WRITING WILLS
IN PLAIN LANGUAGE
A paper presented to the
Canadian Bar Association (Alberta Branch)
Wills and Trusts Section
by
David C. Elliott
June 1990
Contents
Page #
First words .................................................................................................................................................................... 1
PART 1
THE TEST
Readability tests ............................................................................................................................................................ .2
What do the scores mean? ............................................................................................................................................ 2
PART 2
THE SCORES
General comments ........................................................................................................................................................ 3
Conclusion .................................................................................................................................................................... 3
PART 3
IMPROVING WILLS
What do I mean by "improving" wills? ........................................................................................................................ 4
Why is it worth the effort to write clearly? ................................................................................................................... 4
PART 4
HOW TO WRITE WILLS MORE CLEARLY
Research has helped....................................................................................................................................................... 6
PART 5
SUGGESTED REVISIONS TO THE PRECEDENTS
The precedents ............................................................................................................................................................... 9
Tone of wills ................................................................................................................................................................. 9
Arrangement of clauses .............................................................................................................................................. 10
Suggested revisions to some precedent clauses .......................................................................................................... 10
Last words ................................................................................................................................................................... 17
Appendix 1
Extracts from the
precedent wills examined
1
2
Extracts from the first precedent ................................................................................................................... 18
The second precedent, developed from the Banff Refresher Course ............................................................. 19
First words
In the United States, the United Kingdom, Australia, New Zealand and the European Community
there is a growing interest in writing legal documents clearly. It is all part of a growing interest
in making sure words convey the message that the writer wants them to convey in the clearest
possible way.
This paper examines some precedent will clauses and tests them against the Flesch-Kincaid
readability formula and the Flesch readability index, and suggests some ways to improve their
clarity.
PART 1
THE TEST
Readability tests
Readability tests are tools for checking how easy or difficult documents are to read. A formula
measures the average sentence length of a document in words and the average word length in
syllables. Putting those two numbers into an equation gives a result showing how a text rates on
a readability scale.
I used two readability tests. The Flesch-Kincaid Formula and the Flesch Index. They are both
based on statistical measures of writing.
The Flesch-Kincaid Formula says how easy a text is to read based on what grade level a person
needs to readily understand a written text.
The Flesch Index gives a text a number from 0 (or less) - indicating the writing is virtually
incomprehensible, to 100 - indicating easy to read. A score of 60 - 70 is regarded by the Flesch
Index as plain language.
Rudolf Flesch developed his formula in the 1940's. Since then, with some changes, it has often
been used to test a variety of documents.1
What do the scores mean?
To put the Flesch readability scores in context:
A score of 90-100 means very easy to read. Something like a comic strip.
A score of 70-90 means easy to fairly easy to read.
A score of 60-70 is regarded by the Flesch formula as plain language.
A score of 50-60 means fairly difficult to read - the Calgary Herald and Sun score in this
range. The Herald scored better (easier to read) than the Sun in the 3 pieces tested.
A score of 35-45 means difficult to read. Maclean's magazine scores in this range.
Less than 30 is classed as very difficult to read. The Ottawa Law Journal and Osgoode
Hall Law Review fitted in this range.
A minus rating means the writing is virtually incomprehensible.
1
The Flesch Index has been adopted by a number of States as a way of telling whether insurance policies
meet legal requirements of plain language.
2
PART 2
THE SCORES
General comments
I was given precedent clauses from two Wills. I have extracted some of the clauses and included
them in Appendix 1. The first precedent scored as follows:
(a)
Flesch-Kincaid Formula
The Flesch-Kincaid Formula said that readers need a 21 grade level of education
(9 years of University) to understand it.
(b)
Flesch Index
The Flesch Index said that the precedent scored 26.5. That score rates as very
difficult to read.
The second precedent resulted from the 1990 Banff Refresher Course. It scored as follows:
(a)
Flesch-Kincaid Formula
Readers need a 19 grade level of education (7 years of University) to understand
it.
(b)
Flesch Index
The precedent scored 35.1 on the Flesch Index - classified as difficult to read.
Conclusion
Readability tests are at best a guide. But they do give one way of testing writing. Judged on
readability formulas, the precedents tested are poorly written, difficult to understand, and need
improvement.
