In view of the uncertainty of life it is incumbent upon us not to wait until old age or critical illness to make provision for dependents and for the cause of God. The time to make a will is when one is well, and not too old ; for old age and sickness at the time a will is drawn are likely to be seized upon as grounds of contest. Our workers need a Personal knowledge of how to make such provisions, not only for themselves, but in, order to be able to advise members of their churches who may have property and means to leave to the cause.
Care should be exercised by our ministers, however, in making wills for others not to unduly influence them to make gifts to the cause; for the law is not unmindful of the immense influence which may be exerted over aged or sick people by the clergy. Statutes have been enacted in some States which invalidate deeds, wills, and other instruments drawn up by clergymen. Therefore it would hardly seem fitting for the church pastor to actually draw up a will for another, or to be present when the will is made.
The law does not require that an attorney be employed in making a will, but unless the will is very simple, it is well to have competent legal advice in drawing it. There are so many technical Points in the law that it makes it extremely hazardous for laymen to try to draft or execute wills, trusts, and deeds without skilled legal counsel. We are admonished in the "Testimonies:" "Those who make their wills should not stare Pains or expense to obtain legal advice, and to have them drawn up in a manner to stand the test."—Volume III p. 117. The services of a lawyer will surely be needed if there is an estate worth several thousand dollars, or if there is a possibility that the will could be contested. This service costs but a few dollars, and is well worth the charge.
Laws regarding wills often vary in detail in various States ; therefore it is difficult to set down a list of rules that would apply to all cases. Nevertheless we are confident that ths information contained in this series of articles, written in more or less nontechnical language, will be appreciated and helpful as guiding principles. For further study and review, excellent counsel is contained in Section V of the "Church Manual," and in the "Testimonies," Volume II, Pages 116, 117, and Volume IV, pages 479, 482.
"While they have sound minds and good judgment, parents should, with prayerful consideration, and with the help of proper counselors who have experience in the truth and a knowledge of the divine will, make disposition of their property. If they have children who are afflicted or are struggling in poverty, and who will make a judicious use of means, they should be considered. But if they have unbelieving children who have abundance of this world, and who are serving the world, they commit a sin against the Master who has made them His stewards, by placing means in their hands merely because they are their children. God's claims are riot to be lightly regarded."—"Testimonies," Vol. III, p. 120. (See also Vol. V, pp. 155, 156.)
Observe carefully the distinction made between children who are afflicted or struggling in poverty, and unbelieving children who have an abundance of this world's goods. Having been a trustee of the General Conference Corporation for many years, I venture to make a few suggestions on the making of wills. The subject will be treated in as nontechnical a manner as possible; yet obviously from the nature of the matter dealt with, certain technical terms cannot possibly be avoided.
What is a Will?—A will is the legal declaration of a man's intention concerning the disposition of his property, to take effect after his death. By the terms of a will, a person makes the final disposition of the property which he has acquired during his lifetime. This disposition affects the future welfare and happiness of those most dear to him. Frequently, however, this subject is given little or no thought, and is never planned for, with those whom he holds most dear. Thus, often, upon the death of the head of a family, his wife and children are immediately plunged into financial difficulties and straits, and are required to take up business affairs of which they know nothing.
Four Methods of Transferring Property. —A will should really be considered as a last resort, or as the least desirable method of transfer. The various methods of transfer, in the order of choice, may be listed as follows:
a. An outright gift, donation, or contribution, made while living. If a giver retains possession and control of personal property during his life, any gift he may make of such property, no matter how fully proved, is ineffectual to pass title at his death. Such property must be included in a regularly executed will to be properly conveyed. But if he surrenders possession and control of such property before his death, the gift is valid. A donor's check is ineffectual as a gift, if presented after his death; but not so the commercial paper of a third party delivered before the donor's death.
b. An annuity contract. Some are more interested in an annuity contract than in leaving their property to heirs or to a religious corporation. Annuity agreements are much safer than wills. An annuity contains an agreement between a donor and a donee, whereby the donor makes a gift of a certain sum of money, for which he in turn receives annuity payments on this sum of money during his life, and upon his death the gift comes into the possession of the donee. All annuity agreements made with the General Conference must be written by the General Conference. Annuity deeds may be made out in cases in which the property consists largely of real estate. Copies of approved forms for annuity contracts can be secured from the General Conference headquarters.
c. A transfer of title, with life lease retained.
d. A properly drawn and executed will.
The first method is by far the best method. Make your gift while living, and there is little likelihood of that gift's being contested. The second, third, and fourth methods are subject to contest, depending upon the conditions under which they were executed. The fourth method is the most vulnerable. However, there are times when a will is the only method of transferring property that seems proper.
