MSBA Top 25 Blawg of 2011

2011 LexisNexis Top 25 Estate Planning and Elder Law Blog

Tuesday, July 31, 2012

Obscure Will Requests, Olympic Edition

A few days ago, I had the best non-sports, sports radio station in Minnesota, KFAN, on in the background and a tidbit caught my attention. For those of you not familiar, during the 1972 Olympics, the US and Soviet men's basketball teams met in the gold medal finale. During the last few seconds of the game, confusion of officials, among other things, led to controversy as to whether the Soviets won fair and square. The US team declined silver and those medals still likely sit in some Olympic Committee vault in Switzerland. One of the players, Kenny Davis, was interviewed. His will reportedly states that his wife and descendants are prohibited from accepting silver.

In many ways, obscure will requests can be just that, requests. They can help inform family members about your wishes, but may have questionable enforceability.

Sometimes, these type of requests are viewed as "precatory" or "wishful" if the statement has any language demonstrating a recommendation, request, wish, or expectation (such as "I hope my family never accepts the silver medal") as distinguished from an express direction, (such as "My family is prohibited from accepting the silver medal"). In those cases, courts, Minnesota's included, have a history of going further than unquestionably applying the request, but rather dig deeper to determine what the true intent of the will writer (testator) was and attempt to look at the present day circumstances through their eyes to figure out what the person would have done, had they anticipated those circumstances. Sometimes, in using this test, a court ends up straying from the letter of what's in the will, for example in Long v. Willsey, 156 N.W. 349. The court in that case said it this way; "to ascertain and give effect to the intention of the testator should be the guiding purpose in construing a will. To that end the meaning of isolated clauses and paragraphs may be modified by the evident intention deduced from a consideration of the whole document."

Even if the wording is viewed as an express direction, practicality can be an obstacle. If one family member were to go against an express direction, say accepting a silver medal, other family members might want to bring an action to prevent it, but might not have the spare cash lying around to pay the legal fees to bring the question to court.

One solution to the money problem may be to condition other gifts in the will on following the request. However, Minnesota courts can ignore the condition if they determine the condition is against public policy. Although this is rare, care should be taken to reduce that risk.

In the end, obscure will requests can be complicated, both legally and practically, to enforce, but they can help communicate your wishes to your heirs, devisees, and personal representatives.

Here's a link to the KFAN podcast. http://www.kfan.com/player/?mid=22292934&station=KFXN-FM&program_id=KFAN_Barreiro.xml&program_name=podcast

Here's a link to a Sports Illustrated column with more information on the controversy. http://sportsillustrated.cnn.com/vault/article/magazine/MAG1003894/7/index.htm

Oh, and U-S-A, U-S-A!