The general provisions portion of your simple will is where you will include a few important paragraphs that will affect how your simple will should be interpreted. Those paragraphs will include some definitions of words and phrases used in the simple will, and clauses about genders of words, severability, governing law, and headings.
Our simple will template already contains all of these general provisions. You will only modify this portion of your simple will to remove definitions of any words or phrases that you did not use, leaving the rest of the general provisions in place. Even though this portion of your simple will does not require much editing, we explain what each of these general provisions means, below.
Gender of Words
In the English language, nouns and pronouns that are often found in a will, such as “children,” “he,” “hers,” and “them,” can indicate gender of the person(s) to which they refer, as well as whether the words refer to one person (singular) or more than one person (plural). Unfortunately, when writing a will, it is often the case that the testator does not yet know the number or gender of the people he or she is writing about.
For example, a testator with no children may want to make a gift in her will to her children on the hope that some day she will have children, without knowing their genders or how many children she will ultimately have (or whether she will have any children at all). Nevertheless, to make a gift to her children, the testator must use a word to refer to them, and the word she chooses will be either singular or plural. In these instructions, for example, we have encouraged you to use the word descendants, which is plural, when leaving gifts intended for all of your children to share.
As you can see from this example, a testator will often use nouns or pronouns when writing a will, even though the nouns or pronouns may not accurately reflect the gender of the person(s) to whom they refer, or whether they refer to one person or more than one person. If such a noun or pronoun turns out to be inaccurate at the time of the testator’s death, it can create the appearance that the testator made an error when in fact he did not.
To resolve this difficulty, our simple will template includes a paragraph that explains that, whenever the context requires it, every word that indicates a gender (or absence of gender), such as “she,” “him,” or “their,” can mean all genders. Likewise, any word that indicates it is singular or plural can mean either singular or plural as the context requires.
Sometimes, even when a will is drafted very carefully, a court may determine that one of its terms violates the law or is otherwise unenforceable. This can occur for a great variety of reasons, including, but not limited to, typographical and grammatical errors, misunderstanding of the law when the will was drafted, and changes in the law after the will was drafted. If a court finds that one term in a will is unenforceable, the court might decide not to enforce any of the other terms of the will. Our simple will template includes a clause to encourage a court to enforce the remaining terms of your simple will, even if it finds one of the terms is unenforceable. Such a clause is called a severability clause.
All of these instructions for drafting a simple will are based on the laws of Washington State. Laws in other states can vary significantly from the laws of Washington State. It is important that the laws of Washington State, not some other state, are applied when your will goes through probate to avoid inconsistent rules from other states that would lead to your simple will not doing what you intended for it to do. Accordingly, our simple will template indicates that your simple will should be governed by Washington State’s laws.
Throughout your simple will there are article names (such as “4. GIFTS“) and paragraphs that begin with bold text (such as “3.1 Payment of Debts.”). These are headings, which are included as a visual aid to help someone reading your simple will understand how it is formatted and find any provision they seek. However, these headings are not complete sentences and should not themselves be given any legal effect. Therefore, our simple will template includes a clause that states that headings should not affect the interpretation of the simple will.
Our simple will template includes several words and phrases that should be defined in your simple will if you use them in your simple will. Those words and phrases include descendant, right of representation, per capita at each generation, and share and share alike.
Edit Your General Provisions
Open your copy of the simple will and locate the heading entitled GENERAL PROVISIONS. The only change you should make to this section of your simple will is to delete each paragraph defining a word or phrase that you did not actually use in the earlier sections of the simple will. The only paragraphs that you should consider deleting in this way are the ones entitled Descendant, Right of Representation, Per Capita at Each Generation, and Share and Share Alike. Leave all of the other paragraphs in this section of your simple will intact. If you used all of these defined words in the earlier sections of your simple will, do not delete any paragraphs.
If you do delete any of the paragraphs in this section of your simple will, be sure to correct the numbering on the remaining paragraphs.
Example General Provisions
Below is an example of how fully-drafted general provisions might look in the simple will of a testator who used all of the defined words and phrases except “right of representation.”
8. GENERAL PROVISIONS
8.1 Context. As the context may require, the gender of all words used herein shall include the masculine, feminine, and neuter, and the singular of all words shall include the plural and the plural the singular.
8.2 Severability. If any provision of this instrument is unenforceable, the remaining provisions shall remain in full effect.
8.3 Governing Law and References. This instrument shall be governed by Washington law and by applicable federal law. All references made to the statutes or legislative acts of any jurisdiction include any amendments and successor legislation.
8.4 Headings. The headings in this instrument are included for convenience only and shall not affect the interpretation of any provision hereof.
8.5 Survive. The term “survive” when used in reference to a given person, shall mean to continue to live for at least twenty (20) days after the death of that person.
8.6 Descendant. The term “descendant” when applied to a given person, shall include such person’s children, grandchildren, great grandchildren, etc., and shall include both descendants by blood and descendants by adoption.
8.7 Per Capita at Each Generation. When an estate or any interest therein passes “per capita at each generation” respecting a given person, the same shall be divided into as many equal shares as there are (i) surviving descendants of the person in the generation nearest to the person which contains one or more surviving descendants, and (ii) deceased descendants of the person in the same generation who left surviving descendants, if any. Each surviving descendant in the nearest generation shall be allocated one share. For shares in the latter category, if any, the same process of dividing and distributing shares shall be repeated in like manner at each subsequent generation until all shares have been distributed. No descendant being a grandchild or remoter descendant of the person will take a share if his or her parent is alive and takes a share.
8.8 Share and Share Alike. When an estate or any interest therein passes to designated beneficiaries “share and share alike,” the estate or interest shall be divided into as many equal shares as there are surviving beneficiaries so designated. Each such surviving beneficiary shall be allocated one share, and the anti-lapse provisions of RCW 11.12.110 or any similar or successor statutes shall have no effect.
Once you have finished editing your general provisions, go back to the list of instructions.
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