Originally published in our May 2017 Newsletter
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By John E.S. Poyser*
Legalese can actually defeat a will. That happened in Franks v. Sinclair.[1] The will-maker was a mother and had two adult children, a son and a daughter. The son was a lawyer, and he was in tight financial straits. The will-maker had made a prior 1992 will that left her wealth not to her children but to a grandson named Jonathan. Jonathan was very close to his grandmother. She also believed that she had taken care of her children through inter vivos wealth transfers and other advantages that she had already conferred on them. The will in Jonathan’s favour had been made with her regular lawyer and after due deliberation. Two years passed. The son then prepared a new 1994 will for his mother. The effect of the new will was to disinherit Jonathan and redirected her wealth to pass to her two children in equal shares. He took the will to his mother’s residence along with two witnesses. He read the will over, line by line and word by word, while his mother and the two witnesses listened on. He then asked his mother whether she wanted to sign the will and she said she did. The will was signed and duly witnessed. The mother’s capacity was not in question. Undue influence was not alleged.
The validity of the will was challenged after the will-maker died on the grounds that she lacked knowledge and approval of its contents. One of the two witnesses to the will, being one of the son’s legal partners, a Mr. Chadwick, testified: [2]
Mr. Franks [the son] then read out the will. Although Mr. Chadwick did not have a copy to check it against, I am satisfied that Mr. Franks read the will in its entirety. Mr. Chadwick states that Mr. Franks read it very slowly in a clear and audible voice, and comments that he remembers this very clearly “because, at the time, I thought it was a bit over-the-top and unnecessary.
The dense language of the clause dealing with the residue was a real consideration taken into account: [3]
In considering the effect of reading out the will, the terms in which it is drafted are of central importance. The provisions of a will may be very straightforward, such that an elderly lay client will have no difficulty in understanding them. …. It was true of some of the provisions of the 1994 will, such as the specific legacies, the exclusion of Judith and the appointment of Jonathan and David as executors.
In my judgement, it is not however true of clause 8 which deals with the residuary estate. Clause 8 is in the following terms:
“I give devise and bequeath all the remainder of my property whatsoever and wheresoever both real and personal not hereby or otherwise disposed of by me unto my Trustees upon trust to sell call in and convert into money all such parts of the same as shall not consist of money but so that my Trustees shall have full power to postpone such sale calling in and conversion for so long as they shall in their absolute discretion think fit without being liable for loss and after payment thereout of my debts funeral and testamentary expenses to stand possessed of the same (hereinafter called “my residuary estate”) UPON TRUST for such of them my child or children as shall be living at my death and if more than one in equal shares absolutely PROVIDED THAT if any such child or children of mine shall predecease me leaving issue living at my death and who attain the age of eighteen years such issue shall take and if more than one equally the share of my residuary estate which such child or children of mine would have taken had he she or they survived me.”
I think it very unlikely that Mrs. Franks understood the effect of clause 8 just as a result of it being read out loud to her. It is expressed in the customary technical language of wills, which most lay people will find impenetrable and many may consider to be gobbledegook. There is the long preamble of the administration trusts before one reaches the principal gift, which itself refers only to “children” without any names, and is then followed by the dense language of the per stirpes substitution gift. It requires explanation. In my judgement, the reading of the will cannot be relied on as establishing Mrs. Franks’ knowledge and approval of its terms.
The complexity of the clause was such that the court clearly said that reading over was not sufficient and that an explanation was needed. There was no evidence that an explanation had been given. The court ultimately refused to allow the will to probate on the grounds of a lack of knowledge and approval[4]. The fact that a lawyer goes to the trouble of reading over a will to a client, in its entirety, may not save the will if that read-over amounts to no more than the “idle ceremony” referred to by McCombe L.J. of the English Court of Appeal in Burns Estate v. Burns. [5]
Franks v. Sinclair stands as an interesting example of a will denied probate by virtue of the barrier provided by legalese. The will-maker spoke English. The will was in English. But the English was in the impenetrable technical form that lawyers have traditionally inflicted on clients. Put another way, the client was literate, just not literate in legalese. There might be a practice point here. A solicitor who relies on a reading over with the client, without explanation, had better use plain language. The phrase “per stirpes” will mean nothing to a lay person. The lawyer in Franks v. Sinclair did not send the draft will to the client in advance of the execution. That would have been a small improvement – giving the client a more realistic opportunity to complain about the arcane language and ask questions.
The Challenge of Plain English Drafting
The following takes a clause from a will, drafted in the style of the 1800s, and then converts it in a series of steps intended to make it easier to read and understand. Some additional examples of plain language drafting are added later.
Target Language to Be Rewritten
Here is a traditional clause as it might appear in a will:
2. I nominate, constitute and appoint my wife, Jane Smith, my son, Tom Jones, and my lawyer, William MacDonald, of Halifax, Nova Scotia, and the survivor of them, to be the executors and trustees of my Will.
In the event of any vacancy occurring among my executors and trustees whether by death, resignation, refusal to act, incapacity or other reason whatever, I authorize the remaining of my executors and trustees to nominate, constitute and appoint a replacement or replacements by instrument in writing, it being my intention that there should at all times be more than one executor and trustee in office provided that if at any time there is no executor and trustee in office, then such person or persons as may be nominated, constituted and appointed by an order of a judge of the Supreme Court of Nova Scotia, on the application of any person interested in my estate, shall be my executor and trustee or executors and trustees as the case may be.
Upon every nomination, constitution and appointment of an executor and trustee as herein provided, all of the assets of my estate both real and personal and wheresoever situate then being held by my executors and trustees shall, so far as the nature of the property or circumstances shall require or admit, be transferred so that such assets may be vested in my executors and trustees for the time being and every executor and trustee nominated, constituted and appointed as herein provided may, as well before as after such transfer of the assets of my estate, act or assist in the execution of the trusts and powers of my Will as fully and effectually as if such executor and trustee had been nominated, constituted and appointed by me in the first instance.
First Step – Insert Meaningful Titles
Here is that same language, broken up into paragraphs and subparagraphs, with the addition of titles and subtitles and incidental language to that restructuring:
Appointment of Executors
2. The following provisions appoint and govern the appointment and replacement of executors and trustees to administer my estate:
(a) Panel of Three Executors Appointed – I nominate, constitute and appoint my wife, Jane Smith, my son, Tom Jones, and my lawyer, William MacDonald, of Halifax, Nova Scotia, and the survivor of them, to be the executors and trustees of my Will.
(b) Filling Vacancies – In the event of any vacancy occurring among my executors and trustees whether by death, resignation, refusal to act, incapacity or other reason whatever, the vacancy can be filled as follows:
(i) Remaining Executors Can Pick Replacement – I authorize the remaining of my executors and trustees to nominate, constitute and appoint a replacement or replacements.
(ii) Appointment Must Be In Writing – The appointment of replacement executors and trustees is to take place by instrument in writing.
(iii) Maintain Minimum of Two – As vacancies occur, it is my intention that there should at all times be more than one executor and trustee in office.
(iv) Court To Appoint if All Positions Vacant – If at any time there is no executor and trustee in office, then such person or persons as may be nominated, constituted and appointed by an order of a judge of the Supreme Court of Nova Scotia, on the application of any person interested in my estate, shall be my executor and trustee or executors and trustees as the case may be.
