THE PREPARATION OF WILLS.

PAPER BY

L. C. HOPKINS,

OF ATLANTA.

When I was asked to prepare a paper for this meeting, I made some inquiry as to the subjects chosen by the others who were on the program, and found they covered a wide range, dealing with problems of immense scope and importance such as control by the Federal Government of quasi-public corporations, how the great war is to be paid for, and other matters of similar magnitude. In casting about for a subject for my own paper, it occurred to me that by contrast one of limited scope on a special branch of the law with which every lawyer occasionally comes in contact might prove not without interest; and I have chosen the subject of the "Preparation of Wills" simply because a considerable portion of my practice has been concerned with testamentary distributions of property, and on one or two occasions I have been driven almost frantic by the problems presented by wills which I had myself previously drawn and which for the life of me I could not understand, when called on for an iron-clad construction of them after the death of the testators.

The object of this paper is to touch this subject in a few high places, to develop a few suggestions from a consideration of the practical and business side of will-drawing, and to refer to two or three Georgia cases with a view to seeing why the estates in question were involved in litigation and how this might have been avoided.

Lord Coke is quoted in a recent book as saying, "Wills, and the construction of them, do more perplex a man than any other learning."

And again, "I find great doubt and controversies daily arise on devises made by last wills in respect of obscure and insensible words and repugnant sentences, the will being made in haste, and some pretend that the testator in respect of extreme pain was not compos mentis and divers other scruples and questions are moved upon wills. But if you please to devise your land by will, make it by good advice in your perfect memory and inform your counsel truly of the estates and tenures of your land and by God's grace the resolution of the judges in this case will be a good direction to learned men to make your will according to law and thereby prevent questions and controversies."

An examination of the wills which find their way into our courts would seem to lead to the belief that the lawyers who drew them did so with such flourish of language and complexity of arrangement as should produce inevitably two results: first, the making of the deepest possible impression on the client and therefore pave the way to the charging of the largest fee possible, and second, to plunge the estate into ruthless warfare the moment the testator was dead and thus produce the largest possible additional fees for the brother lawyers who come later.

Far be it from me to decry such methods. Lawyers must live, and those laymen who come into contact with us ought to submit without protest to the inevitable, somewhat as I believe Judge Bleckley once said, if a man is legally tried for murder and legally convicted, he ought to go on and be legally hung like a man and not kick. The dignity and the majesty of the law must be upheld.

Still it occasionally happens that we are called on to draw a will for a client who has been steadfast and true to us in the past and who will leave a family that is entitled to some consideration-widows and orphans, perhaps, for whom every lawyer should occasionally have a heart. Such a situation is of course rare, but should it occur, we ought to be prepared to meet it.

Why do so many will contests arise?

The answer is to be found in an examination of the cases

themselves. In almost every one, a study of it shows that the litigation could have been avoided with a little additional knowledge, care and skill on the part of the draftsman of the will.

I will assume, for the sake of argument, that we desire to avoid a controversy for our client's heirs and that we do not wish to be known as the author of a will which is denied probate.

We can tell at once from the will we are asked to draw whether it is likely to be attacked. If it contains unusual provisions, or distributes the property unequally among the testator's heirs-at-law, or ties it up for a long period out of the reach of the wayward sons who are dead crazy to get their hands on it, most likely it will be. We can always anticipate these things and at very little trouble build up a state of preparedness which will be well-nigh invulnerable notwithstanding the difficulty which always exists that the fight does not come until the one who best knows the real facts and who can best express the true reasons why the will is drawn as it is the testator himself-has lit out for a place where he cannot be subpoenaed.

Such a will should never be executed in the presence of any one who will benefit by it. It should, if possible, be drafted preliminarily by the testator in his own hand and this draft preserved. It should be witnessed not by doctors, nurses, stenographers or clerks, but by three lawyers who are above reproach and whose demeanor from the witness stand will carry conviction to any jury.

The witnesses should have the situation explained to them, and they should fully discuss the will with the testator and satisfy themselves that he is free from undue influence and clearly understands every detail of the paper.

Some time ago I was employed to draw the will of an elderly woman, who, much to my surprise, stated her intention of disinheriting her nearest relative and the one to whom all her friends would have believed she would naturally desire to leave her property. A long consultation, however, convinced me that she was perfectly capable of deciding this question

for herself and had reached her conclusion voluntarily and without any undue influence. I thereupon drew the will as she desired, asked three good lawyers to serve as witnesses, and before they attested it I made her in their presence dictate to my stenographer a detailed statement of the situation. At the conclusion of this paper I put a certificate signed by the three witnesses that she had dictated the statement in their presence, that they had talked with her and were entirely satisfied she was mentally capable of making a legal decision as to how she wanted to dispose of her property, and that the will she was making was her voluntary will, entirely free from the influence of others. I also took from her a list of acquaintances who best knew the facts that had caused her to reach her decision.

I am sure this will will be attacked whenever it is filed for probate, but I am quite confident that with the evidence I can then put at the disposal of the propounder it can be successfully defended against any assault that can be made on it. Of course if I should accidentally be employed to probate the will the situation will be well-nigh bomb-proof.

Great trouble arises at times in winding up estates and a testator's wishes are often thwarted by a failure on his part and on the part of his attorney accurately to ascertain the condition of his estate at the time of the preparation of the will. It is very important that the titles under which his properties are held be ascertained. If after his death it be found that some of his deeds, stocks or life insurance policies are in the name of his wife, or others, questions of election, dower, etc., will at once arise. There is no surer way to disarrange an entire testamentary scheme than to leave open questions of dower, or give an heir opportunity for election.

Even more destructive of the testator's wishes are unconsidered equities. A case arose in my county some years ago where a man in his will created limitations lasting for a long period during which his wife and children could only get the income. This didn't suit them at all. They wanted the whole boodle and they wanted it right away. The wife thereupon brought claim against the estate in which she asserted that

some thirty years before, she had given her husband a sum of money and that he had operated and speculated with it and made from it practically his whole fortune. She prayed for an accounting for the principal of this fund and all its profits and that his entire estate be impressed with a trust in her favor for the amount found to be due. As a matter of fact, she had given the man the money she claimed to have given him and she proved it, and as of course limitation does not run against such a claim until after demand and refusal to account, the widow's chances of success were overwhelming. The result of the litigation was a compromise in which her debt was settled, the great bulk of the estate taken to pay it, and all went on their way rejoicing.

This whole trouble could have been avoided if the draftsman of the will had explained to his client the danger which lies in secret equities, and had taken proper steps to ascertain and discharge this one.

From a standpoint of prudent business methods to be observed with sons inclined to be lazy and extravagant, difficult situations are sometimes presented. It is of course a dangerous thing to turn over property unrestrictedly to the average boy who has just reached his maturity. The danger is increased if he has a tendency to idleness and prodigality. The knowledge that on reaching the age of 21 or 25, or even 30, he is to have a considerable amount of property delivered to him to deal with as he likes, has a very paralyzing effect upon the average man. Ten or twenty or thirty thousand dollars seems to him an unlimited supply of cash. He does not feel the necessity of putting himself to any exertion to earn money himself as long as he has this in sight, and when he gets it he usually spends it pretty promptly, and by the time this process. is completed has formed habits of waste and idleness which he probably will never get over.

The chances are all in favor of the absolute ruin of a young man by giving him unrestrictedly a considerable estate.

The problem presented is to preserve it for his benefit and advancement in such way as not to have this paralyzing effect. I threshed this situation out with a client some time ago and