Can they be improved without loss of precision? Parts 4 and 5 of this paper suggest ways in
which some of the clauses can be rewritten - turning the document into one that is not only
technically correct but more understandable.
3
PART 3
IMPROVING WILLS
What do I mean by "improving" wills?
I mean writing wills so that they can be more easily understood. I mean getting rid of
unnecessary and archaic language. I mean getting rid of tangled mind bending streams of words.
I mean breaking up the text

into short sentences;

creating organised paragraphs;

making informative headings;

creating better organization within the document.
I mean making a will a personal message not an impersonal one.
In short I mean writing with the reader in mind.
Why is it worth the effort to write clearly?
1
It is efficient
Writing plainly means time saved for both writer and reader. Obviously if the central message of
a clause in a will comes through clearly the reader will grasp what is being said on a first reading
instead of the third or fourth.
Saving time for the reader happens not just once but each time the will is read by each person
reading it. Time is also saved in not having to explain what clauses mean. And of course time
saved can be put to other productive use. Plain language creates a more efficient, effective and
productive working environment, and more satisfied clients.
2
It is economic
Saving time inevitably means saving money. If unnecessary words in wills were eliminated the
bulk of a will would be reduced between 5-50% (or more), with a consequential cost saving.
3
It improves understanding
Clients come to you for help. If they understand what you do for them it is not only good for
them, it is good for you and for the profession. Respect for the law improves because it is
understood.
4
It is assumed that people who sign things understand what they sign. Drafting in plain language
helps make that assumption a reality.
As matters stand now people are put off making wills because of the language lawyers use. They
are frustrated and angered by it. It often means people do not look after their affairs as well as
they might. Lawyers have only themselves to blame.
4
A professional obligation?
The legal profession is justifiably ridiculed for the language it uses. Lawyers are the highest paid
writers and produce the lowest quality writing. It is time to change.
The Joint Committee on Plain Language of the Canadian Bar Association/Canadian Bankers
Association Interim Report suggested lawyers had a social responsibility to write clearly.
Justice Ministers at The Commonwealth Law Conference in Auckland, New Zealand in April,
1990 said
legal documents and legislation should be as simple and as intelligible as their contents allow . . .
. . . in the areas of the law which touched directly upon people in their daily lives - whether
statute law or legal documents - it was a challenge to governments and to the practising
profession to render these meaningful to the lay person.
In the United Kingdom there are calls for the English Law Society to adopt a new practice rule to
keep clients informed about progress on matters "in language which that client can understand".
How can this be done?
PART 4
HOW TO WRITE WILLS MORE CLEARLY
Research has helped
Thirty years of research into how you and I understand what we read has been turned into
suggestions for how to write clearly. The following suggestions apply to all legal writing.
1
Communication
First understand that the written word is as much a form of communication as the spoken word.
When we talk to someone we usually aim to tell them something - we make our verbal pitch in
words that will be understood. Do the same with the written word - use ordinary expressions and
language and your writing will be better understood.
There is no point in writing something that means nothing to the reader.
5
2
Organization
Careful organization of written texts really helps understanding. A logically organized will, with
related issues grouped together, helps lead the reader from one issue to another without leaps in
logic that are difficult to follow.
A good organization will help reduce or eliminate cross references from one clause to another. If
you find a need to constantly cross reference it is a good indication that your organization could
be improved.
3
Headings
Headings can be very helpful if they are informative. They can also be used to create a table of
contents for longer wills.
4
Short sentences
Short sentences are easier to understand than long ones. And the information in short sentences
is more easily retained than information in longer ones. Research shows that our minds
comprehend shorter sentences more quickly than longer sentences.
There are times when short sentences don't work - what then? Make a list. Making a list gives
out information in digestible chunks. Not in one indigestible hunk.
5
Paragraphing
I know how I feel when turning to a page that is one solid block of unparagraphed, untabulated
text. It is uninviting, boring, difficult to read, complicated to untangle. Lawyers are notorious
for long sentences. There is no excuse for it.
Break up the text, put in some headings, and the "look" of the page improves dramatically and, if
only marginally, the text becomes less imposing.
