.50 is $57.375] Then…

4. 50% of the residue of the estate is given to charity D. That is $28.6875. 50% of the residue of the estate remains. That is $28.6875 [The residue is $28.6875.]

5. $28.6875 remains. That is 28.6875% of the original residue. There was no gift of this 28.6875%.

What was the actual result? There wasn’t one. The testator did not die. A new Will was written.

What would the result have been? We don’t know. The intent might have been easy to guess, or the heirs and charities agreeable enough, to allow the actual words to be twisted (the courts say, “construed”) to give percentages of the original residue, as actually intended. However, that is not what the Will said. Construction of a Will should be based on the Will as written, not on speculation of what the testator should have written. Regardless of the outcome, considerable expense might be incurred examining and litigating the issue. The fact that this is a drafting error is clear on its face, with whatever implications that has for the lawyer.

A Tip. Tax issues can be complicated. Gifts of the residue to charity can be relatively simple. Get the simple things right. Lawyers often are mesmerized by the tax issues and neglect the basics. If the Will doesn’t give the property to the correct beneficiaries, what does that say about the Will? Does a technically brilliant two page tax motivated provision make a Will a good Will if the estate doesn’t go to the right people? Consider this principle: A well written Will gives the right property to the right people. How many times do the most elaborately written Wills fail to do so? What share of an estate planning lawyer’s time is spent on tax issues? What share is spent on giving the right property to the right people? Don’t neglect that critical area.

Error #5. Simultaneous Duplicate Original Wills

Duplicate original Wills are an error. Execute one Will. Make copies as needed. Don’t confuse the two concepts of an original and a copy. Don’t make copies that are indistinguishable from the original.

Duplicate original Wills are multiple originally executed Wills. Each is identical. Each is executed with the formalities of a Will.

What is the problem? The issues are rather involved. Some background is required. We begin with the concept that the testator may revoke a Will by destroying the Will with the intent of revoking it. What is the effect of the testator destroying one of the duplicate originals with the intent to revoke? What might happen if one or some, but not all, duplicate originals are destroyed? From there we move to the concept that a missing[3] Will may be deemed destroyed with the intent to revoke it. With that background, what is the problem with duplicate original Wills? Under Texas law, if a Will is executed in duplicate originals, all originals must be produced or their nonproduction explained. If any original is missing without explanation, the Will may be deemed revoked by destruction, or it may not, depending on the outcome of the litigation. The answer may differ in various states. The testator may move from one state to another. There may be choice of law issues that determine which state’s law will be applied. It is more complicated and troublesome that it may seem. [Texas “missing” or “lost” Wills are covered in other courses on YouKnowItAll.com]

Let’s turn to another true story. For decades, a Texas hill country lawyer executed Wills as duplicate originals. He believed multiple originals made it easier to locate one Will to probate. This belief is erroneous. Instead of only needing one original, all must be located or accounted for to avoid a missing Will issue. For decades, the lawyer applied to admit any one of the original Wills to probate without even acknowledging that duplicate original Wills existed. The judge didn’t know the law and admitted them to probate. No one knew the law. No one wondered whether any other original had been revoked by destruction. No one noticed the problem, until one day, another lawyer carefully read one of the Wills and saw that it specifically stated that the Will might be executed in multiple originals. Litigation ensued.

A Tip. Never execute duplicate original Wills. If advocating or contesting a Will, inquire about execution of duplicate originals.

Error # 6 Gifts of Nonexistent Property

and

Error #7 Gifts to dead people

Yes, this is a true story in which a Will gave nonexistent property to nonexistent people.[4] This story is about a Will and codicil written by a partner in one of the best known law firms in Texas. The Will of a single woman who had no descendants gave numerous specifically identified bank certificates of deposit to numerous specifically named relatives. Both the certificates of deposit and relatives existed when the Will was written. Later, some of the named beneficiaries died and all of the certificates of deposit were cashed with the proceeds invested in insurance company annuities. Still later, the same lawyer who wrote the Will wrote a codicil. The codicil revised an unrelated provision and republished the rest of the Will, including the gifts of the bank certificates of deposit, which no longer existed, to the named relatives, some of whom were dead.

