What can I include in my Will?

Sometimes I have clients who have very specific requests that they want honored upon their death.  Sometimes it has to do with charitable gifts, sometimes it relates to specific children, sometimes even to pets.  When there are specific or unusual instructions, the question is “Will this be upheld?”

A general proposition is that a person’s assets are his to distribute as he wishes.  If I own a diamond ring, and I want to leave it to my favorite waitress, I can do that.  Even if my daughter gets angry about it.  Or if I have a large life insurance policy and I want the beneficiary to be the local conservation organization and not my grandchildren, I can do this. Often parents will treat their children differently because they have different needs.  One child may receive assets in trust due to a special needs situation, while the other will inherit outright.  Some children who are in a superior financial situation may not inherit at all.  It’s important to realize that just because you disagree with a decision, or find it impractical or infuriating, does not make it illegal or invalid. In order for a will provision to be struck down, the plaintiff usually needs to show that the will was made under duress, that the person who made the will was incompetent, or that the will is invalid for some other reason.  Simply not liking the provision, thinking it’s not fair, or disagreeing with the provision is not enough to have it declared invalid. 

There are some cases instructions that if  a provision is “void for public policy reasons” will not be upheld.  For example, a person may not be prevented from marrying someone – “I leave $100,000 to my son, in trust, so long as he does not marry”.  A person may not be encouraged to commit illegal acts.  Usually, depending on state law, a person may not entirely disinherit his spouse.  And interestingly, probate courts will often not enforce an instruction to put down a pet. See  Boots is Saved.  However, most gifts, even if they happen at death, are just that.  And usually the one making the gift gets to decide who gets it.

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