(c) Transfer of Assets to New Executors – Upon every nomination, constitution and appointment of an executor and trustee as herein provided, all of the assets of my estate both real and personal and wheresoever situate then being held by my executors and trustees shall, so far as the nature of the property or circumstances shall require or admit, be transferred so that such assets may be vested in my executors and trustees for the time being.
(d) Replacement Trustees Have Same Powers – Every executor and trustee nominated, constituted and appointed as herein provided may, as well before as after such transfer of the assets of my estate, act or assist in the execution of the trusts and powers of my Will as fully and effectually as if such executor and trustee had been nominated, constituted and appointed by me in the first instance.
….
Interpretation
13. The following provisions provide guidance as to how this Will is to be interpreted:
(a) Titles for Ease of Reference – Titles appearing throughout this Will are inserted for ease of reference and do not change its interpretation or operative effect.
The rule with titles is that they should tell a reader not just what the paragraph deals with but what it does. Titles themselves should be in plain language. An example of a terrible title: “Idem.” A good title: “Mechanism if All Positions Vacant.” A better title: “Court To Appoint if All Positions Vacant.” Consider the use of periods at the end of every paragraph rather than semicolons. Semicolons are going the way of quill pens. Also, a paragraph itself will be easier to read if broken into multiple sentences. As soon as that happens, it has to end with a period. Indentation is also used to communicate meaning. As topics shift to sub-topics and sub-sub-topics, and back, the level of indentation shifts as well to reflect that.
More titles are better than few. As a rule of thumb ask whether a reader looking only at the titles and not the text will come away with a good working feel for what the document says.
Cross-references are better made by title and not by alpha-numeric reference. An example of a good cross-reference: “any tie vote is to be resolved in the manner set out later in the Will in the paragraph entitled, ‘Arbitration.‘ ” A bad one: “any tie vote is to be resolved in the manner set out in paragraph 8(c).” Alpha-numeric cross-references are a common form of error in wills and codicils. A change made to add a paragraph dealing with an unrelated matter will change all alpha-numeric cross references. There is nothing intuitive about them. Tracking them is a quality control nightmare.
Some wills can expand to cover twenty or thirty pages. A document with titles can be improved with an index. No titles means no index.
Second Step – Break Long Sentences into Shorter Ones
Here is that same language with an initial effort to break it into smaller sentences without rewriting it to remove arcane language (a later step):
Appointment of Executors
2. The following provisions govern the appointment and replacement of executors and trustees to administer my estate:
(a) Panel of Three Executors Appointed – I nominate, constitute and appoint my wife, Jane Smith, my son, Tom Jones, and my lawyer, William MacDonald, of Halifax, Nova Scotia, and the survivor of them, to be the executors and trustees of my Will.
(b) Filling Vacancies – In the event of any vacancy occurring among my executors and trustees whether by death, resignation, refusal to act, incapacity or other reason whatever, the vacancy can be filled as follows:
(i) Remaining Executors Can Pick Replacement – I authorize the remaining of my executors and trustees to nominate, constitute and appoint a replacement or replacements.
(ii) Appointment Must Be In Writing – The appointment of replacement executors and trustees is to take place by instrument in writing.
(iii) Maintain Minimum of Two – As vacancies occur, it is my intention that there should at all times be more than one executor and trustee in office.
(iv) Court To Appoint if All Positions Vacant – If at any time there is no executor and trustee in office, then such person or persons as may be nominated, constituted and appointed by an order of a judge of the Supreme Court of Nova Scotia shall be my executor and trustee or executors and trustees as the case may be. The application to the court can be made by any person interested in my estate.
(c) Transfer of Assets to New Executors – Upon every nomination, constitution and appointment of an executor and trustee as herein provided, all of the assets of my estate both real and personal and wheresoever situate then being held by my executors and trustees shall, so far as the nature of the property or circumstances shall require or admit, be transferred so that such assets may be vested in my executors and trustees for the time being.
(d) Replacement Trustees Have Same Powers – Every executor appointed as herein provided may, as well before as after such transfer of the assets of my estate, act or assist in the execution of the trusts and powers of my Will as fully and effectually as if such executor had been nominated, constituted and appointed by me in the first instance.
….
Interpretation
13. The following provisions provide guidance as to how this Will is to be interpreted:
(a) Titles for Ease of Reference – Titles appearing throughout this Will are inserted for ease of reference. The titles do not change the interpretation or operative effect in any way.
Shorter sentences are easier read than longer ones. The word “and” in the middle of a sentence often provides an opportunity to break one sentence into two. This is a first cut. Later, at “Step Four – Update Arcane Language,” there is a second and better opportunity to pursue shorter sentences.
Third Step – Employ Definitions and Interpretative Aids at End of The Will
Here is that same provision with definitions, interpretative aids, and boilerplate inserted at the end of the document (the “garbage at the back” principle – see below) in order to simplify the provisions at the front of the document:
Appointment of Executors
2. The following provisions govern the appointment and replacement of executors to administer my estate:
(a) Panel of Three Executors Appointed – I appoint my wife, Jane Smith, my son, Tom Jones, and my lawyer, William MacDonald, of Halifax, Nova Scotia, and the survivor of them, to be the executors of my Will.
(b) Filling Vacancies – In the event of any vacancy occurring among my executors whether by death, resignation, refusal to act, incapacity or other reason whatever, the vacancy can be filled as follows:
(i) Remaining Executors Can Pick Replacement – I authorize the remaining of my executors to appoint replacements.
(ii) Appointment Must Be In Writing – The appointment of replacement executors is to take place by instrument in writing.
(iii) Maintain Minimum of Two – As vacancies occur, it is my intention that there should at all times be more than one executor in office.
(iv) Court To Appoint if All Positions Vacant – If at any time there is no executor in office, then such persons as may be appointed by an order of a judge of the Supreme Court of Nova Scotia shall be my executors. The application to the court can be made by any person interested in my estate.
….
Administration of My Estate
12. The following are stock provisions added to my Will to guide my executors in the administration of my estate:
(a) Transfer of Assets to New Executors – Upon every appointment of an executor as herein provided, all of the assets of my estate both real and personal and wheresoever situate then being held by my executors shall, so far as the nature of the property or circumstances shall require or admit, be transferred so that such assets may be vested in my executors for the time being.
(b) Replacement Trustees Have Same Powers – Every executor appointed as herein provided may, as well before as after such transfer of the assets of my estate, act or assist in the execution of the trusts and powers of my Will as fully and effectually as if such executor had been nominated, constituted and appointed by me in the first instance.
Interpretation
13. The following provisions provide guidance as to how this Will is to be interpreted:
(a) Titles for Ease of Reference – Titles appearing throughout this Will are inserted for ease of reference. The titles do not change the interpretation or operative effect in any way.
(b) Definitions – The following terms are given the following definitions in this my Will:
(i) Appoint – The word “appoint” shall mean nominate, constitute and appoint.
(ii) Executors – The word “executors” shall mean executors and trustees. It includes both executors who I have appointed by name and any other persons who are appointed as replacements under the paragraph appearing earlier entitled “Filling Vacancies.”
(c) Adjustments for Plural and Singular – Words used in the plural form shall also mean the same word in its singular form where context clearly requires that interpretation. The same principle operates, vice versa, and words used in the singular form shall also mean the same word in its plural form where context requires.
Material that only a lawyer will care about is moved to the end of the will. Collected there, the client will be free to identify it for what it is – boilerplate. The client may and probably will simply skim it over on a cursory glance. Left at the front and middle of the document, boilerplate clauses are a barrier the client has to climb while searching for the provisions the client actually cares about and needs to read. This principle can be referred to as “putting the garbage at the back.”
