Will Drafting Errors to Avoid

Will Drafting Errors to Avoid
© A. Hawkins 2000
CLE Course Provider
youknowitall.com

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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)]

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.

This course consists of two parts. The first part is a review of specific errors the teacher has 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.

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 chance of errors. Complications increase the chance of errors. Some complications are unavoidable. Some are not. Clear and direct writing is a key to avoiding errors.

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

2. Detecting errors is less likely, because there are more words, more thoughts, and more twists and turns to examine for 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 it. 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 we will see from 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.

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 the will was not her mother’s because her mother knew her name, and her last name was wrong in the will. The will contained a prior married name of the daughter who had divorced and remarried prior to the date of 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.

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.

The result was a daughter with seriously hurt feelings and a possible will contest. 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 spells it wrong even if there is a reason why she got it wrong? Be careful and sensitive. Feelings matter. Names matter.

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 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.

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. An example is the Salvation Army. 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. You must 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 will allow targeting 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.

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 lawyer who used to be an estate tax attorney auditing estate tax returns for the IRS went into private practice. He wrote a will. It 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:

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 enough to guess, or the heirs agreeable enough, to allow the actual words to be twisted, or as 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,[3] 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 it was 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.

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. From there we move to the concept that a missing[4] will may be deemed destroyed with the intent to revoke it.[5] 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 is a “missing will” which may be deemed revoked by destruction.

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 missing will status. 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 noticed the problem, until one day, another lawyer carefully read one of his wills and saw that it stated that it might be executed in multiple originals. Litigation ensued.

A Tip. Never execute duplicate original wills. If contesting probate, inquire about execution of duplicate originals.

Yes, this is a true story in which a will gave nonexistent property to nonexistent people.[6] 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 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 past this 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 might die before the owner of the contract. It was not designed to cover designation of people who are dead at the time the beneficiary designation is made. Although, an annuity contract is not a will, the issue is similar and the solution is the same. Don’t name dead people as beneficiaries, in wills, trusts, insurance contracts, or other documents.

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. It may be surprising. 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 were all changed. The same is true of all of the variable information.

There is another variation of word processor errors. A cut and paste approach can be used. Read the result. Sometimes the result is amazing as the wrong thing is cut or pasted.

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.

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.

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.[7] 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 begins on page 5 and ends 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 that 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 10^th 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.

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 out. If the author understands what is in the will, this kind of provision should not be required. It is a symptom of poor writing.

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 will 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 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.”

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 will 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 will gain an appreciation of the problems that arise when the courts confront conflicting interpretations of a will.

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 Group. 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)[8]]

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 definitional paragraph. The definitions appear to be 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:

"(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.]

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?[9]

4. Is the testator a “person in question” or does the phrase only refer to other people. To whom does it refer? Who is not included as a “person in question”?

5. Can you rewrite the definition with better wording than “person in question”?

6. Why isn’t “of the person in question” used in the last sentence for the person with stepchildren? Should it be used? Is the difference meaningful?

14. Do you think this language is always used by the lawyer, regardless of the number of children and sex of the children?

15. Are there any stepchildren? If so, how many are there, and what sex are they?

20. Would this language be used if there were any intent to benefit any unadopted stepchild?

21. Do facts outside the will affect your answers? For example, does your answer vary in any of the following hypothetical situations?

a. The testator is 35, married, has two children with a spouse, and has no stepchildren.

b. The testator is 35, married, has two children with a spouse, and has stepchildren.

d. The testator is 75, married, has one child with a spouse, and has stepchildren who were adopted 50 years ago.

e. The testator is 75, married, has one child with a spouse, and has one stepchild who was adopted 50 years ago and one stepchild who was never adopted.

f. The testator is 75, married, has one child with a spouse, and one stepchild who was never adopted.

Next, we turn to the dispositive provisions.[10] The dispositive provisions appear to be standard wording drafted in advance to be used in conjunction with the definitions of the words, “issue” “children” and “child” and “heirs.”

The intent of the dispositive provisions is to give the property to the testator’s issue, per stirpes.

A tip. Instead of making that gift in a straightforward way, the will, in 2.4, uses a backhanded approach to accomplish that goal. It makes a gift equally to the members of a class consisting of the “children of mine who survive me” unless a child dies with issue who survive the testator, in which case it starts over with an alternate disposition. This is dangerous drafting. Words like “unless,” “but” and “if” and “provided that” are indicators of a dangerous approach to drafting. Backing up and starting over compounds the possibility of errors. When you making a gift directly, without starting over, avoids compounding the risk. The go forward, back up, go forward, and back up drafting style is common and commonly creates errors. Avoid it. Follow this principle when drafting a will: always go forward, never backward.

