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Plain Language Drafting –Does it Really Matter?

CBA-NS WILLS ANDESTATES CONFERENCEOCTOBER 28, 2011

Copyright © 2011 Stewart McKelvey. All rights reserved. Not to be copied or used in whole or in part without the express written consent of Stewart McKelvey

BY RICHARD NIEDERMAYER

The Well – Drafted Will Should …

1. Express the testator’s wishes in unambiguous language.

2. Cover all reasonably foreseeable contingencies.

Copyright © 2011 Stewart McKelvey

3. Be technically and substantively correct at law.

4. Minimize taxes to the extent possible.

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Plain Language Principles

CLARITY• Conciseness.

• Lean language.

• Active voice.


• Active voice.

• Regular and reasonable language.

• Image – evoking, concrete and specific.

• Tight organization.

• You and your audience.

(From the B.C. Securities Commission Plain Language Style Guide)

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Readability Tests

• Various readability tests have been applied to precedent wills:

• Flesch index.

• Flesch – Kincaid formula.

• Gunning’s fog index.


• Gunning’s fog index.

• Tests suggested the sample wills rated as difficult to very difficult toread and comprehend and as requiring 19-21 years of education (7to 9 years of university)!

• How would your wills rate?

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Why Plain Language Wills?

1. Efficiency

• Plain language saves time for both writer and reader – readingonce instead of three or four times.

• Applies to not just the client but everyone else who reads the


• Applies to not just the client but everyone else who reads thewill (executors, beneficiaries, probate court, financialinstitutions, other lawyers, etc.).

2. Improved understanding

• Presumption of “knowledge and approval of contents” whensigning wills, but do clients really understand?

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Why Plain Language Wills? (continued)

• Plain language helps make clients understand what they aresigning.

• Increasing understanding makes will drafting accessible to abroader range of the population.


broader range of the population.

3. A professional duty?

• Do we, as lawyers, have a professional duty to use plainlanguage and make our documents more understandable?

• “Lawyers are the highest paid writers and produce the lowestquality writing” – David C. Elliott.

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Keys to Improvement

• Losing unnecessary/archaic language.

• Increasing organization of paragraphs.

• Using headings.

• Shorter sentences.


• Shorter sentences.

• Write with the reader in mind.

• Writing is communication – what are you trying to tell the reader?

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Plain Language – The How To’s

1. Organization

• Arrange provisions logically.

• Group related issues together.

• Follow the flow:


• Follow the flow:

• Who is making this will?

• Who is my family?

• Who is going to carry out the terms of this will?

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Plain Language – The How To’s(continued)

• What am I leaving to what person and in what order?

• What powers am I giving to carry out the terms of the will?

• Miscellaneous things (“one of these things is not like theother”).


other”).

2. Headings and Numbering/Lettering

• They have helped this Power Point slide show and can helpwills too!

• Must be informative/descriptive.

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Plain Language – The How To’s(continued)3. Short Sentences

• Easier to understand than long ones.

• Reader retains information in short sentences better than longones.


ones.

• Reader comprehends shorter sentences more quickly thanlonger ones.

• If short sentences don’t work, make an indented list.

• Semi-colons can be problematic.

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Plain Language – The How To’s(continued)4. Paragraphs

• No excuse for long, un-paragraphed text.

• Breaking up the text (even by paragraphs within anumbered/lettered section) helps the look of the will and makes


numbered/lettered section) helps the look of the will and makesit less daunting.

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Plain Language – The How To’s(continued)5. Wording

• Folks, we no longer get paid by the word!

• Why use three words when one will do.

• For example:


• For example:

In the event that → if

at that point in time → then

subsequent to → after

• Lose archaic words like “hereinbefore”, “hereinafter”,“hereunder”, “aforesaid”, “aforementioned”, etc.

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Plain Language – The How To’s(continued)

6. Tone

• Wills don’t have to be impersonal.

• Most important readers of the will are the family and friends


• Most important readers of the will are the family and friendswho are usually the executors and beneficiaries.

• Use proper names where appropriate instead of defined termslike “spouse” or “child”.

• BUT plain language is not always shorter than traditional legalterms.

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Plain Language – The How To’s(continued)Traditional• Divide the rest of my

estate among mychildren in equalshares per stirpes.

Plain Language• Divide the rest of my estate equally

among those of my children who surviveme. But if a child of mine does notsurvive me, and that deceased child has


shares per stirpes. survive me, and that deceased child hasany children then alive, then thosechildren are to receive equally the sharethat my deceased child would havereceived if then alive. [Can continue tograndchildren and remoter generationsin the same way.]

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Some Examples

Traditional• I appoint my spouse, Jane Doe

(hereinafter referred to as “mySpouse”), to be the sole Executrix andTrustee of this my Will, but if myspouse does not survive me, or is

Plain Language• I appoint my wife, Jane, as my executor

and trustee. If she is unable or unwillingto act or to continue to act, I appoint myson, Robert, as my executor and trustee.If he is unable or unwilling to act or to


spouse does not survive me, or isunable or unwilling to act or to continueto act, then I appoint my son, RobertDoe, to be the Executor and Trustee ofthis my Will, but if my said son does notsurvive me, or is unable or unwilling toact or to continue to act as Executorand Trustee, then I appoint mydaughter, Jennifer Doe, as Executrixand Trustee in his place and stead.

