The importance of arranging for the division and distribution of property after one’s passing cannot be overstated. The provisions for such division and distribution must be tailored to one’s personal needs and expectations, rather than be incorporated into an oversimplified ready-made template.

Some people would be happy with a will that divides their estate between the children in equal shares. Others would like to ensure that the estate, in whole or in part, is not distributed at once, but rather provides their beneficiaries with a fixed income over time, and others still would like their spouse to receive all of their estate while ensuring that their children are taken care of upon the spouse’s passing (by a mutual will and testament). There are, of course, other factors that affect the guiding considerations in the drafting of a will, such as the age of the testator and more.

A will should be drafted after analyzing the family relations and the financial situation and taking into account numerous factors:

• Gifts made during one’s lifetime to some of the children, on an unequal basis. For example, where an apartment is purchased and registered in the name of one of the children, thereby making such apartment the property of such child, rather than part of the estate, there is room to consider whether to deduct the value of the apartment from such child’s future share in the estate.
• Children from a previous marriage: Will they be beneficiaries on an equal footing with the children in common from the present marriage or otherwise?
• • What restrictions, if any, will be imposed on a spouse who receives all of the estate as the beneficiary of a mutual will? Will such spouse be able to live in the marital home with a new spouse? If the answer is positive, will restrictions be imposed to preempt future claims of community property? Will such spouse be able to give gifts in unlimited amounts? Will such spouse be able to give different testamentary instructions?

  It is important that the will specify the existing property (various accounts, real estate, shareholdings and partnerships, loans given by the testator, etc.) in order to help the beneficiaries identify and find the property when the time comes and facilitate future contracts between the beneficiaries.

  Drafting a will and testament is a process meant to clarify the needs of the testator, with a profound knowledge and understanding of the legal and financial tools available for fulfilling such testator’s wishes.

  I also place great importance on parents’ wish to ensure particular forms of distribution to the beneficiaries, especially where there is a special concern in anticipation of a future difficulty. It is for this purpose that there are estate administration or trust mechanisms that allow for distribution of the estate over time, according to the directions of the testator.

  My extensive experience in drafting wills also comes into play where moral decisions need to be made, e.g., with regards to the appropriate distribution between the beneficiaries and other issues.

  Where a will is drafted appropriately, it allows for an accurate reflection of the testator’s wishes, and in due time – the fulfillment of such wishes. It is not a seldom occurrence for courts to deal with the interpretation of wills that were not drafted with sufficient clarity, at times leading to an outcome that reflects the court’s instructions, rather than the testator’s wishes.