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Friday, September 27, 2019

“Impenetrable (…) Gobbledegook”: Knowing and Approving of the Contents of Your Will

Have you ever signed your name to a document without fully understanding what it says? Judging by the number of people who tell me they have in the past signed wills without really understanding all of it, I would say the signing of unclear documents is not that unusual.

Sometimes the lack of clarity arises from the language of the document. There's a reason we have the word "legalese". I recently came upon a discussion of a case (not a particularly new case, but still very interesting) that talks about the effect of having language so "impenetrable" that it becomes nothing more than gobbledygook. This comment was made by a judge in reference to a will.

In this case, the court said that even though the will was read over to the testator, it was unlikely that the testator would have understood it without further explanation. Click here to read a blog post by the Vancouver law firm of Alexander Holburn Beaudin & Lang that discusses the case in more detail. Judge for yourself whether you'd understand that wording without a lawyer!

Part of my approach to drafting is that wills need to be understood by people who are not judges and lawyers. Testators, executors, and beneficiaries all need to work with that document so it needs to be accessible. I'm not talking about dumbing it down because intelligence is not the issue. The issues are run-on sentences, Latin words, and legal jargon. Accuracy is the prime goal, with readability right behind it.

Personal drafting style varies from lawyer to lawyer. Some like more formality than others. Some are more comfortable with Latin terms than others. Some are just good at figuring out better ways to say things. Just make sure that the will you end up with makes complete sense to you, and that you can read and understand it without your lawyer in the room.


3 comments:

  1. Lynne,
    People should be warned to stay away from this 'questionable' lawyer, David Franks from England, IMO. Does he charge by the word in addition to the cost of the 'will'? (David is a practising solicitor and a partner in a large City firm).
    I would be curious to see other 'wills' that Mr. Franks has drawn up. Are they full of gobbledegook or just his mother's? I wonder if he billed his mother for drawing up that 1994 'will'? If so, the Judge should have ordered that he refund the Estate. Does he draw up 'wills' like this to impress people as to how smart he is?
    Too bad the Judge did not fine him. If an Executor had pulled something like this, there is a good chance he/she would be fined and or pay some costs.
    It is my feeling (observation) that Judge's (who were lawyer's) are much too easy on lawyer's who push the envelope. They are however on occasion a bit harsh re the client's of lawyer's. I speak from experience.
    Mr. David Franks 'The Gobbledegook Lawyer' from England
    I know too many ***** lawyers. Not by choice.
    Webeye

    ReplyDelete
    Replies
    1. The treatment of a lawyer who goes off the rails depends on a lot of factors. I think the judge handling the case may, as you say, have personal feelings about the situation. But you need to realize that a lot of people in our profession are pretty sick of being lumped in with the crooks and sharks. We are pleased when a lawyer who is ripping off clients or stealing money or being sleazy is caught and stopped. We don't need people like that in our profession because they make us all look bad.

      Also, a judge who hears any matter, whether it's a trial, appeal, or any hearing, is bound by statute and precedent. If, for example, the minimum punishment for someone committing murder is a jail sentence, the judge is not allowed to give that convicted person a conditional discharge. So there is always a range of what's available for a judge to impose on someone. Other factors would be whether this is a first offence, how badly the offence impacted the victim, whether financial restitution had been made, etc.

      Yep, Mr. Franks is a piece of work. I don't suppose making the papers with this will is going to earn him any new clients.

      Lynne

      Delete
  2. Lynne.. More "Gobbledegook"
    Dilbert:Sunday -September 29, 2019 -Boss Recommends Blockchain
    https://assets.amuniversal.com/773172509f890137b488005056a9545d

    ReplyDelete

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