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Will drafting can be a daunting task. A variety of future circumstances often must be anticipated and considered in the drafting process. The task is to cover every possible contingency. In addition, the language of a will must be perfectly clear and precise. Ambiguous terms or provisions may give rise to legal disputes. A malpractice suit against a New Hampshire lawyer illustrates one of the risks inherent in drafting wills. The lawyer had drafted a will for a man leaving all the man's property to his son from a prior marriage. This gift to his son was subject, however, to one exception. The man's present wife was to receive a life estate in what was described in the will as "our homestead." A life estate is an interest in property that is limited to the life of the person holding it. For example, if a husband leaves a life estate in the family home to his wife, she generally has the right to occupy or otherwise use it for the remainder of her life. Upon her death, the husband's former interest in the property would pass to another person(s) designated in his will. This future interest is called a remainder interest. In this example, it might be left in equal shares to the parties' children. In the New Hampshire case, the man's son from his prior marriage filed an action in the probate court contending that his father intended to leave his second wife a life estate only in the couple's house—not in all the surrounding land. The son presented evidence, including notes of the lawyer who drafted the will, that he was to receive the land now. He claimed the land never was intended to be included in the wife's life estate. The probate court found that the term "our homestead" was unclear, and held that the wife's life estate included all the surrounding land. The son sued the will-drafting lawyer for malpractice. This is one of many examples of the importance of careful drafting. If you have a will, review it. Be skeptical. Imagine questions that might be raised by its terms. If you have doubts, direct them to a lawyer who is experienced in drafting wills. Select one with adequate malpractice insurance should it be needed. |