Parnell Hall: The Underground Man

“Suppose I change my will, but I don’t want anyone to know it? Can I do that?”

Steve frowned. “I’m not sure I know what you mean.”

“Exactly what I said. Suppose I change my will and no one knows it-is it legal?”

“When you say no one, you mean the heirs?”

“I mean no one. When I say no one, I mean no one. No lawyers. No witnesses. No one. Suppose I change my will myself, and nobody knows I’ve done it. Is it legal?”

Steve smiled. “That’s kind of like the tree falling in the forest and there’s no one there to hear it.”

“No, it isn’t,” Walsh said, impatiently. “I don’t mean like I dig a hole and bury it and no one ever finds it. Suppose I change my will and no one knows I’ve done it, but I make arrangements that after my death the new will would be discovered. My question is, would it invalidate the prior will and stand in its place?”

“If it was legally binding, it would. That’s what the phrase, ‘Last Will and Testament,’” means. The last will drawn by the decedent is the one that takes precedence.”

“I know that. I know that. It’s the first thing you said. If it’s legally binding. That’s the whole point. How can I make sure it’s legally binding?”

“The safest way is to have it drawn by an attorney.”

“I know that. But if I don’t. If I draw the will myself. Can the will I draw myself take precedence over the will prepared by lawyers and signed in the presence of witnesses?”

“Yes, provided it’s legally binding.”

Walsh threw up his hands. “We’re talking in circles here. If I draw the will myself, how can I make it legally binding?”

Steve sighed. “All right. First of all, you don’t type it. You make it entirely in your own handwriting. And when I say entirely, I mean entirely. That is to say, you can’t use letterhead. You start with an entirely blank sheet of paper.”

“Fine. What else?”

“You use a pen, of course, for the entire document. You date it. You state your full name. You state that you are of sound mind and body. You state specifically that you revoke all prior wills. You state that this is your last will and testament. Then you state specifically how you wish to dispose of your property. This is where it gets tricky, and this is where you need a lawyer.”

“Why?”

“Because in most wills there are specific bequests and a residuary clause. Do you know what that means?”

“Of course I do. Why is that tricky?”

“Because the value of a person’s property may fluctuate. Which puts the beneficiary of the residuary clause at risk.”

“How is that?”

“Because the specific bequests are fixed, whereas the residuary clause isn’t. For example, suppose you had a hundred thousand dollars to leave. You make five bequests of ten thousand dollars each. Those people are going to get ten thousand dollars no matter what. Your beneficiary is going to get fifty thousand dollars by the residuary clause. Say before you die you suffer business losses and your property sinks to fifty thousand. Since the ten thousand dollars bequests are fixed, those five people get ten grand each, and your principal beneficiary gets nothing.”

Walsh shook his head. “No, no. That’s not a problem. I understand all that, anyway. I don’t need a lawyer to help me with it. I make all my specific bequests, and then I say, all the rest, remainder and residue of my property I leave to blah, blah, blah. Right?”

“That’s essentially right.”

“Fine. What else do I have to do?”

“If there’s anyone you wish to disinherit, don’t just omit them. Mention them by name and state that you are disinheriting them. ‘To Cousin Fred I leave nothing because he’s a schmuck,’ or words to that effect.”

Walsh never cracked a smile. “What else?”

“When you’ve finished all that, you sign your will. That’s the last thing you do. And sign it at the very bottom.”

Walsh looked at him. “Why wouldn’t I sign it at the very bottom?”

“You would and you should. That’s the place to do it.”

“Then why do you even mention it?”

“To make sure there’s no confusion. See, you already started the document, ‘I, so and so, being of sound mind and body,’ etc., etc. Since you are writing in longhand, some people might argue writing your name at the top in that manner constitutes a signature. Whether it does or not is a moot point if you simply sign it at the bottom. Also, signing it at the bottom verifies the fact that the will is indeed over, that there isn’t an additional page kicking around someplace that somehow got lost.”

“Fine. Fine. So if I do all that, I’m set?”

“You should be.”

“And this will take precedence over the prior will, even though that will was prepared by lawyers and signed in the presence of witnesses?”

“It should.”

Walsh frowned. “Why do you say ‘should?’”

Steve smiled. “Because anyone can hire a lawyer to argue anything. If the heirs named in the prior will want to contest the new one, they can. It doesn’t mean they can win, and if you follow the instructions I’ve given you exactly, they shouldn’t win. But if you want a hundred percent, dead certain, money-back guarantee, you must understand that there’s nothing in life that’s a sure thing.”

“Yeah, yeah, sure,” Walsh said. “Protect your backside. But practically speaking, the handwritten will would be good?”

“That’s right.”

“I see,” Walsh said. He thought for a moment.

“Was there something else?” Steve asked.

“Yeah,” Walsh said. “Suppose there’s some delay?”

“What do you mean?”

“Well, suppose the handwritten will isn’t found for a while?”

“Why wouldn’t it be?”

Walsh waved it away. “That’s not important. I’m saying what if. Suppose for some reason this handwritten will is misplaced. The lawyers produce the will they’ve drawn. It’s probated. People inherit. Then the new will is found.”

Steve frowned. He looked at Walsh narrowly. “What’s your question?”

“What would happen then? Would the new will take precedence? Would the old will be upset? Would the heirs have to give the money back?”

Steve pursed his lips. “They might.”

Now it was Walsh’s turn to frown. “Why do you say ‘might?’ It’s my understanding they would.”

“Your understanding’s correct. And ordinarily they would. But …”

“But what?”

“You’d have a situation then. Be one hell of a legal dogfight.”

“I know that. But who would win?”

“The beneficiaries named in the handwritten will. Except for one thing. Collusion.” Steve shook his head. “Big problem, Mr. Walsh. If the beneficiaries named in the prior will are in a position to prove that the handwritten will was deliberately withheld, that it was planned that way, that they had been tricked into thinking they had inherited when they had in fact not, then they would have legal recourse. They would have a cause of action against you.”

“I’d be dead.”

“Against your estate. And if they were able to successfully sue your estate, reducing the amount that you have left to leave, they would be able to divert the money away from your beneficiary and into their own pockets just as effectively as if they had inherited under the old will.”

“I see, I see,” Walsh said. “That’s all right. That’s not the case.”

“Oh, isn’t it?” Steve said. “You come in here and ask me that specific question, I have to assume that that’s exactly the case.”

Walsh grinned. “Yes, but you’re a lawyer. You don’t go blabbing everything you know. There’s a law of privileged communications, right? Everything I tell you is confidential. So, no problem. Collusion? What collusion? We’re talking hypothetically here.