At this stage the arcane language from the 1800s has been maintained. The arcane sentence structure and sentence style is still there. A lawyer fearful of tinkering with language that has been time and court-tested might be comfortable going this far. The next steps are the steps that actually change the words and might, inadvertently, change the meaning.
Fourth Step – Update Arcane Language
Here is that same provision making an effort to rewriting the arcane language in a more accessible style:
Appointment of Executors
2. The following provisions govern the appointment and replacement of executors to administer my estate:
(a) Panel of Three Executors Appointed – I appoint my wife, Jane Smith, my son, Tom Jones, and my lawyer, William MacDonald, of Halifax, Nova Scotia to serve jointly as the executors of my estate.
(b) Filling Vacancies – One or more of my executors may be unable or unwilling to serve in that role. That might occur by virtue of death, resignation, refusal to act, incapacity, or some other reason. In that event, the vacancy shall be filled as follows:
(i) Remaining Executors Can Pick Replacement – I authorize the remaining of executors to appoint replacements.
(ii) Appointment Must Be In Writing – The appointment of a replacement executor is to be done by a written document signed by the remaining executors. That document must clearly state that they are making an appointment and who they are appointing. A verbal appointment shall not be effective.
(iii) Maintain Minimum of Two – A minimum of two (2) executors should always be in place to serve. The power to appoint replacements is to be exercised in a way to maintain that minimum. A panel of three (3) executors is preferable but not required.
(iv) Court To Appoint if All Positions Vacant – If all of the persons appointed to serve as executors are unable or unwilling to serve, there will be no executor in office to appoint replacements. In that event, replacement executors are to be appointed by applying to a judge of the Supreme Court of Nova Scotia and asking the Court. That application to Court can be made by any person who has an interest as a beneficiary of my estate.
….
Administration of My Estate
12. The following are stock provisions added to my Will to guide my executors in the administration of my estate:
(a) Transfer of Assets to New Executors – Whenever a new executor is appointed to my estate, all estate assets should, whenever possible, be transferred from the name and ownership of the departing executors into the name and ownership of the new ones. That will include all property falling into my estate, including land, regardless of whether the property is located inside or outside of Nova Scotia.
(b) Replacement Trustees Have Same Powers – Every executor has the same full powers in the administration of my estate. Replacement executors have the same full powers as any executors that I have chosen and specifically named earlier in this my Will.
Interpretation
13. The following provisions provide guidance as to how this Will is to be interpreted:
(a) Titles for Ease of Reference – Titles appearing throughout this Will are inserted to make it easier to read and work with. The titles do not change the interpretation or operative effect in any way.
(b) Definitions – The following terms are given the following definitions in this my Will:
(i) Appoint – The word “appoint” shall mean nominate, constitute and appoint.
(ii) Executors – The word “executors” shall mean executors and trustees. It includes both executors who I have appointed by name and any other persons who are appointed as replacements under the paragraph appearing earlier entitled “Filling Vacancies.”
(c) Adjustments for Plural and Singular – Words used in the plural form shall also mean the same word in its singular form where context clearly requires that interpretation. The same principle operates, vice versa, and words used in the singular form shall also mean the same word in its plural form where context requires.
That fourth step creates the most risk from the perspective of a draftsperson. The clients are apt to forgive legalese in the boilerplate provisions (the “garbage at the back”) and a lawyer may resist the urge to rewrite those provisions into shorter sentences and simpler words. Estate law is obscure and specific words might be driven by ancient legal requirements that still function under the surface. At the same time, a lawyer should be at least a little bit brave and strive to serve his or her clients better. They want accessible language. A balance has to be struck between protecting the lawyer and serving the client.
Fifth Step – Consider the Use of Explanatory Statements
Here is that same provision with statements inserted that act as preambles to various paragraphs or internal explanations:
Appointment of Executors
2. The following provisions govern the appointment and replacement of executors to administer my estate:
(a) Panel of Three Executors Appointed – I appoint my wife, Jane Smith, my son, Tom Jones, and my lawyer, William MacDonald, of Halifax, Nova Scotia to serve jointly as the executors of my estate.
(b) Filling Vacancies – While I want Jane, Tom, and William to be my executors, a replacement process is necessary. One or more of my executors may be unable or unwilling to serve in that role. That might occur by virtue of death, resignation, refusal to act, incapacity, or some other reason. In that event, the vacancy shall be filled as follows:
(i) Remaining Executors Can Pick Replacement – I authorize the remaining of executors to appoint replacements.
(ii) Appointment Must Be In Writing – The appointment of a replacement executor is to be done by a written document signed by the remaining executors. That document must clearly state that they are making an appointment and who they are appointing. A verbal appointment shall not be effective.
(iii) Maintain Minimum of Two – A minimum of two (2) executors should always be in place to serve. If one cannot serve, the other will be able to appoint replacements. The power to appoint replacements is to be exercised in a way to maintain that minimum. A panel of three (3) executors is preferable but not required. A tie vote is not possible with a panel of three.
(iv) Court To Appoint if All Positions Vacant – If all of the persons appointed to serve as executors are unable or unwilling to serve, there will be no executor in office to appoint replacements. In that event, replacement executors are to be appointed by applying to a judge of the Supreme Court of Nova Scotia and asking the Court. That application to Court can be made by any person who has an interest as a beneficiary of my estate.
….
Administration of My Estate
12. The following are stock provisions added to my Will to guide my executors in the administration of my estate:
(a) Transfer of Assets to New Executors – Estate assets are generally transferred out of the name of the deceased into the legal ownership of the persons serving as executors. Whenever a new executor is appointed to my estate, all estate assets should, whenever possible, be transferred from the name and ownership of the departing executors into the name and ownership of the new ones. That will include all property falling into my estate, including land, regardless of whether the property is located inside or outside of Nova Scotia.
(b) Replacement Trustees Have Same Powers – An earlier provision in this my Will allows for the appointment of replacement executors. Every executor has the same full powers in the administration of my estate. Replacement executors have the same full powers as any executors that I have chosen and specifically named earlier in this my Will.
Interpretation
13. The following provisions provide guidance as to how this Will is to be interpreted:
(a) Titles for Ease of Reference – Titles appearing throughout this Will are inserted to make it easier to read and work with. The titles do not change the interpretation or operative effect in any way.
(b) Definitions – The following terms are given the following definitions in this my Will:
(i) Appoint – The word “appoint” shall mean nominate, constitute and appoint.
(ii) Executors – The word “executors” shall mean executors and trustees. It includes both executors who I have appointed by name and any other persons who are appointed as replacements under the paragraph appearing earlier entitled “Filling Vacancies.”
(c) Adjustments for Plural and Singular – Words used in the plural form shall also mean the same word in its singular form where context clearly requires that interpretation. The same principle operates, vice versa, and words used in the singular form shall also mean the same word in its plural form where context requires.
Explanatory statements have been inserted into the paragraphs appearing above entitled “Replacing Executors,” “Maintain Minimum of Two,” “Replacement Trustees Have Same Powers,” and “Transfer of Assets to New Executors.” The idea of explanatory sentences is to explain why the clause is necessary and how it fits in. Knowing that as the clause is read makes it easier to understand why it is there and how it will be used.
