Estate Planning, Probate & Elder Law Attorneys

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» Huck Finn and Holographic Wills

I'm rereading Mark Twain's The Adventures of Huckleberry Finn, which is great fun. In Chapter 25, Huck and Jim's traveling companions, the scam artists known as the Duke and the Dauphin, impersonate the brothers (Harvey and William) of a recently deceased rich man named Peter Wilks. But before that, in Chapter 24, we learn a little about Peter Wilks' estate plan:

"[Peter Wilks] most desperately wanted to see Harvey -- and William too, for that matter -- because he was one of them kind that can't bear to make a will. He left a letter behind for Harvey, and said he'd told in it where his money was hid, and how he wanted the rest of the property divided up.... And that letter was all they could get him to put a pen to."

As I've said before, hand-written Wills are perfectly fine in Illinois, but all Wills have to be witnessed by at least two witnesses. If a hand-written letter like this was found in the case of an Illinois decedent, it would not be considered a valid Will, even if it clearly indicated the decedent's wishes. Why? Because the stakes are so high (involving the distribution of all of the decedent's property), the proof required for a valid Will is equally high.

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» Wills and Provisions That Fail

I didn't start my legal career doing much estate planning; for the most part, I was a probate attorney, handling Wills that had "matured" into deceased estates. I think that's a helpful experience, as you quickly figure out from a practical perspective the difference between good provisions and provisions that fail.

Let me give an example from a Will (not drafted by me, luckily) that recently came across my desk. The Will gives most property in equal shares to the decedent's three living children, which is fine. But it also makes a gift of certain jewelry to "the first of my granddaughters to marry." Setting aside the potential inequality here -- why favor the first granddaughter only? why favor only granddaughters? -- there's a problem: none of the decedent's granddaughters have married. So what now? At the time the Will was drafted, this provision failed (it didn't work), and it still fails today.

As a probate attorney, the problem is clear. I have to file with the probate court a document listing the decedent beneficiaries (legatees). Who in the world do I list from the above provision -- all of the granddaughters? someone who can hold the jewelry in trust until a granddaughter marries? somebody else?

If the draftsperson had spent five minutes thinking about the practical ramifications of this language, he or she could have easily fixed it.