Acts of Independent Significance

The population in general, and litigators in particular, do not appreciate vague language. They want language that is to the point. They want language that addresses specific issues. They do not want language that is open to multiple interpretations.

There are times, however, that such language is necessary. Sometimes broad language is essential for capturing an array of situations. When drafting a will, it may be essential to incorporate such language so that the desires expressed in the will encapsulate a number of situations. If the will contained language that is narrow, the person drafting the will would need to constantly change the will as his or her circumstances change.

This rule is covered under the “Acts of Independent Significance” Doctrine, which states that a will can distribute or dispose of property by referring to circumstances or events that occur outside of drafting the will. Those circumstances or events are relevant provided that they relate to the will.

Changed Circumstances

Suppose the person drafting the will collects vintage cars. He constantly buys and sells cars. He writes in his will that “my son and daughter will split my vintage car collection, with my son taking half of the oldest cars and my daughter taking half of the newer cars.” Suppose the person drafting the will dies 30 years after finalizing it. During those 30 years he may have bought and sold numerous cars. At times the older cars were significantly more valuable and at times the opposite. Because the vague language is recognized under the California Probate Code, it is valid. The Probate Court will consider the Will’s language and apply it to the circumstances at the time of death.

Another example is when the testator devises his business. Suppose the testator has business partners and wants to leave his share in the company to the other partners. Although the partnership structure can change, if the testator states in his will that he is leaving his share in the business “to be split equally among the partners,” then the partners, at the time of death, will be the beneficiaries. Partners to a business are always changing.

Suppose the California Probate Code did not recognize such Acts of Independent Significance. In such an instance, the testator’s will would be invalid upon death. Consequently, the testator would need to redraft the will every instance that there is a change in circumstance.

Referenced Event

Even a future event can determine the beneficiaries of a will. Suppose a testator drafting a will states that the residual part of his will shall go to the beneficiaries of his brother’s will. In the event that the brother passes before the testator of the will, the brother’s beneficiaries will become beneficiaries of our testator’s will.

Structuring a will with Acts of Independent Significance provides a testator with the ability to devise property as he or she sees fit. This flexibility is important because things are constantly changing. Considering drafting a will? Speak with the trust and estates firm of Melanie Tavare.

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