Sixth Step – Consider Addition of Illustrations
Where drafting is complex, an illustration or hypothetical can be added into the body of the will. The intent and proper interpretation of a will or other document jumps out when illustrated. The sample wording under consideration above does not warrant the use of an illustration. Here is a provision that does:
(A) Staged Capital Distributions – Mary’s Trustees shall pay or transfer a sum of money equivalent to two and one-half (2½%) percent of the property held in trust in Mary’s Trust to Mary, as a capital distribution, at such time as Mary attains the age of twenty-five (25) years, or if Mary has already attained that age when Mary’s Trust is constituted. Mary’s Trustees shall pay or transfer an additional sum of money equivalent to five (5%) percent of the property held in trust in Mary’s Trust to Mary as an additional capital distribution, at such time as Mary attains the age of thirty (30) years, or if Mary has already attained that age when Mary’s Trust is constituted. These distributions are intended to be cumulative, and are in addition to any capital distributions pursuant to any preceding distribution. By way of illustration, if Mary were 31 years old at the time her Trust is to be constituted, she would be entitled to a cumulative capital distribution of 7½%.
Another sample:
(A) Support Education – The Legacy Trustees shall provide generous financial support to Legacy Beneficiaries who require funds to further their education. That will include education at the elementary, middle, high school and post-secondary levels. At the post-secondary level, that will include accredited universities with funding provided for bachelor’s, master’s and doctoral degrees. That will also include colleges, vocational schools or any other similar endeavour with a reasonable prospect of improving the Legacy Beneficiary’s career opportunities or quality of life. By way of example, funds might be released for a Legacy Beneficiary to attend a private school such as St. John’s-Ravenscourt or for a Legacy Beneficiary to pursue post-secondary education overseas at a university that has a higher standard of education or a particular expertise in the Legacy Beneficiary’s desired field of study. By way of further example, funds might be released for a Legacy Beneficiary interested in studying culinary arts at a recognized college or for a Legacy Beneficiary interested in fine arts who has the opportunity to study under a recognized artist. A Legacy Beneficiary may be of modest aptitude, due to disability or other factor outside of his or her control, but may still benefit from specialized training and education. If so, the Trust is to be available to them in the same way as any other Legacy Beneficiary, and allow them to improve their prospects and future success in life. The financial support given to Legacy Beneficiaries can extend to include such items as tuition, books and room and board while Legacy Beneficiaries are pursuing their education. For the guidance of the Legacy Trustees, in deciding to release funds to assist Legacy Beneficiaries pursuing their education, the quality of the education should be the guiding factor. The funds in the Trust are not intended to assist Legacy Beneficiaries who choose an educational program because of its location, not its quality, as would be the case, for example, where a Legacy Beneficiary chooses a lower-quality educational program in California or the Caribbean because of the Legacy Beneficiary’s desire to spend several years in a warm and sunny locale.
Another sample:
7.2 Valuing Exit Amounts in Cabin Trust – The exit amount due to an Exiting Family Member is to be valued as follows:
7.2.1 Determine Fair Market Value – The Cabin is to be valued as of the date the request for an exit payment is made. That valuation can be by agreement if each of the adult Family Members (including the Exiting Family Member) agree on the fair market value at the time and that agreement is unanimous. Absent a unanimous agreement among Family Members, the Cabin is to be valued by two certified land appraisers with experience in valuing property of the kind held in the Cabin Trust. The fair market value from the two appraisal reports are then to be averaged.
7.2.2. Discount Applied – The fair market value is then to be made subject to a seventy-five (75%) percent discount to fix the voluntary exit value for the various percentage interests. That rate is to be considered as the default rate. The Trustees are free, by majority vote, to increase or decrease the discount rate to a larger or smaller percentage.
7.2.3. Illustration – Thus, by way of illustration, if two appraisals show fair market values of one million ($1,000,000.00) dollars and nine hundred thousand ($900,000.00) dollars, then the averaged amount would be nine hundred and fifty thousand ($950,000.00) dollars. Assuming the Trustees do not wish to change it, the discount rate under the paragraph appearing above entitled “Discount Applied” would be the seventy-five (75%) percent rate set by default. A seventy-five (75%) percent discount would reduce the averaged fair market value amount by seven hundred and twelve thousand, five hundred ($712,500.00) dollars, and would leave an aggregated exit value of two hundred and thirty-seven thousand, five hundred ($237,500.00) dollars. An Exiting Family Member with a percentage interest of twenty (20%) percent would then be able to demand twenty (20%) percent of the two hundred and thirty-seven thousand, five hundred ($237,500.00) dollars, and would be entitled to a cash exit amount of forty seven thousand, five hundred ($47,500.00) dollars. That payment would then be made in the manner specified in the paragraph appearing later entitled “Making Payments to Exiting Family Members.”
The Outcome – Comparing the First Version to the Last
How does the original target language in the first version compare to the final version at the end of the process undertaken above? Beauty is in the eye of the beholder. The argument in favour of plain language would be that the plain language version is more accessible to the client when the client reads and signs the will.
Will documents be shorter? Not necessarily. Some arcane verbiage will be lost. Language will be added to assist understanding. Adding indentation and breaking into different paragraphs takes up more pages. None of that matters. The goal here is not to make the document longer or shorter, but clearer and easier to use. A document plump with legalese requires regular interpretation by a lawyer. Clients do not want that. The phrase “among my issue in equal shares per stirpes” means call a lawyer and pay for billable time.
There is a quality control point here. Clients want their wills to work. Many of them will proofread carefully. Three layers of proofreading are available: the lawyer proofreads; his or her paralegal proofreads, then the client proofreads. Writing in legalese takes the most motivated member of the proofreading team out of action. A client cannot proofread a clause written in Latin or arcane language from the 1800s. Most paralegals are in the same boat.
Are clients willing to pay more for documents they can read and understand? Maybe. They are certainly more likely to refer friends and family if they feel confident and comfortable with the work.
The clause rewritten above, transformed from old style to new, is not being recommended here for use in wills. It is no more than an example. It has warts. No effort has been made to remove those warts during the transformation process.
Readers interested in plain language legal drafting might be interested in joining Clarity International (www.clarity-international.net), an organization dedicated to plain language legal drafting. The annual membership fee is modest. The regular newsletter provides guidance and tips.
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*John Poyser practices in Toronto with WEL Partners (litigation only), and in Winnipeg and Calgary with Tradition Law LLP. This paper was originally presented to STEP Atlantic in April of 2017. Credit and thanks are given to Ryan Gorlick, articling student at law, for his capable assistance in the generation of this paper.
[1] Franks v. Sinclair (2006), [2007] EWHC 3365 (Ch), [2007] WTLR 439 (Eng. Chancery. Div.).
[2] Franks v. Sinclair (2006), [2007] EWHC 3365 (Ch), [2007]WTLR 439 (Eng. Chancery. Div.), in para. 37.
[3] Franks v. Sinclair (2006), [2007] EWHC 3365 (Ch), [2007]WTLR 439 (Eng. Chancery. Div.), at paras. 64 and 65. The clause 8 set out in this passage is extraordinary for the seemingly phobic fear of punctuation – the whole of clause 8 as found in the published report is devoid of commas.
[4] Franks v. Sinclair (2006), [2007] EWHC 3365 (Ch), [2007] WTLR 439 (Eng. Chancery. Div.), at para. 107.
[5] Burns Estate v. Burns [2016] EWCA Civ 37, 2016 WL 312276 (Eng. C.A.), at para 36.
