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tashirosgt
2013-Nov-28, 02:32 AM
Helping a friend adapt a boilerplate will makes me curioius about its language.

For example:



do hereby make, publish and declare this to be my Last Will and Testament in the manner following, to wit:


Do "publish" and "declare" have distinct legal meanings? Could one perform those actions without "making" the will?




I hereby give, devise and bequeath all of the rest and residue of my property, real, personal and mixed, of every kind and character and whatsoever situate to


What does "devise" mean in this context? My own personal will uses the phrase "wherever situated" . Is "whatsoever situate" an archaic version of that?

Jens
2013-Nov-28, 03:53 AM
What does "devise" mean in this context? My own personal will uses the phrase "wherever situated" . Is "whatsoever situate" an archaic version of that?

You should try a dictionary. It's a big book with lots of words in it, but that's not important right now. I didn't know the word either, but I found this:



Law: To transmit or give (real property) by will.

So apparently it's quite specialized.

Ivan Viehoff
2013-Nov-28, 10:54 AM
The point about these phrases, and a good reason not to disturb them, is that they have been repeatedly tested in court so there is no doubt what they mean and no holes in them. No doubt some court case once found a hole when someone had merely "given" or whatever, so now for avoidance of any doubt one "gives, devises and bequeaths" so no one can find any holes in it. Etc.

I likewise laughed once when a lawyer wrote that a contract may "determine through effluxion of time", which means come to an end beacuse the stated end date has been reached, but it turned out that this is a customary phrase much tested in the courts, so they stick to it.

Heid the Ba'
2013-Nov-28, 12:04 PM
Helping a friend adapt a boilerplate will makes me curioius about its language.
This sentence sets out clearly why you don't amend boilerplate. :)



Do "publish" and "declare" have distinct legal meanings? Could one perform those actions without "making" the will?
Probably, but I don't know your jurisdiction.



give, devise and bequeath
Are probably not synonyms, just as bequest and legacy are different. The legal definition of a word can often differ from its common usage, or even its dictionary definition. As Ivan says there will be caselaw to show what the word means in a legal context.

Pay a professional to prepare the Will, this is probably the most important document your friend will make. Homemade Wills can be a minefield, most of the ones I see have some flaw in them and often the estate does not pass to the people the granter wanted, or they are invalid and intestacy takes over. With any other deed you can argue your case in court, with your Will you can't. Also, depending on your jurisdiction the tax position of the beneficiaries or estate can change dramatically depending on how the deed is worded.

Cougar
2013-Nov-28, 02:12 PM
.

I object to some of the comments here. :)



do hereby make, publish and declare this to be my Last Will and Testament in the manner following, to wit:
Do "publish" and "declare" have distinct legal meanings? Could one perform those actions without "making" the will?

I have not been through law school, but I do a lot of legal writing and argument that is ruled on by state or federal judges. I'd say the only requirement is to be clear and unambiguous. A court will interpret an agreement or a will based on the "plain language" of the document. If the language is ambiguous or unclear, then the court will consider evidence beyond the document that indicates the intent of the signatories. I would rewrite the above like this:

I hereby declare this to be my Last Will and Testament as follows.



I hereby give, devise and bequeath all of the rest and residue of my property, real, personal and mixed, of every kind and character and whatsoever situate to
What does "devise" mean in this context? My own personal will uses the phrase "wherever situated" . Is "whatsoever situate" an archaic version of that?

I see no significant difference in the three verbs and would simply use "bequeath." I do understand that attorneys seek to cover all bases, so to speak, so that an opponent will not come along and claim "You only bequeathed that property. You didn't devise it. Therefore I should get that property." Of course, in this case, such an opponent would be laughed out of court and probably made to pay any costs associated with opposing his argument.

There is a movement to simplify legal language. I believe the courts are onboard with this. In general, I'd say use specific, direct language and consider whether someone could interpret your language differently than what you intend. If so, then be more specific. :)

The judiciary is simplifying civil procedures as well. A couple years ago, a motion and a memorandum in support of the motion had to be two separate documents. No longer! Now you can say (1) what you want, and (2) why you should get it -- in a single document. Of course, everything is electronically filed now, too.

Heid the Ba'
2013-Nov-28, 02:38 PM
In general, I'd say use specific, direct language and consider whether someone could interpret your language differently than what you intend. If so, then be more specific. :)


This is a much better idea than amending a template, there is less possibility of a screw up. That said, what is clear to one person may not be clear to a court so I stand by my statement that it is better to get a professional to do it.

I have a working knowledge of mathematics but no-one would ever suggest I am capable of calculating the stresses on a bridge. Legal documents are the same, unless you know exactly how the words will be interpreted and how the clauses interact (one of the major failings of home drafted Wills) then you shouldn't be writing it.

Edit to add:
Does your friend need a Will or would intestacy do what they want?