6
Choosing the words
The centuries old stranglehold lawyers have had on the language of the law is slowly breaking
down. Lawyers have started to change the way they write, and to ask for advice from experts in
language. Writing courses for lawyers and law students are starting.
But the legacy of legal language and years of neglect, the ignorance and the lack of interest in
writing clearly will be with us for decades.
How to change?
(i)
think of poor writing as an addiction - how can you kick bad habits? Like any
addiction it takes time and work.
(ii)
read - Appendix 2 contains a short bibliography. Any of those books will
stimulate an interest in writing clearly, and help break bad habits.
6
(iii)
write - There will be no change unless you put into practice the principles of plain
language. Start today.
Try this:
(1)
use one word instead of a phrase. For example
instead of
try
at that point in time
then
by virtue of
by, under
in the event that
if
subsequent to
after
for the period of
for
Notice how the one word is immediately understandable. The phrase tends to be
ponderous and lacks immediate clarity.
(2)
purge archaic words
Hereinbefore, hereinafter, hereunder, said, aforesaid, aforementioned and the like are
wasted words. They do nothing but take up reading time and clutter the text.
(3)
word order
How strange it is that most legal documents have to state an exception before saying what
it is that the exception relates to. You know
"Except for ..., this is what happens ..."
Why should the words be arranged in this order? Why do we force the reader to keep in
mind an exception before he or she knows the rule?2
Writing this way makes even less sense when we realise that inevitably the reader must
read the section at least twice - once to find out the rule and then to apply the exception to
it.
If the exception followed the rule a more natural and understandable approach would
result. An approach designed to help the reader.
2
The traditional response is to warn the reader that the rule cannot be accepted at face value. The exception
acts as a warning up front.
7
(4)
Must we continue with "shall"?
Lawyers have a fixation about writing in the future tense and using the word "shall". But
times are changing. "Must" means the same as "shall" and is being used in legislation,
both in Alberta and elsewhere.
If wills were written in the present tense "shall" would often not be needed. When a
"shall" is needed, try "must". It improves the tone of the document and has the same
legal effect.
The use of "must" also tends to avoid the confusion "shall" creates when it is unclear
whether "shall" is used as a command to do something or as a direction to do something
in the future. The confusion inherent in the use of "shall" has been the subject of critical
comment for over 140 years - we are slow learners.
The use of "must" and writing in the present tense will do much to improve the
readability of wills.3
(5)
and/or
Every book about legal writing warns about "and/or". And for good reason. I am
constantly amazed that lawyers continue to use the expression.
"And/or" has been looked at several times by the English Court of Appeal and House of
Lords. No definitive conclusion was reached about what the expression means.
Conclusion: don't use the expression.4
3
Robert Dick, Q.C. deals with this topic well in Legal Drafting (2nd) 1985 Carswell.
4
Stanton v Richardson 45 L.J.Q.B. (H.L. 1875)
8
PART 5
SUGGESTED REVISIONS TO THE PRECEDENTS
The precedents
This Part of the paper comments on some of the clauses in the precedents included in Appendix
1.
The clauses were selected at random to illustrate various points made in this paper as well as
providing additional suggestions for writers.
In each case the precedent clause is shown on the left hand side of the page - a revised version is
shown on the right.
Not all the precedent clauses come from the same precedent.
Tone of wills
Just because wills are important documents does not mean they have to be written in an
impersonal style. A will is usually a communication by an individual to family and friends. It is
wrong to turn what is a very personal message into something impersonal. A few small changes
could improve the tone of most wills immensely.
For example:
(a)
use real names not impersonal ones. Instead of 'spouse' use a name.
At times, instead of using 'Trustee' it might be appropriate to use a friend's name.
To make sure precision is not lost the definition section could say
In my Will
(a) "Jane" means my wife, Jane Doe,
(b) "Mary" means my Trustee, Mary Smith;
(b)
specific gifts could also be described by the names commonly used for them with the definition section of the will ensuring the common word accurately
describes the gift;
(c)
don't always include definitions at the front of the will, without thought. If the
will is simple it would be just as effective (and improve the tone) if the definition
section were at the end of the will. The reader is then not faced with technicalities
as the first thing to read.
