The Annotated Will Law Society of Upper Canada January 12th, 2017

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1 The Annotated Will Law Society of Upper Canada January 12th, 2017 Drafting for Clarity 2- Drafting for Clarity Mary-Alice Thompson, TEP, C.S. Cunningham Swan Lawyers Drafting for Clarity 2 Drafting philosophy Making wills more transparent clear, thorough avoiding legalese Drafting should be appropriate in tone, diction, and style Drafting should be appropriate to writer, the audience, and the subject January 12,

2 3 What is the subject? Tax planning? Last words? Family relations? The death of the will-maker? Honour the gravity of the occasion High style obfuscation January 12, 2017 Writing Transparently The simple will = unicorn plain simple-minded or childish or simplified or dumbed down Plain language is good, normal language that adults use every day of the year. It lets the message come through with the greatest of ease. - Robert D Eagleson, The Case for Plain Language (Toronto: Canadian Law Information Council, Plain Language Centre, 1989). Good drafting draws attention to the meaning not language 2

3 Why? Client relations Knowledge and approval Problems in the will are more likely to come to light Executors and beneficiaries understand their rights and duties Spotting errors in your own drafting Using Precedents Read the whole precedent, and understand it before you change it Customize it thoughtfully E.g. minors clauses changed to authorize the trustees to hold the funds to age 21 Saunders v. Vautier If in Doubt, Leave It Out probability of need v. the risk of misunderstanding longer is not necessarily better 3

4 Some Usages to Avoid Doublets and Triplets rest, residue, and remainder right, title, and interest sell, call in, and convert will, direct, and declare Provisos provided that = if, except that = but More Usages to Avoid False Demonstrative Adjectives said (as in my said wife ) gives an illusion of precision rather than real precision Antiquated language Hereinbefore, hereinafter, hereunder, aforesaid, aforementioned Latin phrases But.. shall = must 4

5 And/Or (thanks to David C. Elliott) And/or is repugnant to the spirit of the language, English or French. - Pigeon J, former Justice of the Supreme Court of Canada bastard conjunction - Viscount Simon a befuddling, nameless thing - Wisconsin Supreme Court common and deplorable - Australian High Court A and/or B A or B, or both Has been held to mean the court can choose either and or or Good Drafting Use the present tense: to divide the residue of my estate into as many equal shares as there shall be children of mine who survive me who are alive on my death, provided that if any child of mine shall have predeceased me but shall have issue living alive at my death, such deceased child of mine shall be considered alive for the purpose of such division. to divide the residue of my estate into as many equal shares as there are children of mine who survive me, but if any child of mine dies before me and has issue living alive at my death, that deceased child s share must be divided among his or her issue in equal shares per stirpes. 5

6 Paragraphing Every paragraph in the will should be numbered Possibly except the first paragraph and the attestation Avoid long blocks of text Use Headings ( The headings are for reference only. ) When referring to other part of the will, either give the paragraph number, or use above or below (but make sure there is no ambiguity) Word Use Define and Capitalize Be consistent E.g. shares v. parts. Jestley v National Trust Co., [1994] BCJ No 3332, 2 ETR (2d) 239 (BCSC). estate, was used in both the clause giving the personal effects and in the residue clause. The court determined that the word had a different meaning in the personal effects clause. Proofread Proofread 6

7 Example #1 If my spouse should predecease me or should survive me but die within a period of thirty days after my death: (i) subject to the rights under the Exemptions Act, to pay out of the capital of my general estate my legally enforceable debts, funeral and all expenses in connection with the administration of my estate and the trusts created by my Will charging first the residue, then specific bequests, then devises. My Trustee shall also pay all estate, income, inheritance and succession duties or taxes whether imposed by Alberta or Canadian law or by any other jurisdiction that may be payable in connection with any property passing or deemed to pass by any governing law on my death or in connection with any insurance of my life or any gift or benefit given or created by my Will conferred by me either during my lifetime or by survivorship or by this Will and whether such duties or taxes be payable in respect of estates or interests which fall into possession at my death or at any subsequent time. Such payments shall be made at such time and in such manner and subject to such security as my Trustee in my Trustee s discretion determines; Example #1 (Revised) If Mary dies before or within 30 days after I do, I want John to: (a) (i) (ii) pay out of the capital of my general estate, my legally enforceable debts; my funeral expenses; (iii) the expenses incurred in administering my estate; (iv) the trusts created by this Will (charging first the residue then specific bequests, then devises?). (b) pay any tax or duties which my estate is liable to pay. 7

8 Example # Administration of Estate To carry out the terms of my Will, I give my Trustee the following powers: 7.01 Realisation To call in and convert into money the residue of my estate in such manner and upon such terms as my Trustees think best, and, in order solely that the residue of my estate shall be converted in an advantageous manner, I give my Trustees power to postpone the conversion of any part thereof with power to retain any part thereof in the form in which it may be at my death (even though it may not be in a form which would constitute an investment authorized for trustees and whether or not any liability attaches to such part of my estate) until an advantageous conversion is obtainable and I declare that my Trustees shall not be responsible for any loss which may be occasioned to my estate resulting from a properly considered postponement and retention. Example #2 (Revised) 7 Administration of my estate (1) Jane, to carry out your Trustee functions, you can turn the rest of my estate into money in whatever way and over whatever period you think is appropriate. (2) As you do this you can leave investments in the same form that they were when I died if you think it will be an advantage to my estate to do so. Any investments left are to be considered as investments authorized by this Will. (3) Jane is not to be held responsible for any loss to my estate resulting from a properly considered decision to leave investments in the form they were in when I died. 8

9 Example #3 I give, devise and bequeath all of rest, residue and remainder of my property which I may own at the time of my death, real, personal and mixed, of whatsoever kind and nature and wheresoever situate, including all property which I may acquire or to which I may become entitled after the execution of this will, in equal shares, absolutely and forever, to ARCHIE HOOVER, LUCY HOOVER, his wife, and ARCHIBALD HOOVER, per capita, to any of them living ninety (90) days after my death. References Robert C. Dick, Q.C., Legal Drafting, (2d), Carswell (1985). E.L. Piesse, The Elements of Drafting, (6th), Law Book Company (1981). David Mellinkoff, The Language of the Law, Little Brown and Co. (1963). Peter M. Tiersma, Some Myths About Legal Language, (Law, Culture and the Humanities, 2006; 2: 29-50) Laura West, Tips and Traps in Will Drafting, LSUC, 16th Annual E&T Summit, November Sir Ernest Gowers, ed., Fowler s Modern English Usage, 2d ed. (Oxford: Oxford University Press, 1983). James P Taylor & Fred Irvine, Form/Syntax and Problems with Language in Estate Planning and Administration, Reference Materials: 43rd Bar Admission Course (Law Society of Upper Canada, 2001). 9

10 Thank you! Mary-Alice Thompson, TEP, C.S. Cunningham Swan LLP 27 Princess St., Suite 300 Kingston, ON K7L 1A