Hornblower
2013-Nov-28, 04:23 PM
It appears that lawyers and judges insist on using this seemingly oddball language to be sure of keeping the legal documents in concurrence with the vast body of case law that goes back centuries, which means much of the case law is written in language that has become archaic but still intelligible to experts who have studied it in depth. Translating all of it into modern standard English might be a bigger job than learning the archaic stuff.

Heid the Ba'
2013-Nov-28, 04:46 PM
It appears that lawyers and judges insist on using this seemingly oddball language to be sure of keeping the legal documents in concurrence with the vast body of case law that goes back centuries,
Correct, we like clarity.

which means much of the case law is written in language that has become archaic but still intelligible to experts who have studied it in depth.
And who doesn't like being in a cartel? :)

Translating all of it into modern standard English might be a bigger job than learning the archaic stuff.
First you would have to agree what modern standard english is.

Legal english is like mathematics, it bears some resemblance to english but some terms have completely different meanings in each language.

tashirosgt
2013-Nov-30, 12:16 AM
This is a much better idea than amending a template, there is less possibility of a screw up. That said, what is clear to one person may not be clear to a court so I stand by my statement that it is better to get a professional to do it.



In my friend's situation, the professional provided the boilerplate will, which will be edited and submitted for his review.

Solfe
2013-Nov-30, 02:31 AM
I used to liaison between an engineering department, a marketing group and the legal team. Four years of that shaved 20 years off my life.

Jens
2013-Nov-30, 06:17 AM
I used to liaison between an engineering department, a marketing group and the legal team. Four years of that shaved 20 years off my life.

From which end?

Solfe
2013-Nov-30, 06:33 AM
Hopefully from the end I already used, but since I still remember the entire X-Men series 56-203, I suspect it is from the end I need.

Cougar
2013-Nov-30, 02:07 PM
...the vast body of case law that goes back centuries, which means much of the case law is written in language that has become archaic....

I've also read a lot of case law. When supporting a position, newer case law is better than older case law. Stuff from the late 1800s and early 1900s is not really so specialized, it's just overly formal. Newer stuff is basically just good English. Heid is right, though. Certain "legal" words that we don't usually see in normal usage have specific meanings. "Intestacy," for example. And having a pro do it, or sign off on it, is never a bad idea, and it sounds like Tashiro has that covered. Notwithstanding the objection, ;) keeping all those seeming synonyms ("give, devise and bequeath") is probably not going to hurt, either. I'm just biased. I really dislike boilerplate. It typically covers anyone who has ever lived, when all you want is for it to cover YOU.

Heid the Ba'
2013-Dec-01, 10:16 PM
I've also read a lot of case law.
I read as little as possible, :)


"give, devise and bequeath"
From a quick trip to teh Googelz what seem like synonyms refer to different classes of assets.


I really dislike boilerplate. It typically covers anyone who has ever lived, when all you want is for it to cover YOU.
Preach brother!

Ivan Viehoff
2013-Dec-02, 05:09 PM
Pay a professional to prepare the Will, this is probably the most important document your friend will make. Homemade Wills can be a minefield, most of the ones I see have some flaw in them and often the estate does not pass to the people the granter wanted, or they are invalid and intestacy takes over.
Cheap lawyers can make bad mistakes, and it is a question of what you can afford vs what you can research and get right yourself.

When my cycling club tried to convert itself into a company, my predecessors paid some cheap lawyers to draft the company documents. I came into the committee between the drafting of these and the company formation, and a few hours research with the relevant statute and some other materials revealed to me the lawyers had made a complete mess of it, including making the one mistake we had been at particular pains to avoid. It took me a long time to redraft them, and we couldn't possibly have afforded a lawyer to do that quantity of drafting. I doubt they are perfect, but they are a lot better than we could have afforded to pay a lawyer to do. We aren't just a normal off-the-shelf company, not at all.

I drafted my own will. I didn't want to do anything complicated, and it sufficed to obtain materials on how to draft a will in the relevant jurisdiction and implement the simple clauses within that framework. But I wasn't doing anything more complicated than I could be reasonably sure was within the scope of the clauses I was drafting. There really was no need to employ a pro to do that. Avoiding tax, setting up trusts, you may well need some experts.

ToSeek
2013-Dec-03, 09:39 PM
What does "devise" mean in this context? My own personal will uses the phrase "wherever situated" . Is "whatsoever situate" an archaic version of that?

As Heid notes, bequeath and devise apply to two different kinds of property: bequeath to personal property and devise to real estate.

Trebuchet
2013-Dec-04, 01:21 AM
We need to get new wills done. And there are tons of places that will do it for you over the internet. One of these is LegalZoom, fronted by Robert Shapiro. I'd never do business with him because of one of his former clients.

Heid the Ba'
2013-Dec-05, 09:57 AM
Cheap lawyers can make bad mistakes, and it is a question of what you can afford vs what you can research and get right yourself.


But even cheap lawyers have indemnity insurance, if they screw up they are insured, if you screw up you aren't.