If he is unable or unwilling to act or tocontinue to act, I appoint my daughter,Jennifer, as my executor and trustee.[Assumes a previous family clausewhere full names of Jane, Robert andJennifer and their places of residencehave been noted.]

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Some ExamplesTraditional• I declare that the expression “Trustees”

wherever used in this my Will and in any codicilthereto shall mean, where the context permits,the Executrix, Executor and Trustee of this myWill for the time being acting as such, whetheroriginal, additional or substituted. I direct thatthroughout my Will wherever the plural is used itshall be construed as meaning the singular or

Plain Language• In this will, the term “trustees” means

my executor and trustee or executorsand trustees from time to time. Anyreference to my trustees in the pluralform includes the singular form andwords importing any gender shallinclude the other genders.


shall be construed as meaning the singular orvice versa and the masculine shall be construedas meaning the feminine or a body corporate asthe sex or context requires.

• Why a declaration when a simple definitionworks?

• When would the context not permit? If theplural shall be construed as the singularyou are never saying what you reallymean!

• And if you use the feminine gender it doesnot include either the masculine or theneuter genders!

include the other genders.

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Some Examples

Traditional

• I give, devise andbequeath all my property,including any propertyover which I may have a

Plain Language

• I give all my property tomy trustees on thefollowing trusts to…


over which I may have ageneral power ofappointment, to myTrustees upon thefollowing trusts and Idirect my Trustees to…

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A Cautionary Tale

• Testator’s will provided as follows:

“I GIVE, DEVISE AND BEQUEATH to my Trustees and Executors allthe shares of Stock of the Royal Bank of Canada, and of stock of the


the shares of Stock of the Royal Bank of Canada, and of stock of theCanadian Bank of Commerce registered on the Shareholdersregisters of said Banks in the name of [testator] IN TRUST to bedivided equally between such of my nephews and nieces (sons anddaughters of my brother [brother] and my sister [sister]) who may beliving at the time of my death. This disposition of these share is inaccordance with a written request of my father contained in a letterdirected to me before his death.”

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A Cautionary Tale (cont’d.)

• Testator then goes on to make other specific bequests and todistribute the residue of the estate into thirty parts.

• At the time of his death, testator had the following shares:

• 407 shares of Royal Bank registered as “[testator], in trust”


• 407 shares of Royal Bank registered as “[testator], in trust”

• 840 shares of Canadian Bank of Commerce registered simply as“[testator]”

• 180 shares of Royal Bank registered simply as “[testator]”

• Question arose as to whether gift to nieces and nephews includedonly the shares of Royal Bank registered “in trust” or whether itincluded all bank shares

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• If all bank shares were part of the specific gift there would be adeficit and nothing for the numerous residual beneficiaries, most ofwhom were charities.

• Interpretation motion went before Smiley, J, of the Nova Scotia


• Interpretation motion went before Smiley, J, of the Nova ScotiaSupreme Court in late 1945 – ruled in favour of all shares being partof the specific gift

• Residual beneficiaries appealed to the Nova Scotia Supreme Courten banc

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• Heard by four members and on January 8, 1946 judgment affirmedon equal division!

• Residual beneficiaries further appealed to the Supreme Court ofCanada and Rand, J. issued an unanimous judgment on June 11,


Canada and Rand, J. issued an unanimous judgment on June 11,1946 in favour of the residual beneficiaries

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• The punch line – the will was drafted by my grandfather with himselfand his first cousin as executors for his uncle!

• See Cummings v. Cragg and Donahoe and Cragg, [1946] 3 DLR721 (SCC) reversing Donahoe et al v. Power et al, [1946] 1 DLR 718


721 (SCC) reversing Donahoe et al v. Power et al, [1946] 1 DLR 718(NSSC en banc)

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Conclusion

• Short, simple words and sentences are not a substitute for gooddrafting.

• “All for mother” might be the simplest will written, but the writeractually meant his wife who he referred to as “mother”! (Thorn v.


actually meant his wife who he referred to as “mother”! (Thorn v.Dickens, (1906 WN 54).

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Bibliography

1. Writing Wills in Plain Language by David C. Elliott, June 1990(Canadian Bar Association (Alberta Branch)).

2. Comparisons in Legal Drafting by Robert C. Dick, Q.C., 1978(4 Estates and Trusts Quarterly 195).


(4 Estates and Trusts Quarterly 195).

3. BC Securities Commission Plain Language Style Guide(Updated March 2008).

4. Against Plain English: The Case for a Functional Approach toLegal Document Preparation by David Crump, 2002 (33 RutgersLaw Journal 713).

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Contact Information

Richard NiedermayerStewart McKelvey

1959 Upper Water Street, Suite 900PO Box 997


PO Box 997Purdy’s Wharf Tower OneHalifax, NS B3J 2X2Telephone: (902) 420-3339Fax: (902) 420-1417email: [email protected]: www.stewartmckelvey.com

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