How to Think about a Last Will and Testament Like a Lawyer (or How to Ruin a Joke)

I was recently perusing the internet – as one does – and I came across a joke on Starts at 60 about a man in a nursing home making his Last Will and Testament. I read it. I chuckled. I decided I wanted to share it with you.

Doug was writing his last will and testament in his nursing home. He was surrounded by his wife, his three daughters and his nurses.

Slowly he went through each family member and told them what they stand to inherit, after he has passed away.

“My daughters, each of you will take my offices in the city, my apartments in the east end and the Mayfair houses,” he said. Doug then turned to his wife and added: “My darling, you will take all of the residential buildings on the banks of the river.”

The nurses had been caring for Doug for several months now and were shocked to discover how much property he owned. One of the nurses, curious to know how he gained all of this property, leaned over to his wife and whispered: “Your husband must have worked very hard to have accumulated all of this property.”

Doug’s wife looked at the nurse in confusion and replied: “Property? No! The old bugger is leaving us his paper route!”

Starts at 60 Writers, Doug was Making His Final Will and Testament Joke

But then, after chuckling, I thought about it a bit more. This was a joke about a Last Will and Testament. That’s in my wheelhouse! And my lawyer brain started analyzing the joke – as one does.

So, I thought about Doug being in a nursing home making his Last Will and Testament. I thought about him doing it while surrounded by his family and his nurses. I thought about all of Doug’s family: his wife and three daughters, and the inheritances he was leaving for his family.

I wanted to give you a sneak peek into how an estate planning attorney looks at preventing a will contest as well as how the estate planning attorney thinks about maintaining family continuity after a loved one passes away.

Preventing a Will Contest

If there were ever a reason for an heir to raise a contest, you’d be looking at a good one. There’s a potential capacity issue for Doug, there’s an undue influence issue, and there’s an improper execution issue. And besides that, there’s a question about whether you can pass down paper routes in a Last Will and Testament.

Regarding Doug’s capacity, Doug is in a nursing home. There’s a big question about what, if any, kind of medications is Doug taking. If he is taking medication, are these medications that could possibly mess with his mental state? This could mean that his doesn’t have the capacity to make his Will, especially if he’s saying “my offices,” “my apartment,” and “the Mayfair houses.”

Clearly this is all part of the joke and the punchline when the nurses misunderstand Doug’s meaning that these are paper routes and not buildings he owns, but are we sure that Doug understood that? He didn’t say, “my route for the Mayfair houses.” He said “the Mayfair houses.” When an attorney is trying to determine if a person has the capacity to make a will, the first thing we do is ask the person to name what they own. If Doug were to say “my offices,” “my apartments,” and “the Mayfair houses,” without clarifying that those were buildings along a paper routes, we’d wonder if he really understood what he owns and if he has the capacity to determine how it should be devised upon his death.

The next question is about undue influence. The joke doesn’t say anything about a person interfering in Doug’s decision-making or trying to make him devise his property anyway that he doesn’t want to, but the opportunity is ripe for it. There is no indication that the paper routes mentioned are of near equal value. So it’s not clear if the route was divided up as evenly as possible. While that’s not a requirement under the law, an uneven distribution with no explanation can be a sign of undue influence. It’s also unclear if any of his three daughters visited him alone (which, hopefully they were good daughters and visited their father frequently), and if during those visits they exerted pressure on their father for certain “better” routes. If one of the routes provides clearly better income than two of the other routes, assuming the one his wife got has the most value, then there’s an argument to be made that the daughter receiving that route unduly influenced her father.

Next, we’d look at whether the execution of the will was proper. In New Jersey, a will has to be signed by the testator (Doug) in the presence of two witnesses (appears to be none). It doesn’t sound like there is a written will here. There might be, but it’s not mentioned. If there is no written will, then there is no will and Doug’s family will have to follow the statutory guidelines. But if there is a written will, then it has to be signed by Doug and two witnesses who need to attest to his signing it. It’s not clear if Doug signed anything, and it’s not clear that there are two witnesses. If there are no witnesses, then the execution of the will was improper because it doesn’t meet the legal requirements.

There is also the question of whether Doug’s will is a “holographic” will. A holographic will is a mostly handwritten document that is signed by the testator and is intended to be a Will, but does not meet the other legal requirements. If Doug’s will is handwritten, but does not have witnesses, then his wife would have to file an application to admit a “holographic will.” That means she’d have write a complaint, file it with the court, appear before a judge, and present her argument or she could hire an attorney and pay him or her a couple thousand dollars to do that for her. In either case, Doug’s plan regarding his assets and family might not happen because of an execution issue.

Maintaining Family Continuity

Aside from these will contest issues, there’s also a question about taking care of his wife and family. Does the family have enough in assets, insurances, and income to survive without his income? Since his wife was at his bedside in the nursing home, it seems as though she is not living there and is mobile. Does the paper-route for the residential houses along the banks of the river provide her with enough income to maintain her current lifestyle after he passes away?

For that matter, who is currently running the routes? Does Doug own the routes and pays a driver to run them? If he’s in the nursing home, he’s probably not running the routes himself. If all of that is true, and yes, someone else is running the routes, and yes, the route Doug gives to his wife is enough for her to maintain her current lifestyle, is it even something that she wants? A paper route is akin to a business and it needs to be maintained. Does Doug’s wife have the training, skills, or licenses (if needed) to continue to run the business after he is gone?

Aside from looking at potential will contest issues, there’s also the question of whether or not the paper routes that Doug is talking about can be devised in a will. If a paper route can be passed down from parent to child, is there a better way to do that? Food for thought for another article.