The cardinal rule of wills drafting is that there is no such thing as a “simple will.”
There is a tendency amongst some wills practitioners to underestimate the difficulty of drafting a proper will. Many practitioners still seemingly believe in the myth of the “simple will”. It must be stressed that any document that has consequences as permanent and far-reaching as a will can never be “simple”.
Even a straightforward will can be fraught with drafting problems and potential liability. As we know, a will speaks from death and cannot be altered after death. I refer to these types of wills as potential “time bombs” of liability. There is no opportunity to correct errors, confirm what the testator really meant, fill in the gaps or modify the ambiguous. A small drafting error can create an ambiguity that may take years to resolve in the courts. In a nutshell, a poorly drafted will may very well come back to haunt the draftsperson after the death of the testator.
Most drafting errors are probably caused by inexperience and haste on the part of the draftsperson. Unfortunately, many practitioners perceive that a wills practice is not lucrative, and that in turn causes many practitioners to over delegate the drafting to legal assistants, without providing adequate supervision of their work. Many practitioners take instructions hurriedly, draft wills hastily, and spending insufficient time on investigating facts of law, questioning clients, and reviewing the will. Many practitioners are dabblers in this area and do wills almost as a courtesy to their clients.,
A will is a very personal document, and is quite literally, a testator’s last word about how his or her estate is to be disposed of. The only constraints on the testator’s wishes are public policy and the law, and if neither are contravened, the testator can make almost any type of will.
The wills practitioners has several duties that include:
1) Spending sufficient time to properly canvass with the client his or her instructions ,and then understanding those instructions precisely, after giving appropriate advice with respect to same;
2) Translating the instructions into testamentary provisions that are valid and that clearly express the testator’s intentions;
3) Gathering all the information required in order to properly prepare the will and to give effect to the testator’s wishes;
4) Taking into account other documents to which the testator is a party, such as dealing with assets that pass outside of the estate, and applying legal principles that may affect the provisions of the will.
Simply put, it is the wills practitioner’s duty to ask the right questions and draft the will properly in accordance with the client’s instructions.
All this takes time, and together with the pressures of high overhead and other such demands, the practitioner may be tempted to draft wills in haste. Historically, most wills practitioners have charged a fixed fee for the preparation of wills, and not billed their actual time that they have spent on the file. This has led many practitioners to view the drafting of wills as a non lucrative type of work. Thus they typically want to take shortcuts to save time.
Wills practitioners should consider the following factors:
1) There is no rule preventing the practitioners from charging his or her actual time, and in fact such a practice should be encouraged.
2) The practitioners should explain to the client the amount of time it properly takes to prepare a will, the amount of expertise that is required for same, the risk of liability, and the amount of assets that is being dealt with in order to help persuade the client that the cost may be higher than he or she wishes to pay, but that it is still good value in the “big picture” of things.
3) If the client is unwilling to pay, then it is open to you to refuse to do the work.
4) If you accept the work, then you accept the responsibility of doing it properly and promptly.
Getting the necessary information from the client
Clients frequently attend to your office with firm decisions about how they want to dispose of their estates. It is your duty to properly examine and scrutinize these instructions as many of these instructions are often neither practical nor advantageous to the interest of the estate or to the beneficiaries. The wills draftsperson must educate the client and explain to the client the nature and consequences of the proposed testamentary provisions. It is not uncommon for the clients initial instructions to be flawed. One of the worst examples that I have seen of this was a will prepared by a notary that gave two individuals who did not even like each other, a life interest in the same piece of property. The results were perverse and ended in litigation.
Another example of this was a will that I was asked to give an opinion on where the deceased left her $1 million estate for the benefit of her two dogs and four cats for their lifetime. The life expectancy of the cats was 20 years. Upon the death of the last pet the estate went to the deceased’s business partners, as she had no spouse or children. While the testator is quite free to do such a will, I really question whether the drafting solicitor exercised sufficient firmness to try and dissuade the testator from doing such a will. In my view it would have been far more preferable to set aside a sufficient sum of monies to care for the pets for the remainder of their lifetime, ( the gravy train formula) and to have dispersed the majority of the monies after probate to the residual beneficiaries.