A lawyer who writes a codicil for one purpose must find out if anything else has changed. What could be more obvious on its face than that a particular certificate of deposit may have been cashed or changed, and that a long list of relatives might include someone with the misfortune to die? How does a lawyer explain this error to the relatives after the testator’s death?

The lawyer also included a Will provision stating that the lawyer’s law firm would represent the estate, thus demonstrating that the lawyer who wrote the Will was lacking in ethics as well as competence. As you might expect, the executor chose another lawyer.

The story does not end there. Before reading the next paragraph, pause, close your eyes for a moment, and consider what other error could have happened. Here is a hint: What about the annuities?

Ah yes, the annuities. The helpful insurance agent who sold the annuities advised the purchaser that the best way to designate the beneficiaries is to name dead people as beneficiaries. Really. The agent explained that the fine print of the contract would take care of it. The agent believed that the contingent beneficiary provisions of the contract would pass the property to the descendants of the deceased beneficiary per stirpes. He concluded that naming dead people as beneficiaries was best. Actually, the contract contemplated that a named beneficiary, who was also alive when named, might die before the owner of the contract. It was not designed to cover designation of people that the owner knows are dead at the time the beneficiary designation is made. Although an annuity contract is not a Will, the issue is similar and the drafting solution is the same. Don’t name dead people as beneficiaries in Wills, trusts, insurance contracts, or other documents.

Error # 8 Word Processing Errors

Word processors are wonderful tools when used correctly, but they can be dangerous in the hands of lawyers. People have faith that word processing is correctly done. That isn’t always the case. Proofread. Read what the words actually say. You may be surprised. When a client reviews a draft of a Will, and asks the lawyer, “who is this person?” and the lawyer responds, “isn’t that your child?” there is a problem. If you electronically duplicate a Will of a prior client, and change the names to those of the new client, check to be sure that the names are all changed. The same is true of all of the variable information.

There is another variation of word processor errors. A copy and paste approach can be used. Read the result. Sometimes the result is amazing because the wrong thing is copied or it is pasted in the wrong place.

If you don’t spot the error, the client might. If the client doesn’t catch it, and executes the Will, you may have a big problem. Be careful.

Error #9. Cross references

Cross references are dangerous. It is harder to avoid errors if there are cross references. It is easy to lose track of the way different provisions interact. This is particularly true when one of the provisions is revised or deleted. It is easy to miss the effect of that change on another provision.

Error #10 Cross References in Codicils

Cross references from a codicil to a provision in a Will or prior codicil need special care. The workshop includes the Cynthia Monroe Will and codicil. When reviewing the Monroe Will, notice the complexity of multiple testamentary documents and multiple beneficiaries combined with the termination of an income interest when certain facts occur. Complicated documents have a high risk of simple errors.

Let’s look at another example of a cross reference that contains a simple error by a lawyer who later became the constitutional County Judge in a midsize Texas county.[5] The lawyer wrote a codicil which replaced a Will provision with a new provision.

The codicil referred to both the number of the article to be replaced and the page in the Will on which the article is located. The codicil said that Article III on page 5 is revoked.

Actually, Article III began on page 5 and ended on page 6. That raises a question. Is the whole article deleted, or just the portion on page 5?

The reference to page 5, without a reference to page 6, suggests that the only change is to page 5.

The reference to Article III, rather than to a portion of Article III, suggests that Article III is entirely revoked.

Either “Article III” or “the portion of Article III which is on page 5” was revoked.

Like most of the errors in this course, the solution is careful and precise thinking and writing, along with reading what is written to see if it could be misconstrued. Unnecessary words can cause problems. Simple and correct wording is the key.

A tip. When writing a codicil that revokes a numbered paragraph of the Will, check to be sure that there is only one paragraph with that number. For example, if you refer to the tenth paragraph in Article III because the paragraph is numbered “10,” check to see if it really is the 10th paragraph, and the only paragraph numbered “10.” Sometimes a number is skipped. Sometimes numbers are repeated. Misnumbering is an error that may not matter. However, when misnumbering is combined with cross references, errors abound. If you see the misnumbering you can deal with it. For instance, you can revoke “the eleventh paragraph which is misnumbered as ‘paragraph 10’ in the second Article which is misnumbered ‘Article III’;” you can quote the paragraph being revoked; or you can write a new Will instead of a codicil. The key is to notice the error and avoid compounding it.

