Episode 22: Controversial Clauses What to Include and Exclude in Your Will

Estate Planning Lawyer, Peter Klenk

Controversial Clauses What to Include and Exclude in Your Will

Hi, everybody. It’s Peter Klenk from Klenk Law, and we’re together once again to talk about death and taxes—two things that are inevitable. So we might as well talk about them, right?

Today, let’s discuss what you might want to add to your will and what you might not want to include. We’ll cover controversial clauses—what to include and what to exclude from your will.

You’ve probably seen movies where everyone gathers in the library with their whiskeys and gin and tonics after the passing of a family patriarch. The lawyer reads the will, revealing dramatic statements about who gets what and why. Well, that’s TV. In reality, there is no dramatic reading of the will. If you want one, I’d love to do it, but no client has ever taken me up on it—despite my theatrical background being perfect for the role.

What actually happens is simple: when someone passes, the will is filed, and everyone gets a copy. They read it at home over coffee in their pajamas. That’s how it works.

So, what should and shouldn’t you include? Most wills are straightforward—dividing assets fairly evenly among heirs, whether you like them or not. There’s usually nothing particularly positive or negative stated; it’s just a transaction. But sometimes, people want to treat someone differently—perhaps a wayward child or an estranged spouse. Life happens, and sometimes people want to reflect that in their will.

The problem is, we want to avoid unnecessary expenses after you pass. Will contests can be very costly. At my firm, we have a three-person litigation team, including my Navy buddy Glenn Breidenour. We love will contests—they’re fun, but they’re also very expensive. You probably don’t want your will to be challenged.

So, how do you reduce that risk? One way is by avoiding inflammatory statements that encourage fights. If you want to vent about someone, write it in a separate letter. If it’s in the will, it becomes part of the official interpretation.

For example, if you say, “My son and I haven’t spoken in years, so I’m leaving him out,” what happens if you reconcile six months before you die? Maybe you still didn’t want to leave him money, but everyone saw you reconnect, and now he has grounds to challenge the will, arguing that the exclusion no longer reflects your wishes.

Similarly, if you don’t mention a child at all, they could argue you simply forgot about them, perhaps due to dementia. Even if they don’t win the case, it could lead to a costly legal battle. Instead, it’s best to explicitly acknowledge them and state that they are being intentionally excluded.

Whenever your will deviates from the usual pattern—assets flowing naturally to your heirs—it’s important to think through potential conflicts. That’s where we come in. We can help you structure your will to minimize disputes and ensure your wishes are honored.

Another area requiring clarity is funeral arrangements. Many people include detailed instructions in their will, but remember—nobody reads the will until after the funeral. If you have specific wishes, they need to be communicated outside the will to ensure they are followed. The same goes for pet care or guardianship arrangements for minor children. These need to be addressed in a way that ensures they are acted upon immediately after your passing.

Your executor or trustee also plays a crucial role in ensuring your wishes are carried out properly. Choosing the right person and making sure they are informed is essential.

This is just a high-level overview, but the key takeaway is this: talk to your estate planning professional. We ask detailed, sometimes personal, questions for a reason—to understand your situation, anticipate potential issues, and craft a will that prevents unnecessary conflict.

Ultimately, you want your heirs to be able to sit together at Thanksgiving, not spend years battling in court. If you’d like to discuss your will, give us a call at (215) 790-1095. Our administrative center can connect you to any of our offices. We’d be happy to help brainstorm and ensure your wishes are respected.

That’s it for today. Please like and subscribe so we can continue these conversations. Be well—Peter Klenk signing off.