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, testified2:

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 account3:

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 crossreferences 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 thirtyseven 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.

*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.

A will is valid only if the maker has testamentary capacity. What if the will-maker displays that capacity at the beginning of the process with his or her lawyer, when instructions are given, but loses capacity by the end of the process, when the will is signed? This article provides a brief summary of the law on point:

As a general rule, a person making a will must have the requisite testamentary capacity on the date the will is signed. An exception is available and the general rule does not apply where the will is prepared and signed as part of a two stage process, with the will-maker giving instructions to a lawyer for the preparation of a will on one day and then, at a later date or time, signing a will prepared to accurately give effect to those instructions. Where that occurs, the test for capacity is relaxed on the date of execution, and the will-maker does not have to possess full testamentary capacity at that time. Instead, the will-maker need only to have the capacity to understand that he or she is signing a will, and that the will being signed gives effect to the instructions communicated earlier. Provided that vestigial thread of capacity remains, and full testamentary capacity had been present earlier, it will not defeat the will even though the will-maker’s capacity has diminished to the point where he or she can no longer understand the terms of the will, or no longer has the powers of mind to understand the instructions he or she gave earlier, or has lost the capacity to reformulate those instructions. The authorities support the conclusion that the loss of capacity can be fairly profound, and includes examples of will-makers who have successfully executed wills while clearly lacking testamentary capacity and barely able to keep conscious. This exception generally comes into play when a lawyer is involved but is not limited to that scenario. What is required is a crystallized statement of the will-maker’s final testamentary intent when the will-maker has testamentary capacity followed by an accurate reproduction of that intent in the form of a will signed later. All of these points are discussed in the sections that follow.

The exception outlined above is commonly ascribed and cited to Parker v. Felgate, but has been a consistent component of the laws of England for more than 250 years. It remains good law in England. It has been cited with approval and consistently applied in Canada. It appears to enjoy continuing approval and application in New Zealand as well.

*John E.S. Poyser BA, LLB, TEP provides estate litigation services for clients, as well as opinion work for other lawyers, and has offices in Manitoba and Alberta (jpoyser@traditionlaw.ca).

Capacity is task specific. A complex will requires a simply higher capacity level on the part of the maker than a simple will. That can be an important consideration where a will-maker is tottering on the edge of incapacity. Some specialist lawyers in this area have adopted a practice known as a “tear-away will” to address that situation. What does that look like? This article provides a brief description of the strategy:

A “tear-away will” is suggested as a tool to be used when a will-maker is on his or her deathbed. Suffering from diminished capacity, the client may not understand a complex will. In pain, and possibly suffering from difficulties remaining conscious or concentrating, the client may find it difficult to attend to the explanation and execution of a will-document that might stretch to ten or twenty or fifty pages long. A tear-away will breaks the longer document into a main will, brief, easily understood and to the point, containing and carrying forward the most important elements of the estate plan, and one or more codicils to the main will, signed immediately afterwards or after a brief rest, containing any provisions that are longer and more demanding. Those provisions may include material that is contingent, and unlikely to be necessary, such as alternate executors or gifts over, or that is unduly complex, such as the terms increasing the effectiveness of a basic charitable gift made in the main will, or that are so called “boiler-plate” provisions, such as paragraphs speaking to bonding, perpetuities, or taking executor’s fees in installments. A person attacking the will may succeed in convincing a court that the will-maker did not have the capacity to understand the more complex provisions, or was unable to concentrate long enough to understand the ten pages of boiler-plate. But where that occurs the codicils are intended to fall by the wayside. The main will, stark in its simplicity, and signed first after five minutes of explanation, is more difficult to attack. The idea is to have the main will successfully go to probate even if the codicils fail.

There is extensive authority for the proposition that the complexity of the will affects the capacity threshold for the maker. The practice suggested here is not common, but is well founded.

* John E.S. Poyser BA, LLB, TEP provides estate litigation services for clients, as well as opinion work for other lawyers, and has offices in Manitoba and Alberta (jpoyser@traditionlaw.ca).

Lawyers generally have a good working knowledge on how and when to attack a will based on testamentary undue influence. Less known is how and when to attack a will based on testamentary fraud, a sister doctrine. The following sets out the basic law on point:

Testamentary undue influence is typically thought of in terms of coercion. There is good reason for that. Dozens of cases have stated that conduct must amount to coercion if it is to amount to testamentary undue influence. Yet there are also abundant comments in the same cases and others that open the door to characterize testamentary fraud as a second type of conduct that can amount to undue influence. Coercion forces a person to do something against his or her will. Fraud operates differently. Testamentary fraud is an effort to fool a person into believing a false state of affairs that is then instrumental in causing that person to make a testamentary gift that otherwise would not have been made. As indicated earlier, persuasion is permitted, but persuasion is not permitted when it is mounted on a foundation of deliberate lies. Testamentary undue influence by coercion is difficult to establish. It is often pled but rarely proved as the facts rarely sustain it. Undue influence by fraud will be more easily sustained. Isolation, falsehood, and ingratiation are a common recipe employed by predatory family and peers in a bid to subvert a vulnerable person’s property at death.

Early English cases made it clear that fraud could be used to attack wills based on those types of fact situations and that testamentary fraud was a variant of testamentary undue influence.

Some Canadian cases have followed suit. This type of attack is under-utilized, perhaps because it is easily confused with its equitable counterparts:
It is important to recognize and maintain the distinction, alluded to earlier, between the use of the word “fraud” at common law and the use of the same word in equity. Common law fraud involves falsehood that is intentional. Equitable fraud also applies where intentional falsehood is involved, thereby covering some of the same ground, but extends more broadly to any breach of equitable duty. The fraud under consideration here and applicable to wills is common law fraud, not equitable fraud. Equitable fraud does not apply when the court is deciding whether to admit a will to probate.

Equitable fraud is cast so broadly that it applies to any inter vivos transaction that proceeds in breach of any equitable duty imposed by the Court of Chancery. It applies to gifts and other inter vivos wealth transfer transactions, but has no application to wills and other testamentary ones.

* John E.S. Poyser BA, LLB, TEP provides estate litigation services for clients, as well as opinion work for other lawyers, and has offices in Manitoba and Alberta (jpoyser@traditionlaw.ca).