THE ADVOCATE 381
VOL. 80 PART 3 MAY 2022
“What does the will actually say?” Mary asked.
“Mary, there is a lot of what we lawyers call ‘boilerplate.’ One would think
we get paid by the word. The important part says you are to get an income
for your life and on your death the property goes to John, Allison and
Emily. It’s pretty simple.”
She asked, “Peter, can you show me the part of the will where it says all
of that?”
The will was a short document, so Peter readily found the relevant passage.
Mary read it, read it again and then said, “Peter, as I read it, it uses the
definite article ‘the’ income for life, not the indefinite article ‘an’ income. I
take that to mean that I am entitled to all of the income, not just some of
the income. Am I wrong?”
There could be no denying her conclusion. Peter hid his mild annoyance
and tried another tack, saying, “But Mary, the estate will produce much
more income that you could possibly use. What didn’t go to you would
become part of the property that would eventually go to your children.”
“I understand that, Peter, but if the income is all mine to begin with,
shouldn’t I be the one that gets to determine how much I ‘could possibly
use’? Any income I didn’t use would still go to the children.”
Peter was mildly annoyed, but there was no denying the propriety of her
analysis. He cloaked his annoyance and said, “Alright, Mary, if you insist,
we certainly won’t stand in your way.”
“I’m sorry, Peter,” Mary replied, “I don’t insist on anything. I just want to
understand. This is how I will have to get along for the rest of my life, and
I shouldn’t be begrudged a few moments now to get things straight.”
“OK,” Peter said, “Is that everything? Can we go now?”
Again they began to rise, and again Mary interjected. “One more thing,”
she asked, “What is the income. Where does it come from?”
Peter responded, “It is basically made up of interest and dividends and
some rental income. All very passive.”
“Who gets to choose the investments?”
Again Peter responded, “That’s my job as executor and trustee. I would
do the selection. Actually, John and I will do it together.”
“Help me understand this,” Mary said, “I believe that some investments
pay more income than others. For instance, I understand that Warren Buffet’s
company never pays a dividend, but the shares appreciate greatly. In
such case, I would get nothing and all that appreciation would go to the children.
Wouldn’t it be better if I were also made an executor or trustee or
whatever you call it?”
For a moment, the veneer of Peter’s patience gave way, and he said, “But
Mary, you are a beneficiary. That would be an obvious conflict.”