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Written by: John Poyser
Posted on: May 30, 2017
Categories: Commentary, WEL Newsletter
Originally published in our May 2017 Newsletter
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By John E.S. Poyser*
Legalese can actually defeat a will. That happened in Franks v. Sinclair.[1] The will-maker was a mother and had two adult children, a son and a daughter. The son was a lawyer, and he was in tight financial straits. The will-maker had made a prior 1992 will that left her wealth not to her children but to a grandson named Jonathan. Jonathan was very close to his grandmother. She also believed that she had taken care of her children through inter vivos wealth transfers and other advantages that she had already conferred on them. The will in Jonathan’s favour had been made with her regular lawyer and after due deliberation. Two years passed. The son then prepared a new 1994 will for his mother. The effect of the new will was to disinherit Jonathan and redirected her wealth to pass to her two children in equal shares. He took the will to his mother’s residence along with two witnesses. He read the will over, line by line and word by word, while his mother and the two witnesses listened on. He then asked his mother whether she wanted to sign the will and she said she did. The will was signed and duly witnessed. The mother’s capacity was not in question. Undue influence was not alleged.
The validity of the will was challenged after the will-maker died on the grounds that she lacked knowledge and approval of its contents. One of the two witnesses to the will, being one of the son’s legal partners, a Mr. Chadwick, testified: [2]
Mr. Franks [the son] then read out the will. Although Mr. Chadwick did not have a copy to check it against, I am satisfied that Mr. Franks read the will in its entirety. Mr. Chadwick states that Mr. Franks read it very slowly in a clear and audible voice, and comments that he remembers this very clearly “because, at the time, I thought it was a bit over-the-top and unnecessary.
The dense language of the clause dealing with the residue was a real consideration taken into account: [3]
In considering the effect of reading out the will, the terms in which it is drafted are of central importance. The provisions of a will may be very straightforward, such that an elderly lay client will have no difficulty in understanding them. …. It was true of some of the provisions of the 1994 will, such as the specific legacies, the exclusion of Judith and the appointment of Jonathan and David as executors.
In my judgement, it is not however true of clause 8 which deals with the residuary estate. Clause 8 is in the following terms:
“I give devise and bequeath all the remainder of my property whatsoever and wheresoever both real and personal not hereby or otherwise disposed of by me unto my Trustees upon trust to sell call in and convert into money all such parts of the same as shall not consist of money but so that my Trustees shall have full power to postpone such sale calling in and conversion for so long as they shall in their absolute discretion think fit without being liable for loss and after payment thereout of my debts funeral and testamentary expenses to stand possessed of the same (hereinafter called “my residuary estate”) UPON TRUST for such of them my child or children as shall be living at my death and if more than one in equal shares absolutely PROVIDED THAT if any such child or children of mine shall predecease me leaving issue living at my death and who attain the age of eighteen years such issue shall take and if more than one equally the share of my residuary estate which such child or children of mine would have taken had he she or they survived me.”
I think it very unlikely that Mrs. Franks understood the effect of clause 8 just as a result of it being read out loud to her. It is expressed in the customary technical language of wills, which most lay people will find impenetrable and many may consider to be gobbledegook. There is the long preamble of the administration trusts before one reaches the principal gift, which itself refers only to “children” without any names, and is then followed by the dense language of the per stirpes substitution gift. It requires explanation. In my judgement, the reading of the will cannot be relied on as establishing Mrs. Franks’ knowledge and approval of its terms.
The complexity of the clause was such that the court clearly said that reading over was not sufficient and that an explanation was needed. There was no evidence that an explanation had been given. The court ultimately refused to allow the will to probate on the grounds of a lack of knowledge and approval[4]. The fact that a lawyer goes to the trouble of reading over a will to a client, in its entirety, may not save the will if that read-over amounts to no more than the “idle ceremony” referred to by McCombe L.J. of the English Court of Appeal in Burns Estate v. Burns. [5]
Franks v. Sinclair stands as an interesting example of a will denied probate by virtue of the barrier provided by legalese. The will-maker spoke English. The will was in English. But the English was in the impenetrable technical form that lawyers have traditionally inflicted on clients. Put another way, the client was literate, just not literate in legalese. There might be a practice point here. A solicitor who relies on a reading over with the client, without explanation, had better use plain language. The phrase “per stirpes” will mean nothing to a lay person. The lawyer in Franks v. Sinclair did not send the draft will to the client in advance of the execution. That would have been a small improvement – giving the client a more realistic opportunity to complain about the arcane language and ask questions.
The Challenge of Plain English Drafting
The following takes a clause from a will, drafted in the style of the 1800s, and then converts it in a series of steps intended to make it easier to read and understand. Some additional examples of plain language drafting are added later.
Target Language to Be Rewritten
Here is a traditional clause as it might appear in a will:
2. I nominate, constitute and appoint my wife, Jane Smith, my son, Tom Jones, and my lawyer, William MacDonald, of Halifax, Nova Scotia, and the survivor of them, to be the executors and trustees of my Will.
In the event of any vacancy occurring among my executors and trustees whether by death, resignation, refusal to act, incapacity or other reason whatever, I authorize the remaining of my executors and trustees to nominate, constitute and appoint a replacement or replacements by instrument in writing, it being my intention that there should at all times be more than one executor and trustee in office provided that if at any time there is no executor and trustee in office, then such person or persons as may be nominated, constituted and appointed by an order of a judge of the Supreme Court of Nova Scotia, on the application of any person interested in my estate, shall be my executor and trustee or executors and trustees as the case may be.
Upon every nomination, constitution and appointment of an executor and trustee as herein provided, all of the assets of my estate both real and personal and wheresoever situate then being held by my executors and trustees shall, so far as the nature of the property or circumstances shall require or admit, be transferred so that such assets may be vested in my executors and trustees for the time being and every executor and trustee nominated, constituted and appointed as herein provided may, as well before as after such transfer of the assets of my estate, act or assist in the execution of the trusts and powers of my Will as fully and effectually as if such executor and trustee had been nominated, constituted and appointed by me in the first instance.
First Step – Insert Meaningful Titles
Here is that same language, broken up into paragraphs and subparagraphs, with the addition of titles and subtitles and incidental language to that restructuring:
Appointment of Executors
2. The following provisions appoint and govern the appointment and replacement of executors and trustees to administer my estate:
(a) Panel of Three Executors Appointed – I nominate, constitute and appoint my wife, Jane Smith, my son, Tom Jones, and my lawyer, William MacDonald, of Halifax, Nova Scotia, and the survivor of them, to be the executors and trustees of my Will.
(b) Filling Vacancies – In the event of any vacancy occurring among my executors and trustees whether by death, resignation, refusal to act, incapacity or other reason whatever, the vacancy can be filled as follows:
(i) Remaining Executors Can Pick Replacement – I authorize the remaining of my executors and trustees to nominate, constitute and appoint a replacement or replacements.
(ii) Appointment Must Be In Writing – The appointment of replacement executors and trustees is to take place by instrument in writing.
(iii) Maintain Minimum of Two – As vacancies occur, it is my intention that there should at all times be more than one executor and trustee in office.
(iv) Court To Appoint if All Positions Vacant – If at any time there is no executor and trustee in office, then such person or persons as may be nominated, constituted and appointed by an order of a judge of the Supreme Court of Nova Scotia, on the application of any person interested in my estate, shall be my executor and trustee or executors and trustees as the case may be.