9
Arrangement of clauses
Different wills will call for different organization.
One helpful check is to establish a table of contents for the will so that you can see if there is a
logical progression of ideas and whether similar topics are conveniently grouped together.
Apart from definitions which should sometimes be located at the end of a will think about
putting technical matters (like rules of construction) at the end of the will instead of the
beginning.
The headings of clauses help the arrangement. But the headings should be designed to help the
reader. Headings like "Predeceased definition", "realization", "encroachments" are not helpful.
Suggested revisions to some precedent clauses
The following pages take some precedent clauses and comment on them, suggesting revisions to
make them easier to read.
10
Precedent will clauses
Suggested revision
THIS IS THE LAST WILL of me, JOHN DOE,
presently of Calgary, Alberta, Lawyer.
WILL OF JOHN DOE
This is my last Will.
COMMENT:
COMMENT:
I suggest the address be put at the end, with the signatures.
The word "presently" is not necessary. Is the occupation really
needed?
1 A heading makes the will immediately identifiable. It allows the first
clause to be simplified.
2 Is this clause necessary at all? If former wills are revoked why is it
necessary to say this is the last one? It may not be the last one. The
will is the latest at that point in time - but it may not be the last one.
Definitions
Definitions
COMMENT:
COMMENT:
In traditional wills definitions are usually mixed up with substantive
provisions, e.g.
Separate defined words and substantive provisions. For example, keep
definitions only to define words like this:
3. I APPOINT my spouse, MARY SMITH, of Edmonton, Alberta, to
be my Executrix and Trustee, I HEREINAFTER REFER to my
Executrix and Trustee as my “Trustee.
In my Will
“spouse” means Jane Doe;
“Trustee” means Mary Smith;
Then deal with the substantive provision appointing Mary as Executrix
and Trustee later.
As I suggested earlier, wills could be made much more personal by
using “Jane” in the will rather than “spouse”.
11
Revocation
Revocation
1.
1.
I REVOKE all former Wills and Codicils.
I revoke all former Wills (and Codicils).
COMMENT:
COMMENT:
Is the reference to “and codicils” needed? If it is, what of
“testamentary dispositions” and other things defined as a will under
the Wills Act?
Executors and Trustees
1 “Cancel” is marginally simpler to some readers.
(a) 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, or ceased to be a resident of Canada within the
meaning of the Income Tax Act (Canada), then I appoint my daughter,
JENNIFER DOE, as Executrix and Trustee in his place and
stead.
(a)
2 Another alternative: This Will replaces earlier Wills.
Executors and Trustees
(b)
If Jane does not live longer than I do, or is unable or unwilling
to act when I die or at any later time, I appoint Robert to be the
Executor and Trustee of my Will.
(c)
If Robert
(i) does not live longer than I do, or
(ii) is unable or unwilling to act when I die or at any later
time, or
(iii) ceases to be a resident of Canada within the meaning of
Income Tax Act (Canada),
COMMENT:
1 This clause has 118 words in the sentence. It incorporates a
definition and substantive appointing directions.
I appoint Jane as the Executrix and Trustee of my Will.
I appoint Jennifer to be my Executrix and Trustee.
2 The references to the Income Tax Act (Canada) creates questions.
The first one, for most readers, is what does the reference mean.
Assuming the meaning is satisfactory, the reference to the Income Tax
Act (Canada) may freeze the definition at whatever it is when the will is
made. If that is the intention why not put it in the will?
If the definition is intended to track whatever the definition is the
Income Tax Act, (Canada) perhaps “as amended from time to time” is
needed.
3. The language is inconsistent raising questions about intention. Why
12
appoint Jennifer “in his place and stead”. Is that different from an
appointment as “Executor and Trustee”? If not, why use different
words; if it is different, what is the difference?
Construction
(c) I DECLARE that the expression my “Trustees” wherever used in
this my Will and in my 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.
Construction
At most, all that is needed is
“Trustee” means either Jane, Robert, or Jennifer (Please see clause ___)
or more formally:
COMMENT:
1
Why create a ‘declaration’ when a simple definition does the
same thing?
2
When does the context not permit? If the context does not
permit what does it permit? A contextual problem should be
solved within its own context, not by relying on a clause like this.
