Who Gets the Grow Lamps?

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Thoughts on Plain English and Terms of Art

In recent years, lawyers – or at least legal academics – have pushed the concept that lawyers need to write using “plain English.” The movement is presumably designed to make the legal world more accessible to laypersons. Like many concepts that seem admirable on their face, I have often been troubled by a sense that this movement fails to acknowledge that what we do requires precise language that simply can’t be “dumbed down” for the sake of making our profession seem friendlier.

This recent unpublished Court of Appeals opinion (click here) arises out of a will that leaves the “residence” and “property” to A and the residue divided equally between A and B. The problem is that the decedent owned a house, connected to a farm.  And the decedent had an entrepreneurial bent.  Specifically, he had a business that made trailers, he had a business that did landscaping, and on that farm he had some weed (E I E I O) – that is, a business that grew medical marijuana.  Each of these businesses had assets related to those businesses, all located on the property at issue.

So problems arose in interpreting the document. Residence is a clear term of art, meaning the place one resided.  But did it include the barn and outhouses as well?  How many acres went with the house?  And property is an even more comprehensive term of art.  Did the gift of property mean the personal property in the house? The farmland? The business assets?

Residence and Property are important legal terms of art. They are used here as if the drafting attorney is unaware of their precise legal meaning – that is, they are used as if the common meaning would have legal effect.

While most of us can probably agree that archaic legal words like “whereby” and “heretofore” may be unnecessary, the precise use of language, and an awareness of the legal meaning of legal terms remains critical to good legal work.

The Court of Appeals correctly holds that the will is ambiguous, and hence a trial is needed to introduce extrinsic evidence so that the trial court can try and determine what the decedent thought those words meant when the will was prepared; causing litigation wholly unnecessary had the drafting attorney simply been more precise.

The case is a good reminder that “plain English” is often a recipe for disaster in legal documents, and a good read for attorneys – particularly younger lawyers – who are looking to develop their skills in drafting estate planning documents – and any legal documents for that matter.