The Problem of Intentions

One would naturally think that when the Court tries to figure out what the Will Maker meant in the Will, it would try to figure out the Will Maker’s intentions – what the Will Maker meant when she signed the Will.

That is not what courts do.

Instead, the courts try to determine the meaning of the words in the Will as of the time the Will was made.  You’d think it’s the same, but it isn’t.  Here’s the rule: “the court is to ascertain the expressed intention of the testator - the meaning of the written words used in the particular case - as opposed to what the testator may have meant to do when he or she made the will”.  What that means to lawyers is that the Will Maker’s words will be interpreted as is a lawyer wrote them.  Lawyers use words very precisely – but often the meanings we give words are based on what the words meant decades or centuries ago.  For lawyers, words are frozen.  For real people, words evolve: “stupid good” is very good; “bad” may mean wonderful. 

Lawyer and judges use words this way because then everyone in our legal system knows what we mean.  Definitions have been established in  previous cases, which we then rely on. 

This is a huge trap for people who write their own Wills.

It’s important is that you explain in detail to the lawyer what you want done, and WHY.  That way the lawyer can word your Will so that your intentions are set out correctly.

Sometimes the Will Maker thinks they have a particular intention.  Once they tell the lawyer WHY they want to do that, the lawyer may offer a better way to accomplish the same goal.  Meanwhile making sure that the terms don’t get thrown out by the Court.

It’s obvious, but often forgotten, that when your Executor or the Court look at your Will and try to figure out what you meant: YOU’RE DEAD.  You can’t answer questions or clear up confusion. 

And no, you can’t prepare a bunch of letters in advance trying to explain your Will.  The Will itself has to be clear.  Your intention has to be so clear even a judge can understand it – in language from the past century or two….

This is why it’s so important to hire a lawyer who understands the law.  One who prepares Wills as a core part of their work – not one who Mickey Mouses it.  You should pick a lawyer who can give you Clear Legal advice.

We’ve been doing that since 1990.