Need some guidance on interpreting verbiage in a last will and testament

[alphabeta8732]

I’m unclear about the verbiage in a will, listed below. I’m wondering if all assets go to the Husband, or if Persons 1, 2, & 3 have any claim?:

“I give, devise and bequeath all my estate, real, personal and mixed and whatever situated, including all property which I may acquire or become entitled to after the execution of this will, and all lapsed legacies and devises or other gifts made by this will which fail for any reason l, but not including, however, any property over which I may have any power of appointment to my husband [HUSBANDS NAME], if living at the time of my death, and otherwise in equal shares to [PERSON 1], [PERSON 2], and [PERSON 3].”

 

[HRZ]

Was husband alive at time of makers death?

Are you asking about powers of appointment?

 

[Zigner]

What US state?

 

[alphabeta8732]

Sorry... it’s Massachusetts.

 

[alphabeta8732]

Also - husband was/still is alive at time of death.

 

[alphabeta8732]

My question is, I’m unclear, based on how that paragraph is written, if the assets go to the husband, or if Persons 1, 2, and 3 receive anything.

 

[Zigner]

What is unclear? The paragraph is actually clearly written. Who are you in this matter?

 

[alphabeta8732]

I am person 1. I was unclear about the sentence “and otherwise in equal shares”. I’m unsure if the assets go to the husband since he was the surviving spouse, or of persons 1, 2, & 3 have a claim?

 

[Zigner]

I am person 1. I was unclear about the sentence “and otherwise in equal shares”. I’m unsure if the assets go to the husband since he was the surviving spouse, or of persons 1, 2, & 3 have a claim?

It appears that, if dad was alive at the time of her death, then the rest is irrelevant. Had dad been dead at the time of her passing, then 1, 2, & 3 would share her estate equally.

It really is plain-English.

 

[LdiJ]

I’m unclear about the verbiage in a will, listed below. I’m wondering if all assets go to the Husband, or if Persons 1, 2, & 3 have any claim?:

“I give, devise and bequeath all my estate, real, personal and mixed and whatever situated, including all property which I may acquire or become entitled to after the execution of this will, and all lapsed legacies and devises or other gifts made by this will which fail for any reason l, but not including, however, any property over which I may have any power of appointment to my husband [HUSBANDS NAME], if living at the time of my death, and otherwise in equal shares to [PERSON 1], [PERSON 2], and [PERSON 3].”

If husband is living at the time of the person's death, then husband gets it all.

 

[ALawyer]

Concur.

 

[Taxing Matters]

It really is plain-English.

While I agree the result is the husband takes it all if he is living at the time of the wife's death, it is not written quite as clearly as it could have been. I dislike long sentences with multiple clauses in them. They make you work harder than you should have to do to read them. I know some lawyers are fond of that kind of drafting. I am not one of those lawyers. When I draft wills I work hard to avoid that kind of stuffy, legalistic style of writing. In the states in which I practice, the following would have accomplished exactly the same thing:

"I give to my husband all of my property of whatever kind and wherever located except for those assets over which I have a power of appointment. Should my husband not survive me, my property is to be split equally between Amy, Bill, and Carol."

Something like that seems to me much clearer than what the OP had to wrestle with in the will he/she was reading. It does not perhaps sound as legally impressive, but I'll bet if it had been written similar to what I wrote, the OP would never had to come here to ask about it. I urge my fellow lawyers all the time to write in clear, nontechnical English to the extent it is possible to do so. Ideally a client should never have to go back to a lawyer to ask what some language in a document a lawyer drafted really means.

 

[quincy]

In journalism, you are taught to write to an eighth grade level of understanding so the average person of reasonable intelligence can understand what is written. It would help if law followed journalism's lead in this regard - but as often as this has been debated in the past, lawyers seem attached to their "whereofs" and "heretofores."

 

[Litigator22]

In journalism, you are taught to write to an eighth grade level of understanding so the average person of reasonable intelligence can understand what is written. It would help if law followed journalism's lead in this regard - but as often as this has been debated in the past, lawyers seem attached to their "whereofs" and "heretofores."

Few are admitted to law schools with but an eighth grade level of understanding!

 

[quincy]

Few are admitted to law schools with but an eighth grade level of understanding!

True. But if lawyers wish to communicate effectively with the general public, they should be smart enough to speak in a language that is understood by the general public. Legalese is not that language.