(B) Upon the death of my wife, the then remaining Trust Estate, if any, shall pass as provided in Paragraph 2.4 or 2.6 hereof...

“2.4 If my wife predeceases me and any issue of mine survives me, I devise my residuary estate equally to the children of mine who survive me, or all to the survivor of them if only one of them survives me and none of those children who predecease me leave issue who survive me; provided that, if any child of mine predeceases me leaving any issue who survives me, the property to which such child would have been entitled if such child had survived me shall pass ... to such child's issue who survive me, per stirpes.

“2.6 If neither my wife nor any issue of mine survives me, I devise my residuary estate to my heirs.”

The will reads like a standardized document that is specifically written to benefit children, including adopted children, while excluding stepchildren who were not adopted. There is no indication from the language above that any of it was original writing for this particular will, unless the specific exclusion of unadopted stepchildren was added.

c. The will uses “children of mine.” It is far better to say “my children.”

At this point, from the will alone, do you know if the testator’s wife survived him and a trust was formed? No. A will never tells whether a spouse will survive the decedent, whether there will be a divorce prior to death, or whether there will be a disclaimer. It is necessary to consult evidence outside the will. That is called extrinsic evidence. Later, as you read the court’s analysis, remember that extrinsic evidence is always considered to determine the actual beneficiaries.

The provision governing the administration of the estate and trust include the following.

“3.1 I appoint my wife, JULIA M. FLOYD, and my sons, JAY H. FLOYD, JR. and ROBERT C. FLOYD, as Co-Independent Executors of this Will and my Estate....

“3.4 The appointment of the original Trustee and any substitute or successor Trustee of any Trust created hereunder is as follows:

“(A) I appoint my wife, JULIA M. FLOYD, and my sons, JAY H. FLOYD, JR. and ROBERT C. FLOYD, as Co-Trustees of any Trust created hereunder. . . .

“(H) Neither of my sons, JAY H. FLOYD, JR. and ROBERT C. FLOYD, nor any firm or partner with whom they are associated shall be disqualified from rendering professional services....”

There is one final relevant provision that is neither dispositive nor administrative. It was at the beginning of the will. It might be classified as introductory, although some construed it as a definition.

At this point, from the will alone, do you know the particular people who receive the residue of the estate when Julia dies? No. A will never tells whether a child is born or adopted after the will, whether a child survives the decedent, or whether there will be a disclaimer. You need to know those facts to determine which individual or individuals are beneficiaries. Again, it is necessary to consult extrinsic evidence to determine the actual beneficiaries, including the identity of the children who are alive at the death of the decedent.

3. Jay had one child, a son, Jay H. “Timber” Floyd, who was also Julia’s child.

8. As an adult, Robert Bacon, on his own, changed his name to Robert Floyd, the name as his mother, and stepfather.

In his will Jay referred to an unadopted stepchild as a “son” and as one of “my children.” Does Robert receive a child’s share even though he is not Jay’s child?

1. Declare the will inconsistent and ambiguous and look to extrinsic evidence to determine Jay’s intent.

2. Follow the clear dispositive language including the definitions that are a part of the dispositive plan. The estate goes to the only child. The introductory statement which referred to Robert as a child might be construed as recognizing Robert as a stepchild, or it might be construed as an error. The description of Robert as one of Jay’s children is inconsistent with the definition of the word “children.” Either the definition is erroneous or the reference is erroneous. [11]

3. Treat the introductory language as if it were an adoption or as if it were a definition of the word “children.” Disregard the actual definitions, as well as the specific exclusion of unadopted stepchildren. Call the definitions in the will “boilerplate” and read the will as if the definitions did not exist to avoid concluding that the will is inconsistent or ambiguous.

Those lawyers who use will forms with definitions and cross references may be surprised to learn that the court of appeals read the will as if those provisions did not exist or did not apply to the actual use of the defined terms. These definitions did not constitute a scintilla of evidence of testamentary intent. They could just as well have been written in invisible ink. Let’s see what the court had to say.

“When the will . . . is unambiguous, its proper construction is a question of law for the court to determine. . . .

