How To Avoid Ambiguities And Other Problems In Your Will

It’s not uncommon for people to put off starting or finalizing their wills. It’s human nature to avoid thinking about disagreeable things, including how your estate will be settled once you’ve left this earth. However, what often happens when people find the motivation to tackle the estate planning process is that they move too quickly and make mistakes. These mistakes include creating ambiguities in their wills or providing incomplete or outdated information. It’s important to understand how to avoid creating ambiguities or other problems in your will. 

First, let’s go through the formalities of a will in New York. 

• In New York, the person making the will (known as the testator) must be at least 18 years old and be able to understand the nature and consequences of their actions. This means they must have the mental capacity to know the extent of their property, the identities of their beneficiaries, and the effect of creating a will. 
• A valid will must be in writing. While wills are often typed or printed, a handwritten will – known as a holographic will – is valid so long as it meets the other statutory requirements. 
• The will must be signed in the presence of at least two witnesses. The witnesses must be competent and at least 18 years old. It’s best not to use people who are beneficiaries of the will as witnesses in order to avoid conflicts of interest.
•  If the testator is unable to sign due to physical limitations, a proxy may sign in the presence of the testator and the witnesses. The proxy’s signature should be followed by a statement that he or she signed at the direction of the testator. 
• Though not legally required, it is recommended that an attestation clause be used in the will. This is a statement signed by the witnesses that they witnessed the testator signing the will and that the testator had legal mental capacity. 
• A self-proving affidavit is also beneficial, though not legally required, as it allows the will to be admitted to probate without the need for witnesses to testify in court.

Common Will Ambiguities And Other Problems

Now that you understand what’s required to create a valid New York will, here are some of the most common errors we see in wills, trusts, and other estate planning documents:

Ambiguities – Ambiguities occur in a will when the language is unclear or could be interpreted in several ways. This happens more frequently when people use an online form or other do-it-yourself will. Ambiguities can occur in the following situations:

• A bequest of property to someone who is not of legal age
• A gift of a bank account or stock that no longer exists at the time your loved one dies
• A gift to someone who predeceased the testator
• A bequest written in such a way that it could have more than one potential recipient
• A gift of an asset that the testator did not fully own

Unclear designations. A will must name executors and beneficiaries. Sometimes, the language used in these designations may be ambiguous, such as naming “my brother” as executor when you have more than one living brother. Vaguely worded testamentary dispositions, such as reciting that “my children will inherit” may be unclear as to whether any unborn children are included in the bequest. In some cases, testators fail to include the appropriate suffix after a beneficiary, such as including “Jr.” or “Sr.” causing confusion as to which party or generation should inherit.

Typographical Errors. Grammatical and numerical typos can call a provision’s intention into question. For example, if the will contains a donation to a charity in the amount of “five hundred (5000) dollars,” due to a typographical error, it may be difficult to determine how much the decedent intended to donate. However, note that a typographical error will not invalidate a will if the court can discern the true intent of the testator. 

Incomplete information. Incomplete information can cause questions regarding a testator’s intent. For example, if the will makes provisions for the testator’s children but does not name them specifically, there may be a question about whether children born outside the marriage are meant to inherit.  

Failed gifts. A failed gift is a gift that cannot be given to the intended recipient. This can happen if the person who was supposed to receive the gift has died before the gift was to be given or if the testator no longer owns the property. 

How Ambiguities And Other Problems Are Resolved

When a provision in a will is not clear and cannot be resolved by the parties, the executor may ask the court to clarify the provision. The court will call witnesses to provide testimony or solicit a statement from the attorney who drafted the will to clarify the decedent’s intentions. After hearing all of the necessary evidence, the court will issue a final decision. If the beneficiaries or heirs do not agree with the court’s interpretation, or if the court decides the will cannot be interpreted, the interested beneficiaries may enter litigation to challenge the will. 

Contact Davidow, Davidow, Siegel & Stern

Will drafting is a complex process. A small mistake can change the meaning of a sentence or even the entire document, resulting in unintended consequences for your property and loved ones. The best solution for many mistakes is to prevent them from happening in the first place. If you have no existing will, our estate planning attorneys can create a binding document allowing your wishes to be followed to the letter. If it’s been several years since you created your will, we can help you update it to keep your estate plan current. 

You can greatly reduce the odds of a long and frustrating legal battle after your death by involving an experienced Long Island will attorney. Here at Davidow, Davidow, Siegel & Stern, we have over 100 years of experience working with our clients on their estate planning, including drafting wills and trusts, as well as probate and estate administration. Contact us today.