The forms in use in a firm should be easy to edit, and it should be easy to copy and paste language from one document to another, so lawyers responsible for creating or maintaining will and trust (and other estate planning) forms should try to make the pieces of the wills and trusts as interchangeable as possible. Making the language, structure, and format of documents consistent will make it easier for lawyers, paralegals, and secretaries (or a computerized drafting system) to assemble different pieces into a coherent document.
Here are some suggestions for easier document drafting:
- Write revocable and irrevocable trusts in the first person (the settlor or grantor being “I”) rather than using third-person references to “the settlor” or “the grantor.” In that way, the same language can be used for similar provisions of both wills and trusts, such as trusts for the children of the settlor/testator.
- Adopt standard document formatting for all forms of wills, trusts, and other estate planning forms. Maintaining similar styles for paragraph numbering, paragraph headers, page numbering, acknowledgments, jurats, signature lines, and other mechanical parts of the document will greatly simplify the design and the maintenance of forms, as well as cutting-and-pasting between forms.
- Eliminate differences in number and gender whenever possible. Consider these possible changes.
- Use “executors” (or “trustees” or “agents”) regardless of whether two fiduciaries are named to serve together initially, or only one fiduciary is named initially and others are named as successors. As long as possible successors exist, and the provisions of the document apply to both the initial appointees and the successors, references to “the executors” or “the trustees” can refer to all of the fiduciaries who might serve, will be grammatically and semantically correct, and will greatly simplify the choices in drafting and modifying the documents for different factual situations. For example, by using “executors” consistently, you can regularly use “they” and “their,” as well as plural forms of verbs, without needing to make changes throughout a document based on the number of fiduciaries initially named.
- Use gender-neutral terms, such as “child” or beneficiary,” to refer to the beneficiaries of a trust, instead of “son” or “daughter.” (However, do not use “spouse” instead of “husband” or “wife.”) (Question: What term should be used to apply to the spouse when the spouses are the same sex? Should the will of a man who is married to a man refer to the spouse as a “husband,” “partner,” or “spouse”?)
- Eliminate personal pronouns wherever possible, substituting possessive forms when needed. For example, if trust provisions always refer to “the child” and “the child’s” (instead of “his or her”), there is no need to worry about what to do when the client has four daughters and no sons. Similarly, use possessives to refer to the spouse, instead of “his or her.” If done correctly, the substitution of “husband” or “wife” for “spouse” will also change “my spouse’s income” to “my wife’s income” or “my husband’s income.”
- Use “testator” and “executor” to refer to both men and women. The Latin feminine forms (“testatrix” and “executrix”) are archaic and rarely are seen outside of clumsy documents written by lawyers who are scared to change anything found in a form book. Statutes are almost always gender-neutral, and even judges rarely use the feminine Latin forms.