Will Clauses to be Avoided

Will Clauses to be Avoided

Will Clauses to be Avoided

Will Clauses to be Avoided Don't write itdon't even say it. If you have waited all your life to tell someone off, and you feel that there is some discomfiture or "comeuppance" which should be directed his way, restrain the temptation to incorporate your thoughts into your WILL. Incorporating into your WILL words which may prove to be libelous or defamatory may cost your estate and your beneficiaries a considerable amount of money. Remember, if you include the material in your WILL, you will be presumed to have intended that it be published, not only to the surro gate's court, but to the world. Once your WILL is filed, it becomes a matter of public record.

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In a New York case, a testator died 15 years after writing his WILL. He had been estranged from his wife, and had sued for a divorce charging her with adultery. Since he had not provided sufficient proof to sustain his charge, his wife had succeeded in obtaining a judgment of separation against him. Approximately six years after the dismissal of his divorce complaint, he executed a WILL reciting the charge of adul tery. On his death, 21 years after the lawsuit, the WILL was held to be libelous and his estate responsible for damages. Keep in mind that not all libel requires proof of actual damage. The imputation of unchastity toward a woman, the charge of the commission of a crime, the allegation that a person suffers from a loathsome disease, or is unfit or inept in the practice of his trade or profession will be libelous without any proof of actual damages. Of course, if you want to invite a suit for libel against your estate, that is another matter. Some years ago, in England, two old men plotted to have themselves sued for libel. Their de ceased father had been the prime Minister of England; and a notorious writer, in an attempt to stimulate the sale of his writings, made charges that the deceased Prime Minister had been not only a statesman of the first magnitude, but had excelled in the pursuit of female companionship. Since the lawdoes not permit the dead to sue the living for libel, the only way the old men could clear their late father's name was to force the author to sue them for libel. They thereupon published statements that the author was a "foul fellow" and a "wilful and deliberate liar." Faced with the choice of suing or resigning from his clubs, the author sued and was faced with the defense of justificationthat he was in fact a liar and a "foul fellow." The jury sustained the defense, honored the memory of the deceased Prime Minister, and the author was forced to resign from his clubs. If you find yourself in a position similar to that of the Gladstone brothers, and feel that you want an action insti tuted, provide your executor with all of the proof. Remember, too, that the witnesses may not be available to testify when your estate is sued. Reject the temptation to disinherit your brother because he was a drunkard and broke your mother's heart and say that you make no provision for him "for rea sons which are good and sufficient to me." A bachelor should not embarrass a female friend by de scribing his affections and relationship with her and should merely describe her by name and as "my friend."

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