(c) Transfer of Assets to New Executors – Upon every nomination, constitution and appointment of an executor and trustee as herein provided, all of the assets of my estate both real and personal and wheresoever situate then being held by my executors and trustees shall, so far as the nature of the property or circumstances shall require or admit, be transferred so that such assets may be vested in my executors and trustees for the time being.
(d) Replacement Trustees Have Same Powers – Every executor and trustee nominated, constituted and appointed as herein provided may, as well before as after such transfer of the assets of my estate, act or assist in the execution of the trusts and powers of my Will as fully and effectually as if such executor and trustee had been nominated, constituted and appointed by me in the first instance.
….
Interpretation
13. The following provisions provide guidance as to how this Will is to be interpreted:
(a) Titles for Ease of Reference – Titles appearing throughout this Will are inserted for ease of reference and do not change its interpretation or operative effect.
The rule with titles is that they should tell a reader not just what the paragraph deals with but what it does. Titles themselves should be in plain language. An example of a terrible title: “Idem.” A good title: “Mechanism if All Positions Vacant.” A better title: “Court To Appoint if All Positions Vacant.” Consider the use of periods at the end of every paragraph rather than semicolons. Semicolons are going the way of quill pens. Also, a paragraph itself will be easier to read if broken into multiple sentences. As soon as that happens, it has to end with a period. Indentation is also used to communicate meaning. As topics shift to sub-topics and sub-sub-topics, and back, the level of indentation shifts as well to reflect that.
More titles are better than few. As a rule of thumb ask whether a reader looking only at the titles and not the text will come away with a good working feel for what the document says.
Cross-references are better made by title and not by alpha-numeric reference. An example of a good cross-reference: “any tie vote is to be resolved in the manner set out later in the Will in the paragraph entitled, ‘Arbitration.‘ ” A bad one: “any tie vote is to be resolved in the manner set out in paragraph 8(c).” Alpha-numeric cross-references are a common form of error in wills and codicils. A change made to add a paragraph dealing with an unrelated matter will change all alpha-numeric cross references. There is nothing intuitive about them. Tracking them is a quality control nightmare.
Some wills can expand to cover twenty or thirty pages. A document with titles can be improved with an index. No titles means no index.
Second Step – Break Long Sentences into Shorter Ones
Here is that same language with an initial effort to break it into smaller sentences without rewriting it to remove arcane language (a later step):
Appointment of Executors
2. The following provisions govern the appointment and replacement of executors and trustees to administer my estate:
(a) Panel of Three Executors Appointed – I nominate, constitute and appoint my wife, Jane Smith, my son, Tom Jones, and my lawyer, William MacDonald, of Halifax, Nova Scotia, and the survivor of them, to be the executors and trustees of my Will.
(b) Filling Vacancies – In the event of any vacancy occurring among my executors and trustees whether by death, resignation, refusal to act, incapacity or other reason whatever, the vacancy can be filled as follows:
(i) Remaining Executors Can Pick Replacement – I authorize the remaining of my executors and trustees to nominate, constitute and appoint a replacement or replacements.
(ii) Appointment Must Be In Writing – The appointment of replacement executors and trustees is to take place by instrument in writing.
(iii) Maintain Minimum of Two – As vacancies occur, it is my intention that there should at all times be more than one executor and trustee in office.
(iv) Court To Appoint if All Positions Vacant – If at any time there is no executor and trustee in office, then such person or persons as may be nominated, constituted and appointed by an order of a judge of the Supreme Court of Nova Scotia shall be my executor and trustee or executors and trustees as the case may be. The application to the court can be made by any person interested in my estate.
(c) Transfer of Assets to New Executors – Upon every nomination, constitution and appointment of an executor and trustee as herein provided, all of the assets of my estate both real and personal and wheresoever situate then being held by my executors and trustees shall, so far as the nature of the property or circumstances shall require or admit, be transferred so that such assets may be vested in my executors and trustees for the time being.
(d) Replacement Trustees Have Same Powers – Every executor appointed as herein provided may, as well before as after such transfer of the assets of my estate, act or assist in the execution of the trusts and powers of my Will as fully and effectually as if such executor had been nominated, constituted and appointed by me in the first instance.
….
Interpretation
13. The following provisions provide guidance as to how this Will is to be interpreted:
(a) Titles for Ease of Reference – Titles appearing throughout this Will are inserted for ease of reference. The titles do not change the interpretation or operative effect in any way.
Shorter sentences are easier read than longer ones. The word “and” in the middle of a sentence often provides an opportunity to break one sentence into two. This is a first cut. Later, at “Step Four – Update Arcane Language,” there is a second and better opportunity to pursue shorter sentences.
Third Step – Employ Definitions and Interpretative Aids at End of The Will
Here is that same provision with definitions, interpretative aids, and boilerplate inserted at the end of the document (the “garbage at the back” principle – see below) in order to simplify the provisions at the front of the document:
Appointment of Executors
2. The following provisions govern the appointment and replacement of executors to administer my estate:
(a) Panel of Three Executors Appointed – I appoint my wife, Jane Smith, my son, Tom Jones, and my lawyer, William MacDonald, of Halifax, Nova Scotia, and the survivor of them, to be the executors of my Will.
(b) Filling Vacancies – In the event of any vacancy occurring among my executors whether by death, resignation, refusal to act, incapacity or other reason whatever, the vacancy can be filled as follows:
(i) Remaining Executors Can Pick Replacement – I authorize the remaining of my executors to appoint replacements.
(ii) Appointment Must Be In Writing – The appointment of replacement executors is to take place by instrument in writing.
(iii) Maintain Minimum of Two – As vacancies occur, it is my intention that there should at all times be more than one executor in office.
(iv) Court To Appoint if All Positions Vacant – If at any time there is no executor in office, then such persons as may be appointed by an order of a judge of the Supreme Court of Nova Scotia shall be my executors. The application to the court can be made by any person interested in my estate.
….
Administration of My Estate
12. The following are stock provisions added to my Will to guide my executors in the administration of my estate:
(a) Transfer of Assets to New Executors – Upon every appointment of an executor as herein provided, all of the assets of my estate both real and personal and wheresoever situate then being held by my executors shall, so far as the nature of the property or circumstances shall require or admit, be transferred so that such assets may be vested in my executors for the time being.
(b) Replacement Trustees Have Same Powers – Every executor appointed as herein provided may, as well before as after such transfer of the assets of my estate, act or assist in the execution of the trusts and powers of my Will as fully and effectually as if such executor had been nominated, constituted and appointed by me in the first instance.
Interpretation
13. The following provisions provide guidance as to how this Will is to be interpreted:
(a) Titles for Ease of Reference – Titles appearing throughout this Will are inserted for ease of reference. The titles do not change the interpretation or operative effect in any way.
(b) Definitions – The following terms are given the following definitions in this my Will:
(i) Appoint – The word “appoint” shall mean nominate, constitute and appoint.
(ii) Executors – The word “executors” shall mean executors and trustees. It includes both executors who I have appointed by name and any other persons who are appointed as replacements under the paragraph appearing earlier entitled “Filling Vacancies.”
(c) Adjustments for Plural and Singular – Words used in the plural form shall also mean the same word in its singular form where context clearly requires that interpretation. The same principle operates, vice versa, and words used in the singular form shall also mean the same word in its plural form where context requires.
Material that only a lawyer will care about is moved to the end of the will. Collected there, the client will be free to identify it for what it is – boilerplate. The client may and probably will simply skim it over on a cursory glance. Left at the front and middle of the document, boilerplate clauses are a barrier the client has to climb while searching for the provisions the client actually cares about and needs to read. This principle can be referred to as “putting the garbage at the back.”
