Plain Language Drafting –
Does it Really Matter?
CBA-NS WILLS AND
ESTATES CONFERENCE
OCTOBER 28, 2011
BY RICHARD NIEDERMAYER
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
The Well – Drafted Will Should …
1. Express the testator’s wishes in unambiguous language.
2. Cover all reasonably foreseeable contingencies.
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.
• 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.
• Tests suggested the sample wills rated as difficult to very difficult to
read and comprehend and as requiring 19-21 years of education (7
to 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 – reading
once instead of three or four times.
• Applies to not just the client but everyone else who reads the
will (executors, beneficiaries, probate court, financial
institutions, other lawyers, etc.).
2. Improved understanding
• Presumption of “knowledge and approval of contents” when
signing wills, but do clients really understand?
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Why Plain Language Wills? (continued)
• Plain language helps make clients understand what they are
signing.
• Increasing understanding makes will drafting accessible to a
broader range of the population.
3. A professional duty?
• Do we, as lawyers, have a professional duty to use plain
language and make our documents more understandable?
• “Lawyers are the highest paid writers and produce the lowest
quality writing” – David C. Elliott.
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Keys to Improvement
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Losing unnecessary/archaic language.
Increasing organization of paragraphs.
Using headings.
Shorter sentences.
Write with the reader in mind.
Writing is communication – what are you trying to tell the reader?
Copyright © 2011 Stewart McKelvey
Plain Language – The How To’s
1. Organization
• Arrange provisions logically.
• Group related issues together.
• 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)
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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 the
other”).
2. Headings and Numbering/Lettering
• They have helped this Power Point slide show and can help
wills 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 long
ones.
• Reader comprehends shorter sentences more quickly than
longer 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 a
numbered/lettered section) helps the look of the will and makes
it less daunting.
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Copyright © 2011 Stewart McKelvey
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:
 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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Copyright © 2011 Stewart McKelvey
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
who are usually the executors and beneficiaries.
• Use proper names where appropriate instead of defined terms
like “spouse” or “child”.
• BUT plain language is not always shorter than traditional legal
terms.
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Copyright © 2011 Stewart McKelvey
Plain Language – The How To’s
(continued)
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Traditional
Plain Language
• Divide the rest of my
estate among my
children in equal
shares per stirpes.
• Divide the rest of my estate equally
among those of my children who survive
me. But if a child of mine does not
survive me, and that deceased child has
any children then alive, then those
children are to receive equally the share
that my deceased child would have
received if then alive. [Can continue to
grandchildren and remoter generations
in the same way.]
Copyright © 2011 Stewart McKelvey
Some Examples
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Traditional
Plain Language
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I appoint my spouse, Jane Doe
(hereinafter referred to as “my
Spouse”), to be the sole Executrix and
Trustee of this my Will, but if my
spouse does not survive me, or is
unable or unwilling to act or to continue
to act, then I appoint my son, Robert
Doe, to be the Executor and Trustee of
this my Will, but if my said son does not
survive me, or is unable or unwilling to
act or to continue to act as Executor
and Trustee, then I appoint my
daughter, Jennifer Doe, as Executrix
and Trustee in his place and stead.
I appoint my wife, Jane, as my executor
and trustee. If she is unable or unwilling
to act or to continue to act, I appoint my
son, Robert, as my executor and trustee.
If he is unable or unwilling to act or to
continue to act, I appoint my daughter,
Jennifer, as my executor and trustee.
[Assumes a previous family clause
where full names of Jane, Robert and
Jennifer and their places of residence
have been noted.]
Copyright © 2011 Stewart McKelvey
Some Examples
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Traditional
Plain Language
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•
I declare that the expression “Trustees”
wherever used in this my Will and in any codicil
thereto shall mean, where the context permits,
the Executrix, Executor and Trustee of this my
Will for the time being acting as such, whether
original, additional or substituted. I direct that
throughout my Will wherever the plural is used it
shall be construed as meaning the singular or
vice versa and the masculine shall be construed
as meaning the feminine or a body corporate as
the sex or context requires.
• Why a declaration when a simple definition
works?
• When would the context not permit? If the
plural shall be construed as the singular
you are never saying what you really
mean!
• And if you use the feminine gender it does
not include either the masculine or the
neuter genders!
In this will, the term “trustees” means
my executor and trustee or executors
and trustees from time to time. Any
reference to my trustees in the plural
form includes the singular form and
words importing any gender shall
include the other genders.
Copyright © 2011 Stewart McKelvey
Some Examples
Traditional
• I give, devise and
bequeath all my property,
including any property
over which I may have a
general power of
appointment, to my
Trustees upon the
following trusts and I
direct my Trustees to…
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Plain Language
• I give all my property to
my trustees on the
following trusts to…
Copyright © 2011 Stewart McKelvey
A Cautionary Tale
• Testator’s will provided as follows:
“I GIVE, DEVISE AND BEQUEATH to my Trustees and Executors all
the shares of Stock of the Royal Bank of Canada, and of stock of the
Canadian Bank of Commerce registered on the Shareholders
registers of said Banks in the name of [testator] IN TRUST to be
divided equally between such of my nephews and nieces (sons and
daughters of my brother [brother] and my sister [sister]) who may be
living at the time of my death. This disposition of these share is in
accordance with a written request of my father contained in a letter
directed to me before his death.”
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A Cautionary Tale (cont’d.)
• Testator then goes on to make other specific bequests and to
distribute 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”
• 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 included
only the shares of Royal Bank registered “in trust” or whether it
included all bank shares
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A Cautionary Tale (cont’d.)
• If all bank shares were part of the specific gift there would be a
deficit and nothing for the numerous residual beneficiaries, most of
whom were charities.
• Interpretation motion went before Smiley, J, of the Nova Scotia
Supreme Court in late 1945 – ruled in favour of all shares being part
of the specific gift
• Residual beneficiaries appealed to the Nova Scotia Supreme Court
en banc
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A Cautionary Tale (cont’d.)
• Heard by four members and on January 8, 1946 judgment affirmed
on equal division!
• Residual beneficiaries further appealed to the Supreme Court of
Canada and Rand, J. issued an unanimous judgment on June 11,
1946 in favour of the residual beneficiaries
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A Cautionary Tale (cont’d.)
• The punch line – the will was drafted by my grandfather with himself
and his first cousin as executors for his uncle!
• See Cummings v. Cragg and Donahoe and Cragg, [1946] 3 DLR
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 good
drafting.
• “All for mother” might be the simplest will written, but the writer
actually meant his wife who he referred to as “mother”! (Thorn v.
Dickens, (1906 WN 54).
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QUESTIONS
???
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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).
3. BC Securities Commission Plain Language Style Guide
(Updated March 2008).
4. Against Plain English: The Case for a Functional Approach to
Legal Document Preparation by David Crump, 2002 (33 Rutgers
Law Journal 713).
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Contact Information
Richard Niedermayer
Stewart McKelvey
1959 Upper Water Street, Suite 900
PO Box 997
Purdy’s Wharf Tower One
Halifax, NS B3J 2X2
Telephone: (902) 420-3339
Fax: (902) 420-1417
email: [email protected]
Website: www.stewartmckelvey.com
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Copyright © 2011 Stewart McKelvey