2.
I DIRECT that throughout my Will wherever the plural is used
it shall be construed as meaning the singular or vice versa . . .
“Trustee” means the person appointed as the Executrix, Executor and
Trustee of my will under clause ___.
In my will, words in the singular include the plural and words in the
plural include the singular, unless the context otherwise requires.
COMMENT:
Think about this for a moment. The plural . . . shall be construed as
meaning the singular or vice versa 1
Does this mean that you can never say what you really mean
because if you mean and say something in the singular it shall be
construed as plural.
2
“or vice versa” adds to the confusion.
3
The clause is barely saved by “as . . . the context requires”
several lines later.
13
Gender
Gender
. . . and the masculine shall be construed as meaning the feminine or a
body corporate as the sex or context requires.
Surely in most cases we can use the appropriate gender instead of
relying on this artificial rule of construction.
If not, try this:
COMMENT:
“person” includes a corporation
What of the feminine gender? If it is used it does not include either the
masculine or a corporation
or:
“words indicating male persons include female persons and words
indicating female persons include male persons and words indicating
either sex include corporations”.
Direction to Trustees
Direction to Trustees
6.
I GIVE AND APPOINT all my property, including any
COMMENT:
property over which I may have a general power of appointment, and
any assets that were income tax deferred during my lifetime by virtue of There are 3 basic ingredients to this clause.
their being deducted from my normal income, to my Trustee upon the
following trusts and I DIRECT my Trustee:
(i) all property goes to the Trustee;
(a)
subject to my express direction to the contrary, to use my
Trustee’s discretion in the realization of my estate, with power to my
Trustee to sell, call in and convert into money any part of my estate not
consisting of money, at such time or times, in such manner and upon
such terms, and either for cash or credit as my Trustee may in my
Trustee’s discretion decide upon, or to postpone such conversion of my
estate or any part or parts thereof for such length of time as my Trustee
may think best, and I hereby declare that my Trustee shall have a
separate and substantive power to retain any of my investments or
assets in the form existing at the date of my death at my Trustee’s
discretion without responsibility for loss, to the intent that investments
or assets so retained shall be deemed to be authorized investments for
all purposes of this my Will;
(ii) the Trustee is authorized to realize the estate;
(iii) the realization is subject to express contrary directions.
If those principles were expressed clearly it would be easier for the
reader to fit in the important details associated with the direction of the
will.
Even these three ingredients need distinct treatment because the gift to
the Trustees should be followed by the trusts. The administration of the
estate is a separate issue and needs separate treatment. The next
example looks at how the Banff Refresher precedent broke the matter
down and how that might be revised.
COMMENT:
1
Clause (a) has 174 words in it.
14
2
The words “and appoint” are not needed. “Appoint” in this
context means “declaring the destination of any specific property”.
This is being done by the word “give” followed by the instructions.
3
The clause confuses the trusts on which property is held and
the directions given to the Trustee. This is recognized and improved by
the precedent developed following the Banff Refresher Course.
7.00
Administration of Estate
7
To carry out the terms of my Will, I give my
Trustee the following powers:
7.01
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.
Realisation
(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
To call in and convert into money the residue of my estate in such advantage to my estate to do so.
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 Any investments left are to be considered as investments
advantageous manner, I give my Trustees power to postpone the authorized by this Will.
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 (3)
Jane is not to be held responsible for any loss to my estate
may not be in a form which would constitute an investment
resulting from a properly considered decision to leave
authorized for trustees and whether or not any liability attaches to investments in the form they were in when I died.
such part of my estate) until an advantageous conversion is
obtainable and I declare that my Trustees shall not be responsible COMMENT:
for any loss which may be occasioned to my estate resulting from
Put another way, is subclause (3) saying:
a properly considered postponement and retention.
Jane, if you just leave my investments as they are when I die without
thinking about them, you should be liable for any loss to my estate.
Is (3) needed at all?
15
(d)
if my spouse should predecease me or should survive me
but die within a period of thirty days after my death:
If Mary dies before or within 30 days after I do, I want John to:
(a)
(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;
Attestation clause
SIGNED, by the Testator JOE DOE,
in our presence and attested by us
in his presence and in the presence
of each other.
pay out of the (capital of my general estate),
(i)
my legally enforceable debts;
(ii)
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.