At this stage the arcane language from the 1800s has been maintained. The arcane sentence structure and sentence style is still there. A lawyer fearful of tinkering with language that has been time and court-tested might be comfortable going this far. The next steps are the steps that actually change the words and might, inadvertently, change the meaning.
Fourth Step – Update Arcane Language
Here is that same provision making an effort to rewriting the arcane language in a more accessible style:
Appointment of Executors
2. The following provisions govern the appointment and replacement of executors to administer my estate:
(a) Panel of Three Executors Appointed – I appoint my wife, Jane Smith, my son, Tom Jones, and my lawyer, William MacDonald, of Halifax, Nova Scotia to serve jointly as the executors of my estate.
(b) Filling Vacancies – One or more of my executors may be unable or unwilling to serve in that role. That might occur by virtue of death, resignation, refusal to act, incapacity, or some other reason. In that event, the vacancy shall be filled as follows:
(i) Remaining Executors Can Pick Replacement – I authorize the remaining of executors to appoint replacements.
(ii) Appointment Must Be In Writing – The appointment of a replacement executor is to be done by a written document signed by the remaining executors. That document must clearly state that they are making an appointment and who they are appointing. A verbal appointment shall not be effective.
(iii) Maintain Minimum of Two – A minimum of two (2) executors should always be in place to serve. The power to appoint replacements is to be exercised in a way to maintain that minimum. A panel of three (3) executors is preferable but not required.
(iv) Court To Appoint if All Positions Vacant – If all of the persons appointed to serve as executors are unable or unwilling to serve, there will be no executor in office to appoint replacements. In that event, replacement executors are to be appointed by applying to a judge of the Supreme Court of Nova Scotia and asking the Court. That application to Court can be made by any person who has an interest as a beneficiary of my estate.
….
Administration of My Estate
12. The following are stock provisions added to my Will to guide my executors in the administration of my estate:
(a) Transfer of Assets to New Executors – Whenever a new executor is appointed to my estate, all estate assets should, whenever possible, be transferred from the name and ownership of the departing executors into the name and ownership of the new ones. That will include all property falling into my estate, including land, regardless of whether the property is located inside or outside of Nova Scotia.
(b) Replacement Trustees Have Same Powers – Every executor has the same full powers in the administration of my estate. Replacement executors have the same full powers as any executors that I have chosen and specifically named earlier in this my Will.
Interpretation
13. The following provisions provide guidance as to how this Will is to be interpreted:
(a) Titles for Ease of Reference – Titles appearing throughout this Will are inserted to make it easier to read and work with. The titles do not change the interpretation or operative effect in any way.
(b) Definitions – The following terms are given the following definitions in this my Will:
(i) Appoint – The word “appoint” shall mean nominate, constitute and appoint.
(ii) Executors – The word “executors” shall mean executors and trustees. It includes both executors who I have appointed by name and any other persons who are appointed as replacements under the paragraph appearing earlier entitled “Filling Vacancies.”
(c) Adjustments for Plural and Singular – Words used in the plural form shall also mean the same word in its singular form where context clearly requires that interpretation. The same principle operates, vice versa, and words used in the singular form shall also mean the same word in its plural form where context requires.
That fourth step creates the most risk from the perspective of a draftsperson. The clients are apt to forgive legalese in the boilerplate provisions (the “garbage at the back”) and a lawyer may resist the urge to rewrite those provisions into shorter sentences and simpler words. Estate law is obscure and specific words might be driven by ancient legal requirements that still function under the surface. At the same time, a lawyer should be at least a little bit brave and strive to serve his or her clients better. They want accessible language. A balance has to be struck between protecting the lawyer and serving the client.
Fifth Step – Consider the Use of Explanatory Statements
Here is that same provision with statements inserted that act as preambles to various paragraphs or internal explanations:
Appointment of Executors
2. The following provisions govern the appointment and replacement of executors to administer my estate:
(a) Panel of Three Executors Appointed – I appoint my wife, Jane Smith, my son, Tom Jones, and my lawyer, William MacDonald, of Halifax, Nova Scotia to serve jointly as the executors of my estate.
(b) Filling Vacancies – While I want Jane, Tom, and William to be my executors, a replacement process is necessary. One or more of my executors may be unable or unwilling to serve in that role. That might occur by virtue of death, resignation, refusal to act, incapacity, or some other reason. In that event, the vacancy shall be filled as follows:
(i) Remaining Executors Can Pick Replacement – I authorize the remaining of executors to appoint replacements.
(ii) Appointment Must Be In Writing – The appointment of a replacement executor is to be done by a written document signed by the remaining executors. That document must clearly state that they are making an appointment and who they are appointing. A verbal appointment shall not be effective.
(iii) Maintain Minimum of Two – A minimum of two (2) executors should always be in place to serve. If one cannot serve, the other will be able to appoint replacements. The power to appoint replacements is to be exercised in a way to maintain that minimum. A panel of three (3) executors is preferable but not required. A tie vote is not possible with a panel of three.
(iv) Court To Appoint if All Positions Vacant – If all of the persons appointed to serve as executors are unable or unwilling to serve, there will be no executor in office to appoint replacements. In that event, replacement executors are to be appointed by applying to a judge of the Supreme Court of Nova Scotia and asking the Court. That application to Court can be made by any person who has an interest as a beneficiary of my estate.
….
Administration of My Estate
12. The following are stock provisions added to my Will to guide my executors in the administration of my estate:
(a) Transfer of Assets to New Executors – Estate assets are generally transferred out of the name of the deceased into the legal ownership of the persons serving as executors. Whenever a new executor is appointed to my estate, all estate assets should, whenever possible, be transferred from the name and ownership of the departing executors into the name and ownership of the new ones. That will include all property falling into my estate, including land, regardless of whether the property is located inside or outside of Nova Scotia.
(b) Replacement Trustees Have Same Powers – An earlier provision in this my Will allows for the appointment of replacement executors. Every executor has the same full powers in the administration of my estate. Replacement executors have the same full powers as any executors that I have chosen and specifically named earlier in this my Will.
Interpretation
13. The following provisions provide guidance as to how this Will is to be interpreted:
(a) Titles for Ease of Reference – Titles appearing throughout this Will are inserted to make it easier to read and work with. The titles do not change the interpretation or operative effect in any way.
(b) Definitions – The following terms are given the following definitions in this my Will:
(i) Appoint – The word “appoint” shall mean nominate, constitute and appoint.
(ii) Executors – The word “executors” shall mean executors and trustees. It includes both executors who I have appointed by name and any other persons who are appointed as replacements under the paragraph appearing earlier entitled “Filling Vacancies.”
(c) Adjustments for Plural and Singular – Words used in the plural form shall also mean the same word in its singular form where context clearly requires that interpretation. The same principle operates, vice versa, and words used in the singular form shall also mean the same word in its plural form where context requires.
Explanatory statements have been inserted into the paragraphs appearing above entitled “Replacing Executors,” “Maintain Minimum of Two,” “Replacement Trustees Have Same Powers,” and “Transfer of Assets to New Executors.” The idea of explanatory sentences is to explain why the clause is necessary and how it fits in. Knowing that as the clause is read makes it easier to understand why it is there and how it will be used.