I have many other examples. I recently had a vigorous discussion with a long time Chinese client who wanted to leave his entire estate to his only son, and nothing to his wife of 40 years or their daughter. His explanation of “Chinese custom” did not wash with me.
What I am attempting to say is that clients often have firm opinions as to what they think they want to achieve with their will that are often simply not practical, or even possible, and might surely end in litigation. It is the job of the drafting practitioner to provide proper objective counsel in this regard.
I think it is essential that a proper checklist such as the Law Society checklist for wills instructions be used. It can often be condensed to make it more workable. To get the correct information, the practitioner must ask the right questions. The wills practitioner can simply never have too much information in order to give proper advice. The bottom line is that it is your duty to carry out the client’s instructions as closely as possible, but it is an equally important duty to make sure that clients understand that they should not necessarily do what they want to do, and if they insist after proper advice, then they must accept and approve the consequences.
Sample organizational chart for a will
One tried and true technique of wills drafting is to try and break the will down to it’s basic components, so as to demystify the task at hand. Here is a sample of how most wills can be broken down:
Part One: Initial matters
A) Last Will Revocation
B) Appointment of executor and trustee
C) Appointment of alternate executor and trustee
D) Appointment of Guardian
Part Two: Disposition of estate
A) Vest property in trustee
B) Disposition to Beneficiaries:
1) Specific Bequests
2) Pay Debt, testamentary expenses
5) alternative residual beneficiaries
Part Three: Administration of Estate
Powers of Trustee
1) power of the sale or conversion
2) trust for minors
3) payment for minors
4) investment Powers
5) power of distribution in specie
6) power to carry on business and other powers that may be necessary or appropriate
Part Four: Closing Matters
1) charging clause
2) funeral wishes
Remember that the client must “know and approve the contents” of the will. In order that this can be achieved the goal should be to draft a will that the client may read and understand for herself for himself. Words used in the will are given their ordinary meaning by the courts. A Judge should only consider the will and the facts and circumstances known to the client at the time the Will was made to determine the client’s testamentary wishes. The use of a logical arrangement of paragraphs and clauses such as displayed in the above noted organizational chart will assist the client in that endeavor. The use of headings, definitions, and the numbering of paragraphs and clauses will also assist in that regard. Also bear in mind the aging population, and use a reasonably large font.
Style of Drafting: 19 Tips
1) Strive for simplicity without sacrificing precision.
2) Strive for brevity without sacrificing comprehensiveness.
3) Be consistent in the use of tense and the use of terms. All of the clauses to be used must then be looked at together to ensure a uniform drafting style throughout. The will created must not look for like a patchwork quilt of style and language, as this could lead to interpretation problems and possible negligence claims .
4) Strive for the use of modern plain language rather than verbose and archaic expressions. For many years now there has been a movement towards the use of plain language to replace legalese and bureaucratic writing. Plain language is straightforward prose, carefully written with the needs of its primary readers in mind. Strive to make your average sentence length shorter , and to simplify your sentence structure.
5) Strive to eliminate redundant words and phrases. Wills draftspersons have the tendency to use couplets and triplets when one word carries the intended meaning. For example the words nominate, constitute an appoint could be condensed to simply appoint. The words give, devise, and bequeath could be shortened to simply give.
6) Strive to not use foreign words in wills, unless you’re referring to foreign places or persons. For example do not use Latin phrases such as “bona fide” when the English good-faith conveys the same meaning. Similarly do not use expressions such as “cy-pres” or “a ventre sa mere”, when they can be replaced with “as near as possible” and “in its mothers womb”
7) Do not use the word “issue” which ordinarily means all of the deceased’s lineal descendants, but instead use the words child or children, grandchild or grandchildren. Similarly do not use the words per stripes or per capita but instead describe the method of distribution.