COMMENT:
Perhaps (b) is too shortened but surely the liability would be on
the Trustee to pay in accordance with the law whatever the Will
says, so is it needed at all?
Attestation clause
)
)
)
)
I tried but could not improve on the attestation clause. My best
effort
Signed by Joe Doe in our presence, and by us in Joe’s presence
and in the presence of each other.
16
Last words
This paper shows that wills are poorly written and difficult to understand. The way to improvement
is first an awareness of a problem. I hope this paper is a first step to creating that awareness.
A readability test is an imperfect guide about whether a problem exists. It helps to show how your
writing stands up against an objective test. In the end it is only a guide. It can be manipulated to
create a good score while at the same time making the text less clear. But using it, or one of the
many computer software programs, gives a quick and easy assessment of writing - although the
advice is sometimes hard to take!
None of this quite achieves the simplicity of the testator who said
"All for mother"
But even then a court had to determine who 'mother' was. It turned out that it was his wife who he
referred to as 'mother'.
(Thorn v. Dickins (1906) WN 54.)
The best advice is still: write with the reader in mind.
17
Appendix 1
Extracts from the
precedent wills examined
1
Extracts from the first precedent
THIS IS THE LAST WILL OF ME, JOHN SMITH, of the City of Edmonton, in the Province of Alberta.
1.
I REVOKE all former Wills and Codicils.
2.
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.
3.
I APPOINT my spouse, MARY SMITH, of Edmonton, Alberta, to be my Executrix and Trustee, I HEREINAFTER
REFER to my Executrix and Trustee as my "Trustee".
4.
On the death, refusal or inability so to act or to continue to act of my Trustee, I APPOINT my son, JOE SMITH, of
Edmonton, Alberta to be my Executor and Trustee. I HEREINAFTER REFER to my alternate Executor and Trustee as
my "Trustee".
6.
I GIVE AND APPOINT all my property, including any property over which I may have a general power of
appointment, and any assets that were income tax deferred during my lifetime by virtue of their being deducted from my
normal income, to my Trustee upon the following trusts and I DIRECT my Trustee:
(a)
subject to any express direction to the contrary, to use my Trustee's discretion in the realization of my estate,
with power to my Trustee to sell, call in and convert into money any part of my estate not consisting of
money, at such time or times, in such manner and upon such terms, and either for cash or credit as my
Trustee may in my Trustee's discretion decide upon, or to postpone such conversion of my estate or any part
or parts thereof for such length of time as my Trustee may think best, and I hereby declare that my Trustee
shall have a separate and substantive power to retain any of my investments or assets in the form existing at
the date of my death at my Trustee's discretion without responsibility for loss, to the intent that investments
or assets so retained shall be deemed to be authorized investments for all purposes of this my Will;
(b)
if, at my death, my estate consists of any assets that were income tax deferred during my lifetime by virtue
of their being deducted from my normal income, whether otherwise taxable as income to my estate in the
year of my death or not, including (but without limiting the generality of the foregoing) all registered
retirement savings, plans, registered deferred profit sharing plans, registered pension plans whether in the
public service or private employment, and registered retirement income funds through which I am entitled to
benefits, to transfer such assets to my spouse MARY SMITH, and this shall be designation within the
meaning of section 47 of the Trustee Act;
(c)
to pay my debts, funeral and testamentary expenses, and to pay or transfer the residue of my estate to my
spouse, MARY SMITH, if my spouse survives me for a period of thirty days, for my spouse's own use
absolutely;
(d)
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 on my life or any gift or benefit given or conferred by me either
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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;
(iii) when there is no longer any child of mine living
and under the age of 21 years, to divide and distribute my estate or the amount thereof remaining
among my children then alive in equal shares, provided that if any child of mine shall then be dead
leaving any children then alive, such children shall take in equal shares the share which such
deceased child of mine would have taken if living.
2
The second precedent, developed from the Banff Refresher Course
THIS IS THE LAST WILL of me, JOHN DOE, presently of Calgary, Alberta, Lawyer.
PART 1
INITIAL MATTERS
1.00 Revocation
I REVOKE all former Wills and Codicils.
