The importance of using the right words when drafting a will

Date: Nov 02, 2011
Document Type: Newsletter

The words used in wills – much like other legal documents – need to be chosen carefully, because terms and phrases can easily be misconstrued and can have multiple meanings. As the person drafting a will, you may know what you meant in the will, but for others who are trying to decipher your wishes, they might have a bit more trouble. Keep in mind that in most instances, an executor and any beneficiaries will only be privy to the information in your will only after you have passed away. So needless to say, you won’t be able to clarify your wishes to the parties involved if any misunderstandings do arise. In order to ensure that your executor is able to administer your property and estate in line with your wishes, it’s important to bear in mind that you should always choose your words carefully when drafting a will.

Words can have different meanings

It might not occur to us that when creating a will that using certain words or terms might be problematic. However, difficulties do sometimes arise, even when we may not foresee any issues. For example, a testator (will maker) may name their ‘children’ as beneficiaries – no problem there right? Well, what if the testator had multiple children that may include step or foster children? Not to mention any natural born children: what happens then? All of the sudden the term ‘children’ can have many different connotations.

Another example may include a person who for various reasons, refers to a person as an ‘aunty’ or ‘uncle’, when in actual fact, there is no blood relationship between the parties. Yet, it is the person that the testator calls, ‘aunty’ or ‘uncle’ who they wish to be the beneficiary, rather than any actual blood aunty or uncle. As we can see, confusion can arise even when we think a term is obvious. 

Some words you might want to avoid when drafting a will

‘Shall’ I use an example of what terms should not be used in a will? Or would you rather I use words that ‘must’ be in a will?

Beginning with the word ‘shall’. The problem with the word ‘shall’ is that it can mean an action or event that may occur in the future. While in contrast, the use of the word ‘must’ in a will indicates a crucial element in developing the trust. 

Yes, it may seem finicky to sweat over every little word or term in a will, but it’s even more important that you avoid words that may have ambiguity in its definition.   

Always state your intentions clearly when drafting a will

If you intend to create an obligation in your will, make sure you do so in the most unequivocal manner. Alternatively, if you just want to express a wish in your will, but not create a binding obligation, you must also express your desires clearly as well.

The courts will usually interpret the intentions of the testator by viewing the document as a whole. Nonetheless, it’s still important to be mindful that you should always choose your words carefully when trying to create a valid trust.

In order to ensure that your wishes will be fulfilled when you pass away, always seek the help of a lawyer who can help you in drafting a will that is legally valid.

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