I am currently litigating the following clause from a will that uses the word issue:
“To divide the residue of my estate between my daughters Mary and Joan who survive me in equal shares per capita but if any child of mine predeceases me leaving issue him or her surviving, the issue of that deceased child surviving me shall take (and if more than one in equal shares per stripes as tenants in common) the share which his or her or their parent would have taken if living.”
The deceased had a son that predeceased him by 10 years leaving two children. At the time he executed his will he only had the two daughters Mary and Joan. The Will is poorly drafted in that it refers to both the word issue as well as the words any child of mine– him or her surviving. I am arguing that the issue of the deceased child, namely the deceased child and the children born of the child ( grandchildren) share equally in the estate with Mary and Joan.
However, leaving aside the poor draftsmanship that has resulted in litigation, I have never met a client yet that wants to provide for his or her lineal descendants. They usually want to provide for their children, and if a child has predeceased, leaving grandchildren, then to the grandchildren instead.
8) Do not do codicils as it is too easy to make a mistake. Disregard the client’s concerns about costs in this regard. If the client wants to make a change to a will, then draw a new will.
9) Try to use percentages or shares rather than specific amounts. Then add up the percentages or shares several times to ensure that they add up to 100 percent. In Sarkin v Sarkin estate, 36 E.T.R.139, , the draftsperson did use shares, but they only added up to55% of the residue. The remaining 45% went by way of a partial intestacy.
10) Do not use precatory words such as a “wish” as they are not binding on the executor.
11) Be precise in your description of assets so as to avoid ambiguities.
12) Carefully check for inconsistent clauses
13) Check to see that no intestacy or partial intestacy has been created. I once litigated a homemade will where the testatrix put in a specific clause stating that she did not wish her brother to ever share in her estate by reason of bad past behavior. She executed the will without having included a residual beneficiary clause, and thus created a partial intestacy. The effect was that her next of kin, namely her brother, inherited.
14) Sufficiently identify each beneficiary. Charities can be a particular problem and it is necessary to both understand the structure of the charity and obtain the testator’s instructions as to which part of the charity he or she wishes to benefit, as well as to ensure that the name of the charity is correct. The charity should be contacted if possible to ensure accuracy. Leaving a bequest to “ charitable and educational institutions” will undoubtedly lead to lots of litigation amongst various charities and education institutions..
15) Be consistent in the words that you use.
16) Try not to leave a specific parcel of property to a beneficiary as there is a good likelihood that the testator will not own the property at the time of his or her death. A better way to accomplish such an intention is to use a clause such as “to transfer to Mary, if she survives me, whatever house and property that I own at the time of my death”, or such similar type clause.
17) Only attempt to do wills that you are completely experienced with and totally comfortable doing.
18) Review the will clause by clause very carefully with the client. It should never be a cursory review. It may be helpful to paraphrase each clause to the client in simple terms, as most clients do not really understand what most of the clauses mean. It is suggested that where possible and practical, e mail, fax or at least mail the wills to the client review prior to seeing them in your office. This gives the client time to consider the will, and to reflect on it and make any changes that the client considers appropriate. This is preferable to the client attending and requesting changes to be made in your office while they are there, as these types of changes are often rushed.
19) Use technology but beware that it sometimes does strange things like leave out paragraphs and other such unexplained mistakes.
I again stress that there is no such thing as a simple will. While a wills practice can be enjoyable and rewarding, the draftsperson can never let his or her guard down for one instant re the myriad of potential problems that can arise in this type of practice. The client needs firm advice and guidance throughout the taking of instructions, and again during the review of the will at the time of execution. Charging appropriate fees can mitigate the pressure that practitioners often feel to “rush” the will process due to overhead pressures.