By: Matthew Stucki
Recently I met with an individual who wanted me to review his Last Will and Testament, which he had personally drafted himself. In our meeting, the individual indicated to me that he had looked up templates on the internet and picked out different sections of the template until he had everything that he wanted in his Last Will and Testament. He then signed the document that he had prepared, believing that he had a valid Last Will and Testament. This prompted a lengthy discussion regarding the steps required in executing a valid will.
In order to execute a valid Last Will and Testament, there are several steps required. This blog post covers the first step, which is Testamentary Intent, with the reaming steps to follow in similar blog posts. Testamentary Intent in simple terms, refers to the Testator’s intent, or the intent of the person executing the will, with respect to the document he is signing to function as his or her Last Will and Testament. If such intent is found, then the Last Will and Testament is said to have testamentary character.
Stated a little differently, the Idaho Supreme Court has indicated that:
The test of the testamentary character of an instrument ‘is not the testator’s realization that it is a will, but his intention to create a revocable disposition of his property, to accrue and take effect only upon his death, and passing no present interest’.
In general, the opening paragraph of one’s Last Will and Testament provides words of intent and words of testamentary character. For example, an opening paragraph may consist of the following, “I, TESTATOR’S NAME, being of sound mind and memory, do make, publish and declare this my Last Will and Testament, hereby revoking all former wills and codicils made by me.” This paragraph is often followed by a section that disposes of the Testator’s property upon the Testator’s death to certain identifiable beneficiaries. Such phrases show the Testator’s clear intent to establish a Last Will and Testament.
Conversely, a document that is thrown together with a list of names and assets under those names creates some ambiguity. Are the assets to go to the individuals whose names they fall under? If yes, are they to be given to the individuals during life, as a gift, or upon the death of some individual as an inheritance under a Last Will and Testament? Without words of intent, it can be difficult to ascertain the actual intent of a Testator. By using introductory phrases, a person desiring to execute a Last Will and Testament can easily show clear testamentary intent and avoid any room for conflict among beneficiaries.
Call us toll free at 877-232-6101 or 208-232-6101 for a consultation with Matthew P. Stucki and the Racine Olson team of Estate Planning attorneys in Pocatello, Idaho Falls, or Boise. You can also email Matthew P. Stucki directly at mps@racinelaw.net. We will answer your Idaho, Estate Planning questions and will help you determine how to meet your personal estate planning needs.
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