Sixth Step – Consider Addition of Illustrations
Where drafting is complex, an illustration or hypothetical can be added into the body of the will. The intent and proper interpretation of a will or other document jumps out when illustrated. The sample wording under consideration above does not warrant the use of an illustration. Here is a provision that does:
(A) Staged Capital Distributions – Mary’s Trustees shall pay or transfer a sum of money equivalent to two and one-half (2½%) percent of the property held in trust in Mary’s Trust to Mary, as a capital distribution, at such time as Mary attains the age of twenty-five (25) years, or if Mary has already attained that age when Mary’s Trust is constituted. Mary’s Trustees shall pay or transfer an additional sum of money equivalent to five (5%) percent of the property held in trust in Mary’s Trust to Mary as an additional capital distribution, at such time as Mary attains the age of thirty (30) years, or if Mary has already attained that age when Mary’s Trust is constituted. These distributions are intended to be cumulative, and are in addition to any capital distributions pursuant to any preceding distribution. By way of illustration, if Mary were 31 years old at the time her Trust is to be constituted, she would be entitled to a cumulative capital distribution of 7½%.
Another sample:
(A) Support Education – The Legacy Trustees shall provide generous financial support to Legacy Beneficiaries who require funds to further their education. That will include education at the elementary, middle, high school and post-secondary levels. At the post-secondary level, that will include accredited universities with funding provided for bachelor’s, master’s and doctoral degrees. That will also include colleges, vocational schools or any other similar endeavour with a reasonable prospect of improving the Legacy Beneficiary’s career opportunities or quality of life. By way of example, funds might be released for a Legacy Beneficiary to attend a private school such as St. John’s-Ravenscourt or for a Legacy Beneficiary to pursue post-secondary education overseas at a university that has a higher standard of education or a particular expertise in the Legacy Beneficiary’s desired field of study. By way of further example, funds might be released for a Legacy Beneficiary interested in studying culinary arts at a recognized college or for a Legacy Beneficiary interested in fine arts who has the opportunity to study under a recognized artist. A Legacy Beneficiary may be of modest aptitude, due to disability or other factor outside of his or her control, but may still benefit from specialized training and education. If so, the Trust is to be available to them in the same way as any other Legacy Beneficiary, and allow them to improve their prospects and future success in life. The financial support given to Legacy Beneficiaries can extend to include such items as tuition, books and room and board while Legacy Beneficiaries are pursuing their education. For the guidance of the Legacy Trustees, in deciding to release funds to assist Legacy Beneficiaries pursuing their education, the quality of the education should be the guiding factor. The funds in the Trust are not intended to assist Legacy Beneficiaries who choose an educational program because of its location, not its quality, as would be the case, for example, where a Legacy Beneficiary chooses a lower-quality educational program in California or the Caribbean because of the Legacy Beneficiary’s desire to spend several years in a warm and sunny locale.
Another sample:
7.2 Valuing Exit Amounts in Cabin Trust – The exit amount due to an Exiting Family Member is to be valued as follows:
7.2.1 Determine Fair Market Value – The Cabin is to be valued as of the date the request for an exit payment is made. That valuation can be by agreement if each of the adult Family Members (including the Exiting Family Member) agree on the fair market value at the time and that agreement is unanimous. Absent a unanimous agreement among Family Members, the Cabin is to be valued by two certified land appraisers with experience in valuing property of the kind held in the Cabin Trust. The fair market value from the two appraisal reports are then to be averaged.
7.2.2. Discount Applied – The fair market value is then to be made subject to a seventy-five (75%) percent discount to fix the voluntary exit value for the various percentage interests. That rate is to be considered as the default rate. The Trustees are free, by majority vote, to increase or decrease the discount rate to a larger or smaller percentage.
7.2.3. Illustration – Thus, by way of illustration, if two appraisals show fair market values of one million ($1,000,000.00) dollars and nine hundred thousand ($900,000.00) dollars, then the averaged amount would be nine hundred and fifty thousand ($950,000.00) dollars. Assuming the Trustees do not wish to change it, the discount rate under the paragraph appearing above entitled “Discount Applied” would be the seventy-five (75%) percent rate set by default. A seventy-five (75%) percent discount would reduce the averaged fair market value amount by seven hundred and twelve thousand, five hundred ($712,500.00) dollars, and would leave an aggregated exit value of two hundred and thirty-seven thousand, five hundred ($237,500.00) dollars. An Exiting Family Member with a percentage interest of twenty (20%) percent would then be able to demand twenty (20%) percent of the two hundred and thirty-seven thousand, five hundred ($237,500.00) dollars, and would be entitled to a cash exit amount of forty seven thousand, five hundred ($47,500.00) dollars. That payment would then be made in the manner specified in the paragraph appearing later entitled “Making Payments to Exiting Family Members.”
The Outcome – Comparing the First Version to the Last
How does the original target language in the first version compare to the final version at the end of the process undertaken above? Beauty is in the eye of the beholder. The argument in favour of plain language would be that the plain language version is more accessible to the client when the client reads and signs the will.
Will documents be shorter? Not necessarily. Some arcane verbiage will be lost. Language will be added to assist understanding. Adding indentation and breaking into different paragraphs takes up more pages. None of that matters. The goal here is not to make the document longer or shorter, but clearer and easier to use. A document plump with legalese requires regular interpretation by a lawyer. Clients do not want that. The phrase “among my issue in equal shares per stirpes” means call a lawyer and pay for billable time.
There is a quality control point here. Clients want their wills to work. Many of them will proofread carefully. Three layers of proofreading are available: the lawyer proofreads; his or her paralegal proofreads, then the client proofreads. Writing in legalese takes the most motivated member of the proofreading team out of action. A client cannot proofread a clause written in Latin or arcane language from the 1800s. Most paralegals are in the same boat.
Are clients willing to pay more for documents they can read and understand? Maybe. They are certainly more likely to refer friends and family if they feel confident and comfortable with the work.
The clause rewritten above, transformed from old style to new, is not being recommended here for use in wills. It is no more than an example. It has warts. No effort has been made to remove those warts during the transformation process.
Readers interested in plain language legal drafting might be interested in joining Clarity International (www.clarity-international.net), an organization dedicated to plain language legal drafting. The annual membership fee is modest. The regular newsletter provides guidance and tips.
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*John Poyser practices in Toronto with WEL Partners (litigation only), and in Winnipeg and Calgary with Tradition Law LLP. This paper was originally presented to STEP Atlantic in April of 2017. Credit and thanks are given to Ryan Gorlick, articling student at law, for his capable assistance in the generation of this paper.
[1] Franks v. Sinclair (2006), [2007] EWHC 3365 (Ch), [2007] WTLR 439 (Eng. Chancery. Div.).
[2] Franks v. Sinclair (2006), [2007] EWHC 3365 (Ch), [2007]WTLR 439 (Eng. Chancery. Div.), in para. 37.
[3] Franks v. Sinclair (2006), [2007] EWHC 3365 (Ch), [2007]WTLR 439 (Eng. Chancery. Div.), at paras. 64 and 65. The clause 8 set out in this passage is extraordinary for the seemingly phobic fear of punctuation – the whole of clause 8 as found in the published report is devoid of commas.
[4] Franks v. Sinclair (2006), [2007] EWHC 3365 (Ch), [2007] WTLR 439 (Eng. Chancery. Div.), at para. 107.
[5] Burns Estate v. Burns [2016] EWCA Civ 37, 2016 WL 312276 (Eng. C.A.), at para 36.
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