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Elements of Drafting Estate Plans

By: Chris J. Anderson

Our stock in trade is communication.  But how many of us focus on communicating when we draft wills and trusts?  If you are wondering why the language we use is important, several commentators have indicated that among the negligent acts for which estate planners have been held liable, the number one problem is faulty draftsmanship.  Not mistakes in applying substantive law.  As has been noted:

The attorney who practices estate planning is particularly vulnerable to liability for malpractice.  He is dealing in an area that requires an understanding of a multitude of legal fields: state probate law, trust law, future interests, and state and federal taxation.  Typically, the final impact of an estate plan is not known until the client’s death, often years after the documents effecting the disposition of the estate were drafted and executed.  Any error exposed at that time is often irremediable.  Further, the parties seeking redress for the error are not likely to be the lawyer’s own clients, with whom he has established a rapport, but rather the children of his clients, or other disappointed potential beneficiaries who do not look on the attorney as a friend.  Adams & Abendroth, Malpractice Climate Heats Up for Estate Planners, Trusts & Estates 41 (April 1987).

Prolix and confusing language is not confined to attorneys drafting wills and trusts.  The opening paragraphs from two cases below illustrate the difference attention to language can make.  The first, by Judge Desmond, is virtually incomprehensible without diagramming.  The second, by Judge Cardozo, explains a very complicated (and famous) fact situation in simple and easy to understand language.  Pay particular attention to the second sentence of Judge Desmond's opinion:

DESMOND, J.  The amended complaint herein has, in response to a motion under rule 106 of the Rules of Civil Practice, been dismissed for insufficiency.  Its principal allegations are these: plaintiffs are first cousins, but not distributees, of Mary Sheldon Lyon, who died in October, 1946, leaving a will, executed in 1943, which gave almost her whole estate to defendant Father Divine, leader of a religious cult, and to two corporate defendants in some way connected with that cult, and to an individual defendant (Patience Budd) said to be one of Father Divine’s active followers; that said will has been, after a contest instituted by distributees, probated under a compromise agreement with the distributees, by the terms of which agreement, to which plaintiffs were not parties, the defendants just above referred to will receive a large sum from the estate; that after the making of said will, decedent on several occasions expressed “a desire and a determination to revoke the said will, and to execute a new will by which the plaintiffs would receive a substantial portion of the estate,” “that shortly prior to the death of the deceased she had certain attorneys draft a new will in which the plaintiffs were named as legatees for a very substantial amount, totaling approximately $350,000”; that “by reason of the said false representations, the said undue influence and the said physical force” certain of the defendants “prevented the deceased from executing the said new Will”; that, shortly before decedent’s death, decedent again expressed her determination to execute the proposed new will which favored plaintiffs, and that defendants “thereupon conspired to kill, and did kill, the deceased by means of a surgical operation performed by a doctor engaged by the defendants without the consent or knowledge of any of the relatives of the deceased.”  Latham v. Father Divine, 86 N.E.2d 168 (N.Y. 1949).

CARDOZO, J.  Plaintiff was standing on a platform of defendant’s railroad after buying a ticket to go to Rockaway Beach.  A train stopped at the station, bound for another place.  Two men ran forward to catch it.  One of the men reached the platform of the car without mishap, though the train was already moving.  The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall.  A guard on the car, who held the door open, reached forward to help him in, and another guard on the platform pushed him from behind.  In this act, the package was dislodged, and fell upon the rails.  It was a package of small size, about fifteen inches long, and was covered by a newspaper.  In fact, it contained fireworks, but there was nothing in its appearance to give notice of its contents.  The fireworks when they fell exploded.  The shock of the explosion threw down some scales at the other end of the platform many feet away.  The scales struck the plaintiff, causing injuries for which she sues.  Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 (N.Y. 1928) 

What should we learn from these examples?  There are several general guidelines that we can employ when drafting.  The first four are items we all have been taught to use.  The last three perhaps not often enough.

#1.       The will and trust should express the testamentary plan in unambiguous language.  The object here is to eliminate any need for a will or trust construction suit to determine who takes what property. 

#2.       The will and trust should cover all reasonably foreseeable contingencies.  Again, the object is to not require rules of construction to decide who takes the testator’s property if some unprovided-for contingency occurs. 

#3.       The will and trust should be technically correct as a matter of substantive law. 

#4.       The testamentary plan should minimize taxes to the extent that this objective is consistent with the client’s overall planning objectives. 

#5.       To the extent possible, the will and trust should be expressed in language that most people, as distinguished from most lawyers, regularly employ.  We should recognize at the outset that this goal is not always attainable.  There will be instances—most notably when the will or trust involves tax planning—when legalisms, Code words and words of art necessarily must be employed.  And this makes it all the more important to use “people words” in the rest of the will or trust. 

#6.       The will and trust should be organized and written in such a way that the client has a reasonable chance to at understand it.  And the client is not the only party who has a legitimate interest in being able to understand the will or trust.  “A will or trust agreement intended to last for a prolonged time creates a financial charter for the client’s family and friends who are its beneficiaries.  Haven’t they the right to expect such an important document to be reasonably comprehensible to them?” Schlesinger, English as a Second Language For Lawyers, 12 U. Miami Inst. Estate Planning 700 (1977).  Also, a fiduciary (executor, trustee) will be charged with administering the estate or trust.  While fiduciaries should expect that the portion of the will or trust addressed to them will contain some technical lawyer’s language, this is no reason to eschew all attempts to speak to them clearly. 

#7.       The will and trust should be written in a style that conforms to accepted rules of English usage as to sentence structure and length, punctuation, and grammar.  Stated another way, the instrument should reflect that the drafter is as familiar with Strunk & White as he or she is with legal treatises and the Internal Revenue Code.

Contact Chris J. Anderson at canderson@dysarttaylor.com or 816-931-2700.