There are several advantages in making a will before death. The testator may select his own executor. Thus he can have someone known to be friendly to his interests, instead of a court appointee, known as an administrator. The testator can name his executor and give him greater powers than the statutes give to an administrator. The executor can be given practically unlimited power to sell, mortgage, or otherwise dispose of real or personal property, and the will may provide that he may serve without giving bond (unless it be a bond for a limited amount), or without receiving from the court an order of sale. (All States require confirmation of sales by court if handled by an administrator.) Without a will properly drawn, all these steps must be taken under bond, by order from court, and at an expense which the estate must bear. The testator can thus prevent intricate business cares and responsibilities from being suddenly thrust upon the members of his family, and especially at a time when they are not prepared to consider or handle them.
Classification of Wills.—There are four kinds of written wills—mystic, authentic, holographic, and ordinary. The first two are of restricted use. The holographic will is thus described; "Every particle of the will, every word, letter, and figure, including date, where required, consisting of the day, month, and year, must be in the hand of the testator down to and including his signature." Such wills are authorized by law in nineteen States of the Union without witnesses. A holographic will may be changed into an ordinary will by the addition of witnesses and the necessary formalities of execution. The most common form of will is the ordinary will, which, if properly executed, is valid in most of the States. Laws regarding the disposition of property must be strictly followed in accordance with the statutes of the State or country in which a person resides. A will valid in one State can generally be proved in another. However, what is valid in one State may be invalid in another.
Execution of Will.—Sample and suggestive forms of wills are presented in the next article of this series. We shall assume now that the will has been prepared, its provisions being in exact accord with the testator's wishes. The testator then calls together the requisite number of witnesses, and in their view signs the will. He should also sign his name on the left side margin of every sheet, thus preventing an exchange of sheets. He thereupon requests the witnesses to sign the instrument, which they do, adding also their place of residence. All the signing should be in the view and simultaneous presence of the testator and the statutory number of witnesses.
It is best to add the word "seal" after the signature of the testator, and he should make a scroll or circle with a pen enclosing the word "seal." Incomplete execution cannot be remedied by further formalities at a later time. The entire execution must be completed at one time. The testator should sign his full name, and not his initials only. A will may be executed at any time, day or night, holidays or Sundays.
Witnessing a Will. A will should always be dated and witnessed. It is preferable to have three witnesses in all cases, and four if convenient to secure them. Thus, in the event of death of one or two of the witnesses, there are still a sufficient number of witnesses to prove the instrument. Some jurisdictions require three witnesses. The witnesses need not know the contents of a will.
"Publication of a will" is making known to the witnesses that the instrument which the testator has signed or is about to sign is his last will and testament, and this act is required in all States as a formal part of the execution of a valid will. The testator should say: "This is my last will, and I want you to sign as witnesses." This statement by the testator is vital, and should precede the signing by the witnesses. Publication may be by the testator himself, or by someone else for him, in his presence and with his assent. The fact of publication should always be noted in the attestation clause. The attestation clause is one of the most important portions of a will, and should be very carefully drawn. Follow the form which will be given in Article 2 of this series.
The witnesses should always see the testator actually write his name. Then after he has declared the instrument to be his last will and testament, in his oresence and at his request, and in the presence of one another, they should sign as witnesses. No one should leave the room until the testator and all the witnesses have completely executed the will. It is best not to select a witness who must sign by mark. However, if one cannot write, his hand may be guided by another while he holds the pen.
If possible, select persons more than twenty-one years of age to act as witnesses. Business and professional men are preferred if they can be secured, especially the family doctor. Those acquainted with the testator are most desirable. Select no one as a witness who is a beneficiary under the will, or whose husband or wife is a beneficiary.
Corrections or Interlineations.—The sheets containing a will should be fastened together before its execution. If alterations and additions have to be made, write the will over, or make changes by codicil. The rule in regard to wills is that alterations or erasures are generally presumed to have been made after execution, instead of before; so they have no effect unless the will is reexecuted or the alterations are noted in the attestation clause. A codicil is an addition to a will previously executed, and should be executed with the same formalities as a will, with an attestation clause as in a will, and the same number of witnesses. Additional gifts to beneficiaries, to which reference is made in a codicil, should be stated to be in lieu of, or in addition to, those previously made in the will, according to the intent of the testator. If any of the provisions of the will are to be revoked, these should be stated with precision.
Revocation of Will.—A will may be revoked in whole or in part by a subsequent will or codicil, or by the testator himself intentionally burning, canceling, tearing, or otherwise obliterating the instrument. Such destruction must be by the testator, or by someone else in his presence and by his express direction, proof thereof by two witnesses being required by the statutes of some States.
Prudence demands that a will be so preserved that when it is needed it may be used, and in the same physical condition as when executed. It is a good plan to place the will in the custody of some disinterested person, preferably the testator's legal adviser, or it may be placed in the safety-deposit box of the local conference. The conference is usually notified at once of the death of a member, and the will can then be sent to the person to whom the conference has been directed to deliver it at the death of the testator. Another plan, which avoids any possibility of change in the writing, is to deposit the will with the register of wills (if there is one) in the county in which a person lives, taking a receipt from him. In most States the law requires a person who has charge of a will to make it known by filing it in a probate office, or by notifying the authorities of the existence of such an instrument.
_______ To be concluded in October