“Timber [argues] that the evidence conclusively established that he is the sole beneficiary of the estate under the will because he was the only "child" of the testator, [he was] alive at the time of [Julia's] death, and . . . Robert was not a child of the testator within the definition of that word in the will, he was not and could not be a beneficiary.

“The parties having agreed that the will in question is unambiguous[12] (with which we also are in agreement), the cardinal principle and guiding objective in construing such a will is to ascertain the intention of the testator[13] in the disposition of his estate from the four corners of the instrument. The objective of the court's inquiry is to determine not what the testator meant to write, rather the meaning of the words actually used.[14] The intent must be drawn from the will, not the will from the intent. An unambiguous will must be construed based upon the express language used therein, not upon extrinsic evidence nor upon speculation or conjecture on what the testator may have intended.[15] On the other hand, extrinsic evidence of surrounding circumstances is admissible to assist the court in determining the sense in which words were used by the testator.[16] The entire instrument should be considered and all provisions should be harmonized, if possible. Where the general intent of the testator is clear from a consideration of the entire will, a particular provision that is inconsistent with that intent must be rejected or restricted in its application.[17] When separate clauses of a will conflict and cannot be reconciled, the last clause normally controls as the last expression of the testator's intention[18] but where one provision taken in context with the entire will predominates as the expression of the testator's intent, it ought to prevail over a subsidiary provision unless the latter was clearly or expressly intended to modify the former. And where there are two provisions that appear to be inconsistent, the specific will control over the general.[19] [20]

“Applying the foregoing general principles of will construction to the instant case, the intent of the testator is clear from a reading of the entire instrument and the words he used. There are no provisions that conflict unless resort is made to extrinsic evidence.[21] For the purposes of this will, Jay has made it clear that Timber and Robert are his two children. "My children are Jay H. Floyd, Jr. and Robert C. Floyd." Not only did he so define and designate the two named individuals as his children,[22] he referred to them both as his "sons" in three other provisions. In that connection, Jay named Robert along with Julia and Timber to serve as co-executors and co-trustees with the provision that anyone of the three can fulfill the duties if the other two are unable to serve. These provisions indicate an intention to treat all three persons on an equal basis.[23] He devised his residuary estate not to his "child" but "equally to the children of mine[24] who survive me[.]"[25] The question of whether Robert is a "legitimate son" or "legally adopted" under Section 4.1(D) is irrelevant as to him since he has previously been designated as one of Jay's two children. The provisions naming his children and sons are specific and are the predominant expression of his intention. The Section 4.1(D) definition of "children" is merely a general provision[26] that applies not to the testator[27] but to the "person in question."[28] Although Timber has asserted and stipulated that the provisions of the will are unambiguous,[29] he would have us create an ambiguity by going outside the will to consider evidence that Robert was never adopted.[30] Timber and Robert are not a part of a class since they have been specifically named as Jay's children and as such, are his issue and heirs for the purposes of the will.[31] Section 4.1(D) is readily harmonized with the other provisions of the will by interpreting it to apply only to unnamed children, heirs and issue, in which case it would only become relevant if either or both Timber and Robert had predeceased Jay.[32]

Even if we were permitted to go outside the four corners of the will to determine Robert's legal status and thus to create an ambiguity where none existed, the specific designation by the testator of his children would control over a general "boilerplate" definition of children, the use of which would be necessary to identify members of a class not otherwise specifically identified in the will. While going outside the will, we would also take note of the fact that Jay executed the will at the age of seventy-three years, a few months before his demise, at a time when he presumably knew he had only one legitimate son and child, not "children"[33] as expressed in the dispository provisions.

1. If you don’t intend to consider a stepchild a child, don’t call the person a child.

2. If you intend to give property to a stepchild, say so clearly, and consistently.

3. If a person is named as a fiduciary but not a beneficiary, does the designation as fiduciary suggest intent to make a gift?

4. If a testamentary trust is created with income to a spouse for life, does naming the spouse and all of the testator’s children as co-executors and co-trustees suggest that the testator intends to give stepchildren a share of the remainder? If no beneficial interest is intended, must the spouse’s children be avoided in fiduciary designations?

5. Should wills list family members? Some wills do. What is the purpose? What is the effect? Does reciting names nullify a class gift or other dispository pattern? What happens if a person is inadvertently omitted?

7. Does your will contain standard provisions? If so, will they be labeled “boilerplate” and given little or no effect. Can you specify that the standard provisions should be given effect? Would saying “I really mean it” matter? Would saying “this is not boilerplate” matter? Would it help to move the definitions to another place in the will, or to use bold type or a large print?

