Estate Planning

Plain Language Matters Even In Estate Planning

By Jennifer Sawday

Plain language? Is that even possible? And with drafting wills and trusts? Read on...

One thing that good lawyers try to do is use plain language in their writings that can be understood by the opposing party, the court and the client in any situation. That said, it is harder to incorporate plain language in estate planning, trusts and probate matters. This is because some terms and phrases in this area, while foreign to clients, have accepted meanings in this practice and have become terms of art.

One word that is often misunderstood, but comes to mind as a great example is the term "issue." Used in a will or trust when one writes and "...to his or her issue..." In this context it means the person's children, grandchildren and maybe even great-grandchildren. It is a nice open ended phrase that can be determined when the person dies as to the extent of their issue for estate planning purposes. Another confusing term is "real property." Real property means real estate or land and is different from personal property.  Review your existing estate planning documents to find other terms of art you find confusing. Ask your estate planning attorney what they mean.

It is preferred to keep the terms of art in the estate planning documents because the interpreters (the lawyers and the judges) know what these terms mean. But other documents involving your attorney should be easy to read and understand -- the fee agreement, letters,  instructions to you about your estate plan and arguments made to the court. Thus, even with utilizing terms of art, plain language is essential in any good lawyer's work.

Enter Cheryl Stephens of Building Rapport and the author of the plain language blog. She is a leader in the field of plain language communication and provides training and workshops to clients all over North America. She is making a guest appearance today in this blog post. She has a new book out, Plain Language Legal Writing, which is fun to read for lawyers and non-lawyers alike.

I had a few questions for Cheryl and here are her responses:

Question: Your work is in the area of plain language. Can you tell us about that? What?s plain language all about?

Answer: Plain language is writing, or any language, that is clear and understandable, so that it?s easy for people to get ? and use ? information that is important to a person's life.
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Question: What kind of information?

Answer: Well, think of anyplace you?ve seen legalese in your own life: contracts, regulations, waiver forms and releases, even the agreement you have to sign whenever you install software or sign up for something online.
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Question: And you?re saying those things don?t have to be written in legalese? Isn?t the law inherently complex?

Answer: There is no reason that legal language ? language regulating legal rights and duties ? has to be incomprehensible. It can be made plain enough for its intended audience.

Plain legal language is being written every day. Those who defend out-dated, poorly-written gibberish on the grounds of its complexity should be embarrassed.
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Question: You?re having a contest, aren?t you? What?s that all about?

Answer: It?s a contest to rewrite a section of the U.S. Copyright Act ? both to rewrite it as the law would look in plain English, and to write a clear explanation for the general public.
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Question: What are you trying to accomplish with this contest?

Answer: I want to show the difference between legal drafting and legal writing. One task is to redraft the legislation in plain language, and that?s a specialized skill. Not every lawyer needs to know how to do that. But the other task, to explain the law in plain language ? that?s a skill every lawyer does need.
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Question: And that?s what your new book is about?

Answer: Yes. I wanted to write a simple but complete guide for lawyers who want to make their writing clearer.
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Question: Well, I think you?ve done a great job. Can you tell us where we can learn more about the book, and about the contest?

Answer: Yes, there?s a web page for the book. PlainLanguageLegalWriting.com, and there?s a link to the contest on that page as well.

Full post as published by Estate Planning Practice Blog on July 21, 2008 (boomark / email).