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Plain Language Column

Plain English Subcommittee on Estate Planning

By George H. Hathaway

The goal of the Subcommittee on Estate Planning is to promote plain English in estate-planning documents written in the practice of law.1 To do this, the subcommittee finds and gives Clarity Awards to clearly written durable powers of attorney, wills, and trusts. See Figure 1 for a list of Clarity Awards that we have previously given, and a Want List for future awards. We want to bridge the gap between the educational materials on plain English at Wayne State and Cooley Law Schools and the durable powers of attorney, wills, and trusts that are written in the practice of law. We think we can do it with the following approach.

Michigan Activities

Estate-planning documents are private documents. They are not public documents like laws, lawsuit papers, and many types of contracts and real-estate documents. Furthermore, there is often a long time delay from when estate-planning documents are written to when they are used. Therefore, there is no practical way that we can sample the clarity of actual durable powers of attorney, wills, and trusts. But we can sample the next best thing_estate-planning forms and formbooks. They are written by estate-planning lawyers and contain general forms for the various types of estate-planning documents. For example, the Estate Planning Forms Book of Comerica Bank contains forms for durable powers of attorney, simple wills, pourover wills, self-trustee trust, bank-trustee trust, joint trust, irrevocable life-insurance trust, and trust dispositive alternatives. Practitioners start with the forms and (a) fill in the blanks with specific names, dates, and dollars and (b) make changes to the form language whenever needed.

We want to make a list of the 10 most widely used estate-planning forms and formbooks in Michigan. Then we want to publicize and promote the forms that are written in plain English. In 1995 we gave a Clarity Award to Comerica Bank for its plain-English durable power of attorney form (Figure 2) and will form (Figure 3). These forms prove that estate-planning forms can be written in plain English. If all forms and formbooks are written in plain English, then there is a good possibility that more and more estate-planning documents that are written in the practice of law will be in plain English.

Other States and Countries

Much of the activity in the plain-English movement in the last 20 years has been in educational material written by plain-English advocates. This activity is important, but we are interested in the practical result of this educational material_legal documents written in the practice of law. Therefore, in our previous articles about our other four subcommittees, we identified sample populations with which we could compare the clarity of legal documents. We identified the two largest states and English speaking provinces in the U.S., Australia, and Canada. Now we want to identify organized groups of plain-English advocates in these states and provinces who write and promote plain-English documents in the practice of law.

There are no organized groups of plain-English advocates in New York, California, or Ontario, but there are organized groups in British Columbia, New South Wales, and Victoria. In Vancouver, British Columbia, there is a group of legal-writing consultants called The Precedents Group Consultants, which publishes Rapport, a newsletter about plain language, edited by Cheryl Stephens. In Sydney, New South Wales, there are the law firms of Mallesons Stephen Jaques (Edward Kerr and Robert Eagleson), and Phillips Fox (Christopher Balmford) that actively promote plain English.2 And in Melbourne, Victoria, there are also offices of Mallesons Stephen Jaques and Phillips Fox. We will ask these groups to send us the clearest written durable power of attorney form, will form, and trust form that they can find in their state or province. We can then compare the clarity of forms available in Michigan with the clarity of forms available in these states and provinces.

Responsibility

The success of the plain-English movement depends on two types of responsibilities_the responsibility for preparing educational material on plain English, and the responsibility for writing legal documents in plain English. Legal-writing teachers are responsible for preparing educational material on plain English such as textbooks and articles. It's their job, and they do it well. This material includes general guidelines for preparing clearly written documents, and critiques of poorly written legal documents. As mentioned earlier, in the last 20 years of the plain-English movement, most of the activity in the movement has consisted of preparing educational material. This material is now readily available for practicing lawyers to use in writing legal documents in plain English without legalese.

Practicing lawyers are responsible for preparing clearly written legal documents. But it's a responsibility that many practicing lawyers refuse to accept. That is why we formed the Plain English Committee_to encourage practicing lawyers to accept the responsibility to write legal documents in plain English.

In our Clarity Award search in estate-planning documents, we are looking for practicing lawyers who are carrying out their responsibilities by preparing clearly written forms for durable powers of attorney, wills, and trusts.

Footnotes

1. Plain English in Wills and Trusts, 73 Mich B J 1086 (October 1994); Estate Planning Documents Clients Can Understand, 67 Mich B J 54 (January 1988); Use of Plain English in Drafting Wills and Trusts, 63 Mich B J 612 (July 1984).

