You’ve Gotta Fight For Your Right to Make a Will! (Or What the Beastie Boys Can Teach Us About Estate Planning)


by Matt Ottemann

Ottemann, Matthew
mottemann@mcgrathnorth.com
(402) 341-3070

As with any musical group, people’s opinions of the music created by the group the Beastie Boys vary widely. But there is no denying that the Beastie Boys were popular among a significant segment of the population for decades – releasing songs in the 1980s, 1990s, 2000s, and even in this decade. I recall hearing songs on the radio from the Beastie Boys as a youth and I recall still hearing new songs on the radio from the Beastie Boys in the past year.

As avid music followers may know, a founding member of the band named Adam Yauch recently passed away from cancer. (This is how you know that you are getting older – entertainers and stars that you knew about as a child start falling ill and passing away from adult maladies and not from hard living.) Yauch’s will was offered for probate in a New York court. The majority of his estate was left to a trust, so the ultimate disposition of his assets was not public. But one provision in the will has been gaining attention from estate planning lawyers.

In life, Yauch was very concerned about the use of his music for advertising purposes. His will contained the following typewritten clause: “Notwithstanding anything to the contrary, in no event may my image or name be used for advertising purposes.” Apparently, Yauch became dissatisfied with this clause and thus also chose to handwrite in an additional phrase. The will now reads (the additional handwritten clause is underlined): “Notwithstanding anything to the contrary, in no event may my image or name or any music or any artistic property created by me be used for advertising purposes.”

This handwritten clause raises all sorts of interesting legal questions for attorneys. (Note for clients: “Interesting legal questions for attorneys” often translates into expensive and time-consuming legal processes for clients. Clients typically want to avoid being a part of an interesting legal question when possible.) First, there are a number of intellectual property issues, which are beyond the scope of this article. Second, this handwritten addition raises the question of the validity of these types of changes to a will. Can an individual simply make handwritten changes to his or her will, after the will is executed, and have those changes respected by a probate court?

The answer we would give is: Don’t count on it. Certainly one can find cases where handwritten changes to a will were made and the probate court examining the will respected those changes. This is most often true when none of the will beneficiaries or other potential heirs question or contest those changes.

One big problem with this strategy is that the law establishes a number of will execution formalities. These formalities have several purposes, one of which is to impress upon the person making the will the importance of the document which they are signing. By requiring a person to go through all of the formalities, including having witnesses and a notary, the law hopes that a person making a will shall strongly consider whether the terms of the will match their reasoned intent. If it is too easy to make a will, the law notes that some people will be swayed by temporary emotions and may execute a document that may not reflect their reasoned intentions.

When a person fails to comply with all of the will formalities, courts begin to question whether the person really intended to change their will. For example, was the person really just making notes of potential changes they wanted to their will, but later decided against them? Was the person coerced by a family member into making these changes, when such coercion would have been uncovered and thwarted if the decedent had to visit a lawyer to change his or her will? Was the decedent really the person who made the changes? In the end, a court may choose to recognize these changes, may disregard these changes, or may decide that the will itself was revoked (e.g., if the will contained significant cross outs). In the first two instances, there is a real possibility that the decedent’s property will not end up where it should. In the last instance, there is a real possibility that the decedent would be treated as dying without a will, so the decedent’s assets would pass under the state’s intestate laws. All of these outcomes defeat the point of estate planning.

We understand that visiting a lawyer to execute a will involves cost and some inconvenience. Many clients think that they are saving time and money by writing in changes to their will themselves. But often, such handwritten changes just generate will contests and disputes – which cost far more to resolve than a new will would have cost. In addition, these changes could cause all of the planning undertaken by the decedent to have failed.

Our advice is to avoid this uncertainty. If you want to change your will, do it right. Seek out legal counsel and execute a new will. The cost of a will now is far less than the cost of a legal battle later. Feel free to contact the McGrath North Tax Group for help in creating or changing your estate planning documents.

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