A Will-Drafting Experience
The Law Teacher, Volume 10, number 1 (Fall 2002), p. 9-10.
About the Author
Diane J. Klein teaches at Thurgood Marshall School of Law, Texas Southern University, 3100 Cleburne St., Houston, TX 77004; (713) 313-4312; fax (713) 313-1076; firstname.lastname@example.org
Wills and trusts is a challenging, engrossing area of law. Unfortunately, students often don't think so. How can we bring Wills and Trusts classes to life? In my institution Wills and Trusts is a required, four-unit, second-year course. Many students come in expecting the course to be dry and boring and that it is a course "for rich people" (or their lawyers). Some are further daunted by the fact that I teach the class in two two-hour blocks, rather than the four 50-minute periods used by most of my colleagues. In the hopes of stimulating student interest (and sharing my excitement and enthusiasm for the subject), I have looked for practical ways to liven things up.
My first step in this direction relates to the books assigned. Although I had the great good fortune to be taught by Jesse Dukeminier at UCLA School of Law (I think of him as the Truman Capote of trusts and estates law) and use his casebook, my primary "text" is the actual Annotated Texas Probate Code. I have concluded that my students are best served by an in-depth study of the probate code and leading cases applicable in the jurisdiction where most of them are likely to practice and take the bar. By the end of the semester, each student's edition of the Code is well-thumbed, and students can confidently maneuver through it. I supplement the casebook and Code with Mark Reutlinger's excellent Wills, Trusts & Estates: Essential Terms and Concepts.
These materials ensure that students feel that they are learning the "real" law of Texas, rather than the "law of nowhere" so many casebooks appear to contain. The sense that this "bar course" will really prepare them for the Texas bar ensures a higher level of participation than might otherwise be expected. My next goal is to get the students thinking like estate-planning lawyers (albeit at a basic level).
The appropriate practical exercise in a Wills and Trusts class is obvious, though underutilized - having the students draft an actual will. For the past two years in my class, the midterm assignment has consisted of a will-drafting exercise together with a family tree, for intestate succession purposes. In the spring of 2001, students drafted their own wills. This past spring, I used a more full-fledged, role-playing approach and had the students pair up to draft one another's wills. Each student served as both client and lawyer. As clients, students must provide lists of assets and bequests. Lawyers and clients meet to discuss the plan and review draft documents. Although the project does not count for more than 15 percent of the grade, most students spend a significant amount of time and effort on it.
In both years, the assignment required the students not only to draft but also to execute the will. Most of this year's students also included self-proving affidavits (the precise language of which is provided by statute in Texas). Drafting, and especially executing, an actual will, an instrument that could take legal effect in the unlikely event that a student died, riveted students' attention in a way that an abstract discussion of notions like animus testandi never can do. Those students who wanted to be sure that the will drafted for the assignment never took effect quickly learned the ins and outs of holographic revocation. The students' first impulse -- simply scrawling "no animus testandi" or "sample will" across the bottom of a formally executed and attested will -- won't work, however "obvious" it might seem.
The comments I provide on the wills also put the students in an unusual position for a law student -- imagining answering or explaining their drafting to a lawyer or dissatisfied heir of a client, rather than sitting as a would-be appellate judge, evaluating the work of others. It is much easier to critique some nameless lawyer's bad drafting than to explain your own unclear or infelicitous language.
The will-drafting exercise and follow-up comments open students' eyes to the dramatically forward-looking nature of will-drafting and the imagination required of a first-rate estate planner. Instead of analyzing only the imaginary-seeming estates of long-dead testators in books, students actually have to consider what will happen (and what the testator wants to have happen) if she has another baby, if his brother the executor predeceases him, if the family home is sold 10 years before the testator dies. Students must wrestle with the actual issues facing will-drafters -- how many highly specific bequests to leave, how much to dispose of through a residuary clause, how best to anticipate after-acquired property, and when changes in the estate are so significant as to warrant the drafting of a new will or codicil.
The interactive or role-playing component of the assignment also brings vividly to life a point Wills and Trusts and Estate Planning professors often make -- that the legally or financially "best" plan is not necessarily what the client wants. For example, I advise my students that it is often desirable to have a non-natural person (a church, an educational institution, a charity, etc.) as a contingent residuary legatee. In their role as lawyer, most students urged this upon their partners -- but as clients, they suddenly realized that they simply might not want to do this, whatever its purported "advantages." Students learned that educating and persuading clients -- up to a point -- is a crucial part of estate planning.
Most of all -- and I admit to the obvious bias of someone who enjoyed practicing in this area only very briefly -- actually drafting a will and participating in setting up even a rudimentary estate plan is fun. Because of the many rules, it has the feel of a "game," while at the same time students at least get a taste of the intimacy and gravity of this area of the law. Each year, a number of students go all out on this assignment, using proper paper and backing and staging elaborate execution ceremonies with real notaries (part of the self-proving affidavit process under Texas law). Many review and adapt various form wills available online and elsewhere, although this is not required. While only time will tell if any of them actually enter this area of practice, I like to think that those who do will remember (probably with a mixture of pride and embarrassment!) the first will they ever drafted -- for my class.