2. Eagleson, What Lawyers Need to Know About Plain Language, 73 Mich B J 44 (January 1994); Kerr, Using Plain Language in Law Firms, 73 Mich B J 48 (January 1994); Duckworth and Balmford, Convincing Business That Clarity Pays, 73 Mich B J 1314 (December 1994).

Figure 1. Clarity Awards and Want List for Estate Planning
Type of Document (Year) and Document Written By
We want to find Clarity Award documents written according to Mellinkoff, Legal Writing: Sense and Nonsense, and Wydick, Plain English for Lawyers, from the following:
1. (for property distribution) (95) Durable power of Love, Dindoffer
Durable power of attorney, attorney and will forms wills, and trusts of Comerica Bank (95) Michigan Statutory Will Bullard, Systma
2. (for health care) (95) Durable power of Benner, Cook
Durable power of attorney, attorney for health-care and living will decision-making (patient-advocate form) (95) Changes and Choices Geller
1. First Chicago NBD Bank estate planning forms book
2. Comerica Bank Estate Planning Forms Book
3. Michigan National Bank Will and Trust Forms Book
4. Old Kent Bank
5. Franklin Bank
6. Huntington Bank
7. First of America Bank
8. Republic Bancorp
9. Standard Federal
10. First Federal of Michigan
11. National Network of Estate Planning Attorneys forms manual

Figure 2. General Durable Power of Attorney
(An Excerpt)

I, ________, of ________, ________ County, Michigan, make this General Durable Power of Attorney ("Power"), and appoint ________, of ________, Michigan, as my attorney-in-fact ("Agent") with the following powers to be exercised in my name and for my benefit: 1. General Grant of Power
To do anything that I have a right or duty to do, now or in the future.
2. Real and Personal Property
To maintain, transfer, encumber, and manage any of my real property and personal property interest.
3. Motor Vehicles
To transfer the title of any of my motor vehicles.
4. Business
To collect money and manage my real and personal property, to transact business for me, to conduct any business in which I may be engaged, and to carry out or amend any agreement to which I may be a party.
5. Borrow
To borrow money and sign promissory notes that are either unsecured or secured by any of my real or personal property.
6. Debts and Expenses
To pay bills and other debts and all reasonable expenses for the management of my property and the support of myself and my dependents, including reasonable compensation for the services of my Agent and agents my Agent may employ in the management of any of my affairs.
7. Banking
To carry on all my ordinary banking business by depositing funds (by check or other negotiable paper) and withdrawing funds (by check or withdrawal slip) in and from any bank, savings and loan, or other financial institution.
8. Safe Deposit Box
To access, or to withdraw or change the contents of, any safe deposit box of which I am tenant or co-tenant.
. . . .
PlainDPA_11/30/94
Figure 3. Will of
(name)
(An Excerpt)

I, ________ of ________, ________ County, Michigan, declare this my Will, and revoke all previous Wills and codicils (amendments to Wills), if any.
Article 1 Family In this Will, "my family" means my spouse, whose name is ________, and my children, whose names are ________. The words "child," "children," and "issue" include any legally adopted person, and the person's natural or adopted descendants.
Article 2 Debts I direct my Personal Representative to pay all my legally enforceable debts, the expenses of my last illness and funeral, including the cost of a suitable monument at my grave, and all my unpaid charitable pledges even if the pledges are not enforceable obligations of my estate. My Personal Representative may pay from my estate in Michigan all or part of the cost of the administration of my estate outside Michigan.
Article 3 Taxes
A. I direct my Personal Representative to pay the following taxes out of [my estate] as soon as practicable after my death:
. . . .
PlainWill_11/30/94
(name)
(city)


"Plain Language" is a regular feature of the Michigan Bar Journal, edited by Joseph Kimble for the State Bar's Plain English Committee. The assistant editor is George Hathaway, chair of the Committee. The Committee seeks to improve the clarity of legal writing and the public opinion of lawyers by eliminating legalese. Want to contribute a plain English article? Contact Prof. Kimble at Thomas Cooley Law School, P.O. Box 13038, Lansing, MI 48901. For information about the Plain English Committee, see our website. George Hathaway is a senior real estate attorney at the Detroit Edison Company and chair of the Plain English Committee of the State Bar of Michigan.

     

 

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