2.00 Executors and Trustees
(a)
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, or ceases to be a resident of Canada within the meaning of the Income Tax Act (Canada), then I
appoint my daughter, JENNIFER DOE, as Executrix and Trustee in his place and stead.
(b)
Any share of my estate passing to one or more of my Executors and Trustees shall not be construed
as a gift to such Executor and Trustee in lieu of Executor's compensation
3.00 Headings and Construction
(a)
I DECLARE that the paragraph headings in this Will are for convenience only and shall not be
construed to affect the meaning of the paragraphs so headed.
(b)
Wherever the plural is used through this my Will the same shall be construed as meaning the
singular and the masculine the feminine wherever the context so requires.
(c)
I DECLARE that the expression my "Trustees" wherever used in this my Will and in my 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.
4.00 Predeceased Definition
A beneficiary of this my Will shall be deemed to have failed to survive me unless such beneficiary has
survived me by thirty (30) clear days.
5.00 Guardianship
If my Spouse fails to survive me or if she survives me, then on her death if all my children have not then
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attained the age of majority, I appoint my sister, SUSAN SMITH, to be the guardian of the persons of my
minor children, but if SUSAN SMITH fails to survive me or if she survives me but dies before all of my
children under her guardianship have attained the age of majority, then I appoint my daughter, JENNIFER
DOE, to be the guardian of the persons of my minor children in the place and stead of my said sister.
PART II
6.00 Disposition of Estate
I GIVE all my property to my Trustees upon the following trusts:
6.01 Debts
To pay out of the capital of my estate my legally enforceable debts, funeral expenses and all expenses
associated with the administration of my estate and the trusts contained in this my Will.
6.02 Residue
(a)
If my Spouse survives me, to pay or transfer the residue of my estate to my Spouse.
(b)
I have been advised of the provisions of the Family Relief Act in Alberta and having regard to the
size of my estate at the present time leave everything to my said Spouse having faith she will care
adequately for my children.
PART III
7.00 Administration of Estate
To carry out the terms of my Will, I give my Trustees the following powers:
7.01 Realization
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 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.
7.02 Payments to Beneficiaries
(a)
Except as otherwise expressly provided in my Will, if any person should become entitled to any
share in my estate before attaining the age of majority, the share of such person shall be held and kept
invested by my Trustees and the net income and capital or so much thereof as my Trustees in their absolute
discretion consider necessary or advisable shall be used for the benefit of such person until he or she attains
the age of majority when the capital of such share or the amount thereof remaining shall be paid to him or
her. Any net income not so used in any year shall be added to the capital of such share and shall be dealt
with as a part thereof.
(b)
To make any payments for any person under the age of majority to a parent or guardian of such
person who receipt shall be a sufficient discharge to my Trustees.
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7.03 Distribution in Kind
To make any division of my estate or set aside or pay any share or interest, either wholly or in part of the
assets of my estate at the time of such division, setting aside or payment, and my Trustees shall determine
the value of my estate or any part of it for the purpose of making such division, setting aside or payment and
their determination shall be binding upon all persons concerned notwithstanding that any of my Trustees
may be personally interested in such division.
7.04 Investment Power
To invest, and from time to time to reinvest, assets of my estate in securities and investments inside or
outside Canada, without being limited to those investments to which trustees are otherwise restricted by law.
7.05 Real Property
If at any time and for so long as any real or leasehold property shall form part of my estate, I give my
Trustees full power and discretion to sell, mortgage, lease without being limited as to term, exchange, give
options on or otherwise dispose of or deal with any real estate held by my Trustees and to repair, alter,
improve, add to or remove any buildings thereon, and generally to manage such real or leasehold property,
including, if my Trustees consider it advisable, the employment of a professional property management
company.
7.06 Discretionary Powers Under the Income Tax Act
To make or not to make any election, determination, designations or allocation pursuant to any taxing
statute including the Income Tax Act, Canada, which my Trustees deem to be in the best interest of my
estate and the beneficiaries thereunder; the exercise by my Trustees of their discretion shall be binding upon
all beneficiaries of my estate even though an advantage may be conferred upon any beneficiary at the
expense of any other beneficiary and even though an even hand is not maintained among the beneficiaries.
