by Jonathan A. Nelson
Sometimes old names for documents convey important information, even if they seem outdated to the modern ear. With legal documents, seemingly repetitive terms may be used to ensure that a clause covers concepts in both law and equity, accounts for distinct circumstances, parties, or property types, and (reaching farther back in English Common Law history) would apply uniformly in Norman and Saxon courts.
The term ‘Last Will and Testament’ has been historically used because the title ‘Will’ was necessary to convey real estate, while a ‘Testament’ bestowed personal property. If a single document covered both, failing to also call it a ‘Testament’ left open to challenge whether gifts of personal property were mandatory or just nonbinding suggestions to whoever was dealing with the real estate.
The word ‘testament’ means “a thing that witnesses.” Notwithstanding the ordinary hearsay rules (and the departed one’s absence), done in proper form that document is permitted to speak for the decedent in court.
Having watched numerous families go through the process of reviewing and implementing testamentary documents after a death, I think if anything we tend to underappreciate just how much that ‘witness’ means to those left behind. Beyond money and gifts, it is a statement of what priorities were so important to this person that they want to see them fulfilled, even when they are no longer here. Particular provisions for people or causes that would not receive anything in the absence of the Will (or Trust, or beneficiary designation) make everyone notice. Protections for vulnerable beneficiaries or requirements for cooperation can (in the right circumstances) keep relationships together that otherwise might part ways. Removal or restriction of an expected benefit is a very strong, if sometimes necessary, reproof, and in my experience should be done carefully to convey the meaning intended. Even a “plain vanilla” Will which follows expected inheritance lines still says, “I care enough to write down that you are all to be treated equally.”
What witness to your priorities are you leaving behind? A discussion with your estate planning attorney will go into many practical areas, but it is worth spending some time thinking about the messages these documents send, as well.
Virginia attorney Jonathan A. Nelson practices in estate planning, probate, trust administration, business formation, and estate and trust litigation, and brings nearly 20 years of experience resolving conflicts, negotiating settlements, vigorously advocating in the courtroom, and navigating compliance matters. He uses a personal touch and extensive legal knowledge to ensure that the particular needs and interests of each client are reflected in the legal services they receive.
The attorneys of Smith Pugh & Nelson, PLC, offer the experienced counsel, personal attention, and customized legal services needed to address the many complex issues surrounding estate planning, probate, and trust administration. Contact us at (703) 777-6084 to schedule a consultation.