Thursday, August 15, 2013
Susan N. Gary (Orlando J. and Marian H. Hollis Professor at the University of Oregon School of Law) has published an article entitled, Definitions of Children and Descendants: Construing and Drafting Wills and Trust Documents, 5 Est. Plan. & Cmty. Prop. L.J. 283 (Summer 2013). Provided below is a portion of her introduction:
This article focuses on the definitions of children and descendants in estate planning documents. When a will or trust uses one of these terms without defining it, the default definition will most likely derive from the state intestacy statute. A testator or settlor may not understand what the statutory definition provides and may assume a definition based on a personal understanding of the terms. Intestacy statutes differ from state to state and may be amended over time, making comprehension more difficult for lay individuals. Although a court may apply the intestacy statute in effect at the time and place a settlor created a trust, over time some changes may become so much a part of the definition that the court may apply the changes to documents that pre-date the changes.
Given the differences in personal preferences and the continuing changes in the statutory definitions of children and descendants, providing definitions in estate planning documents has become more important and more difficult. The need for personalized definitions reflects the fact that no one-size-fits-all definition of children or descendants will work. An estate planner must identify appropriate questions and provide different drafting solutions based on a client’s preferences. Using one generic form will not provide the best outcome for all clients.