Error #11. Notwithstanding

Sometimes it appears that the writer of a Will is totally lost. The phrase “notwithstanding any other provisions of this Will…” suggests that the writer has no idea if there are other are inconsistent provisions. If the phrase is used frequently, there may be inconsistent provisions that attempt to cancel each other. This kind of provision should not be required if the drafter understands the Will. It is a symptom of poor writing. A well written Will should be consistent and should not need a “notwithstanding” provision.

Error #12. Just Debts and Just Desserts

Many Wills direct the executor to pay “just debts.” What is a “just” debt? What is an “unjust” debt? If there is no Will provision related to debts, debts must be paid if the law requires. What is the purpose of the provision for payment of debts? What is the advantage of saying “just debts?” The testator can’t exclude creditors by saying that creditors shall not be paid. The testator can direct that a debt that is not legally enforceable must be paid. Does the phrase “just debts” require that an unenforceable, but “just,” debt must be paid? If not, what does it mean? Is there a purpose for the word “just?”

A provision to pay “just debts” is a classic error. The phrase has a nice ring to it. That is the only merit of the word “just.” It is not useful. It may cause problems. It is not necessary. Don’t use the term “just debts.”

The same analysis applies to “just desserts.” A Will might give someone “dessert” but can’t give a person their “just desserts.”

A Tip. To write a Will that is just, just don’t use the word “just.”

Part 2. A Workshop on Will Drafting Errors and Avoiding Errors.

If you believe it is easy to draft Wills that are understood by the courts, the workshop portion of this course may cause you to reconsider. The workshop reviews three probated and litigated Wills. In the workshop we discuss the Wills, ask questions, and make comments and suggestions to give you the opportunity to pick apart the Will and court opinions. Then, we examine the court’s construction of the Will. There are numerous opportunities for you to try writing language that you believe works better than the language in the litigated Wills. You can also form your own opinion of the merits of the cases and acumen of the courts. We hope that you gain an appreciation of the problems that arise when the courts confront conflicting interpretations of a Will.

The questions and your answers are for your benefit. There are no grades, other than the grades you give yourself. You are not required to turn in your work. You have the opportunity to make comments in the Discussion. Hopefully, the workshop will stimulate discussion.

Workshop Case #1. Definitions, Stepchildren, and Boilerplate.

[Based on Floyd v. Floyd, 813 S.W.2d 758 (Tex.App.--El Paso 1991, writ denied)[6]]

Jay Floyd’s Will was written by an estate planning specialist in a large well known Texas law firm. The Will contains “defined terms” which are defined in a section that contained definitions. The definitions appear to be the kind that are drafted in advance and repeatedly used by the lawyer who wrote this Will. The defined terms are used for the designation of beneficiaries in the dispositive provisions. Presumably the lawyer knew what the words were defined to mean and relied on the definitions to achieve the intended result. Presumably, the lawyer informs the client of the definitions and their impact on who gets the estate. The definitions state:

"4.1 For purposes of this Will and any Trust created hereunder: . . .

"(D) The term "child" or "children" shall refer only to legitimate sons and daughters of the person in question. The term "issue" shall include legitimate lineal descendants of the first, second or any other degree of the person in question. The term "heirs" shall refer to those persons who would inherit the property in question from the person in question, assuming that the person in question had died intestate. . . . The terms defined in this Paragraph shall refer, wherever appropriate, to those who are legally adopted, whenever adopted, but shall not refer to stepchildren, unless legally adopted."

Workshop questions: [It is best to approach this workshop like a mystery novel in which you analyze clues even before you know the plot. Some questions may seem strange. They have a purpose, which may become apparent later.]

1. Is the phrase, “person in question” clear?

2. “Person in question” is not a phrase used by the average person. Was it suggested by the testator, or written by the lawyer as a standard phrase? Can you rewrite the definition without that phrase? Would the definition work if the words “of the person in question” were omitted?[7]