8. If a testator does not wish to benefit a stepchild, is it safe to refer to the stepchild as a son, daughter, or child in fiduciary designations or introductory language as long as the dispositive provisions are clear in their exclusion of stepchildren?

9. Is a gift to “children of mine” a class gift? Does it include stepchildren?

10.To what extent is does Floyd constitute precedent for construing will provisions? What is the precedent? May you rely on Floyd for assurance that, if you use a provision identical to one from the Floyd will, it will be construed as it was in Floyd? May you use such a provision without fear that it will be construed as it was in the Floyd case?

Two aspects of Floyd should concern all will estate planners. One is that the definitions of the key dispositive words were not followed. The second is that the opinion may affect construction of similar language in future cases. Texas courts might even conclude that, because of Floyd, testators should be presumed to know that definitions of key terms are just ‘boilerplate’ which has little or no effect. If that seems unlikely, see Workshop Case 3, below.

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

The year after Floyd, a panel that included two of the three judges who decided Floyd decided O’Malley. Justice Ward Koehler, the author of Floyd, authored O’Malley. O’Malley decided who was entitled to accrued but undistributed income of a trust when the income interest terminated. O’Malley shows the importance of writing wills that unambiguously cover all necessary issues. It involved a will and codicil. A new will might have been less likely to contain ambiguous or conflicting words. Codicils can be more difficult to write than a will. One problem with a codicil is that it is perceived to be easy. A lawyer may not spend enough time analyzing the interaction between the provisions of the will and codicil. As you read the opinion, consider the consequences of complicated writing.

In both O’Malley and Floyd, there were “diametrically opposite constructions” advocated by the parties, who each claim that the will unambiguously supports their position. The court treats these opposite positions as an agreement that the will is unambiguous. Yes, this court considers a will unambiguous because the parties totally disagreed on its construction, not because they agree on the meaning. That is absurd. A conclusion that a will is unambiguous should be based on the document. Parties can’t make an ambiguous will unambiguous by stipulating that the will is unambiguous. They certainly can’t do so by construing the will in diametrically opposite ways, with each arguing that the will unambiguously supports their position. How does a statement that one construction is unambiguously correct constitute a stipulation that the opposite is unambiguously correct? The court doesn’t say.

“B. An undivided one-sixth (1/6th) interest in all my residuary estate shall vest in my Trustees, hereinafter named, to be held in trust, managed, administered, distributed and delivered by my Trustees for the use and benefit of the following persons: (1) all income therefrom for the use and benefit of my sister, LENORE M. STRATTON for her life, and upon her death, all income therefrom for the use and benefit of my nephew, LEE M. STRATTON for his life, and (2) all the remainder thereof (other than the aforesaid life estate interests in income to LENORE M. STRATTON and LEE M. STRATTON, successively) for the use and benefit of CYNTHIA DAY STRATTON, JOANNA LENORE STRATTON and CLIFTON JAIRUS STRATTON, III, my great-neices [sic] and great-nephew, respectively, in equal shares.

“E. As used in this Will, "Trustees" means and includes both the Domiciliary Trustee hereinafter named and, the Texas Trustee hereinafter named. That is, such of my estate as is located in the State of Texas at the time of my death that is provided by this Will to be held in trust, shall be so held in trust and administered as provided by this Will by the Texas Trustee, and any other part of my estate provided by this Will to be held in trust by the Trustees shall be held by and administered by the Domiciliary Trustee. The two parts of my residuary estate (the Texas property held by the Texas Trustee, and the other property held by the Domiciliary Trustee) and the separate shares, divisions or trusts of each separate beneficiary in each of the aforesaid parts may be from time to time referred to herein collectively as my estate or the trust estate. Such references and all similar references herein, however, are for convenience only, as it is my intention and direction that the share or portion of my estate and of the trust estate held from time to time by each of the Trustees for the use and benefit of each separate beneficiary entitled to receive distributions of income or principal shall be a separate and distinct trust and shall be so held and so treated by the Trustees....

“Each of the trusts created under the provisions of this Will shall be held by the Trustees for the use and benefit of the beneficiaries of such trusts, and, after paying therefrom or making provision for the payment therefrom of all reasonable and necessary expenses and charges incident to such trusts, including the compensation due and payable to the Trustees, as herein provided, the Trustees shall distribute and deliver the trust property according to the following terms and conditions.

