Unusual Terms in Wills

by John Stevens J.D.
Consult a lawyer, because unusual will provisions can be legally tricky.

Consult a lawyer, because unusual will provisions can be legally tricky.

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The vast majority of wills are fairly straightforward in their purpose of leaving property outright to family members and friends. A straightforward will may not be appropriate for all situations, however. To accommodate a seemingly endless number of possible situations, legal practitioners have created a variety of will provisions designed to satisfy some of the unusual circumstances of their clients.

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Conditional Wills

Although rare, it is possible for a person to provide that her will only takes effect upon the occurrence, or nonoccurrence, of a stated event. Such a will is called a conditional will. For example, a person may state her will takes effect only if she is married at the time of her death, or if she dies before or after a specified date. When faced with interpreting a will purported to be a conditional will, courts must often determine whether the language in question is a condition or only a statement as to why the will was created. For example, assume that John creates a will and includes language that he is creating the will because he is concerned that his son will not have enough money to pay the medical expenses incurred from a recent car accident. A court interpreting this provision must decide whether John intended the will to take effect only if his son is unable to pay his medical bills, in which case the will is a conditional will, or if the language only expresses John’s motivation for creating the will.

Conditional Gifts

Whereas the language of a conditional will provides that the will takes effect only upon the occurrence or nonoccurrence of some event, a conditional gift only makes a specific portion of the will effective upon some contingency. A conditional gift may be based on a condition precedent or a condition subsequent. A condition precedent means the gift is made only upon the occurrence or nonoccurrence of some event. For example, if John states in his will that his niece Betty is to receive $25,000 upon her reaching the age of 25, the gift is a condition precedent because something must occur before Betty receives the money. A condition subsequent means that a will beneficiary can keep the gift under the will only until some event or nonevent occurs. For example, assume that John’s will leaves his house to Betty, but the house will pass to John’s nephew, Sam, if Betty is convicted of a crime. This is a condition subsequent because Betty will lose the house if she is convicted of a crime after receiving it.

Joint Wills

A joint will is a single document that contains the wills of two or more persons. If a joint will is created, it is usually created by a husband and wife. There is no requirement, however, that only married couples may create a joint will. Joint wills are considerably rarer than individual wills because one party can revoke the entire will without the consent or knowledge of the other party. The widespread use of computers has also substantially reduced the risk of error, time, and expense otherwise incurred when creating individual wills.

Election Wills

An election will is perhaps the rarest type of will. Rather than giving away the property of the person who created the will, the terms of an election will attempt to give away property that is instead owned by a beneficiary of the will. The beneficiary must choose, or “elect,” to receive the gift from the will or to keep her own property. For example, assume that John is upset that his father died and left a valuable family heirloom to John’s brother, Bob, rather than to John’s daughter, Betty. John creates a will that leaves the valuable family heirloom owned by Bob to Betty. John’s will further states that John leaves $50,000 to his brother, Bob. John has created an election will. Bob must decide between giving the family heirloom to John’s daughter, Betty, and taking the $50,000 under John’s will, or keeping the heirloom and not receiving the $50,000 gift under John’s will.