8.00 Division of Residue
To divide the residue of my estate into such number of equal shares so that there is one share for each child
of mine who survives me, and one share for each child of mine who fails to survive me but who leaves
children who survive me.
The share of each such deceased child shall be divided equally among his or her children (being
grandchildren of mine) who survive me.
The share to which each such child or grandchild of mine is or shall become entitled, either at or after the
date of my death shall be held upon the trusts described in the following subclauses.
Trusts for Children
(a)
To invest the share of each child of mine and to distribute the capital of each child's share to him or
her, subject to encroachments, in the following staggered payments:
(i)
upon the child attained the age of twenty-one (21) years, twenty (20%) percent of that child's
share, as then calculated;
(ii)
upon the child attaining the age of twenty
-three (23) years, thirty (30%) percent of that child's share, as then calculated;
(iii) upon the child attaining the age of twenty
-five (25) years, the balance of the capital of that child's share then held in trust.
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Trusts for Grandchildren
(b)
To invest the share of each such grandchild of mine and to distribute the capital of each such
grandchild's share to him or her, subject to encroachments, upon each such grandchild attaining the age of
twenty-one (21) years.
Encroachments
(c)
While my Trustees hold any share of my estate in trust for any child or grandchild of mine, they
shall have the power to distribute the income or capital or as much of either or both of such share as my
Trustees may from time to time, in their absolute discretion, consider advisable for the benefit of each such
child or grandchild. The income from any share not paid in any year shall be added to the capital of such
share.
Deceased Child
(d)
If any child of mine survives me but dies before becoming entitled to receive the whole of his or her
share, (the date of such child's death herein called the "Date of Division") the remainder of that child's share
held in trust at the Date of Division shall be divided as follows:
(i)
equally among his or her children alive at the Date of Division;
(ii)
but if no such children are alive at the
Date of Division, then equally among my other children alive at the Date of Division;
however, if any child of mine is not alive at the Date of Division, but leaves any children
who are alive at the Date of Division (the "Surviving Children") then the share to which
such deceased child would have been entitled if alive at the Date of Division shall be
divided equally among such deceased child's surviving children.
Deceased Grandchild
(e)
If any grandchild of mine survives me but dies before becoming entitled to receive the whole of his
or her share, (the date of such grandchild's death herein called the "Division Date") the remainder of that
grandchild's share held in trust at the Division Date shall be divided as follows:
(i)
equally among such grandchild's siblings who are grandchildren of mine and who are alive at
the Division Date;
(ii)
but if no such siblings are alive at the
Division Date, then equally among my other children alive at the Division Date; however, if
any child of mine is not alive at the Division Date but leaves children who are alive at the
Division Date (the "Living Children"), the share to which such deceased child would have
been entitled if alive at the Division Date shall be divided equally among such deceased
child's Living Children.
Family Demise
(f)
Should I die leaving no Spouse, children or grandchildren surviving me, or if I leave children or
grandchildren or both who survive me but all of whom die before their interest in my estate becomes
absolutely vested, (herein called the "Final Distribution Date") to divide my estate, or the amount then
remaining, as follows:
(i)
one half to my parents in equal shares or to the survivor of them alive at the Final Distribution
Date, but should both my parents not be alive at the Final Distribution Date, then to my siblings
alive at the Final Distribution Date in equal shares with no representation to be admitted; and
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(ii)
one half to my Spouse's parents in equal
shares or to the survivor of them, but should both my Spouse's parents not be alive at the
Final Distribution Date, then to my Spouse's siblings alive at the Final Distribution Date, in
equal shares with no representation to be admitted.
IN WITNESS WHEREOF I have to this Will written upon this and the eleven (11) preceding pages of paper,
subscribed my name this 5th day of May, 1990.
SIGNED, by the Testator, JOE DOE, in our)
presence and attested by us in his presence)
and in the presence of each other.)
____________________
JOHN DOE
_____________________________
Witness - Signature
_____________________________
Witness - Signature
_____________________________
Witness - Print Name
_____________________________
Witness - Print Name
_____________________________
Address
_____________________________
Address
_____________________________
Occupation
_____________________________
Occupation
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