“A. The Trustees of the income trust for the use and benefit of LENORE M. STRATTON for her life, and the following income trust for the use and benefit of LEE M. STRATTON for his life, shall monthly pay over to or for such respective beneficiary, free of trust, all of the current net income actually received by the respective Trustees during the preceding month, and none of the provisions of [the] following paragraphs B, C and D shall be applicable to these income trusts.

“A. Except as hereinafter expressly provided, each trust hereunder shall continue until January 1, 1990, whereupon the respective trusts shall terminate and the Trustees shall distribute, deliver and pay over, absolutely and free of trust hereunder, to the beneficiary thereof, all of the Trust Estate then held in trust hereunder.

“B. Notwithstanding the provisions of paragraph A of this Article Fourth, the income trust provided in paragraph B of Article Third for the use and benefit of my sister, LENORE M. STRATTON, shall continue until the death of the said LENORE M. STRATTON or until January 1, 1990, whichever shall the earlier occur, and in the event of her death prior to January 1, 1990, the trust for her benefit shall terminate and any undistributed income which had accrued to such trust during her lifetime shall be treated as a part of the income received by the Trustees to be held, administered and distributed to the income trust for LEE M. STRATTON. The income trust hereunder for LEE M. STRATTON shall commence at the date of death of LENORE M. STRATTON, if prior to January 1, 1990, and shall continue until the death of LEE M. STRATTON or until January 1, 1990, whichever shall the earlier occur, and upon the termination thereof by reason of the death of LEE M. STRATTON prior to January 1, 1990, any undistributed income theretofore accruing shall thereupon become a part of the principal of the trust provided in said paragraph B for CYNTHIA DAY STRATTON, JOANNA LENORE STRATTON and CLIFTON JAIRUS STRATTON, III, or upon January 1, 1990, the income trusts hereunder shall in all things terminate and all of the Trust Estate subject thereto shall be distributed, delivered and paid over, absolutely and free of trust hereunder, unto CYNTHIA DAY STRATTON, JOANNA LENORE STRATTON and CLIFTON JAIRUS STRATTON, III, absolutely and in fee simple.”

“In a contest involving the construction of the provisions of a testamentary trust relating to ownership of accrued but undistributed income on the date of the termination of the trust, the trial court granted partial summary judgment in favor of the trust income beneficiary. The parties representing the remainder interest in the trust estate bring this appeal contending that the court erred in its construction of the will as a matter of law. We affirm.

“The last will [as amended by a codicil] of… Cynthia L. Monroe… created [a] trust … which devised one-sixth of the residuary estate to the designated trustee, with all income from such trust for [her] sister, Lenore M. Stratton, for her life, and upon her death, for the use and benefit of Lee M. Stratton, the testatrix' nephew…, [until his death or until January 1, 1990, whichever occurred first], the remainder to be divided in equal shares between Cynthia Day Stratton, Joanna Lenore Stratton and Clifton Jairus Stratton, III, the testatrix' great-nieces and great-nephew…..

“Lenore M. Stratton disclaimed her rights in the trust in 1976 shortly after the death of the testatrix and Appellee succeeded his mother as the sole income beneficiary of the trust. A dispute subsequently arose between the parties as to whether the Appellee as income beneficiary or the Appellants as remaindermen were entitled to oil and gas royalty income which was earned or accrued before January 1, 1990 but … paid … after January 1, 1990. Although Appellants and Appellee assert that the will, including the codicil, are unambiguous, they urge diametrically opposite interpretations of the will provisions relating to disposition of income which had accrued but was unpaid as of January 1, 1990. Specifically, Appellants insist that all accrued income not actually received before January 1, 1990 became or becomes part of the trust principal and must be turned over to them as the remaindermen. They rely primarily on language in paragraph Fourth B which relates to disposition of accrued, undistributed income in the event that the Appellee died prior to January 1, 1990: "[A]nd upon the termination thereof by reason of the death of LEE M. STRATTON prior to January 1, 1990, any undistributed income theretofore accruing shall thereupon become a part of the principal of the trust provided in said paragraph B for [the three Appellants], or upon January 1, 1990, the income trusts hereunder shall in all things terminate and all of the Trust Estate subject thereto shall be distributed, delivered and paid over, absolutely and free of trust hereunder, unto [the three Appellants]...." Appellants also argue that the provision in paragraph Fifth A requiring the trustee to pay monthly to the beneficiary "all of the current net income actually received by the respective Trustees during the preceding month, ..." shows that income not actually received prior t