Estate litigation encompasses a range of issues, with a significant portion of our practice dedicated to addressing drafting errors and ambiguities in testamentary documents. Whether it’s an application to challenge the validity of a will, an application to prove a will in solemn form, rectification of a will or simply seeking the court’s direction with respect to the advisable next steps, many of these contentious proceedings could be avoided if the testators and the solicitors assisting with drafting the wills took a more simplified approach to drafting wills.

The convoluted ways of drafting that are used by solicitors are often a result of their attempts to be unnecessarily creative in order to demonstrate the value of their services to clients. This complexity is often unnecessary, and while it leaves clients impressed by the sophistication of the language in the will, the clients often don’t fully understanding the potential implications of such convoluted language.

Here are several strategies to simplify will drafting and potentially mitigate the risk of costly litigation:

1. Bequeath specific gifts to beneficiaries
Instead of relying solely on a residual gift clause or allocating the assets of the estate to various beneficiaries based on percentages, consider specifying particular gifts to beneficiaries instead. For example, leaving a fixed sum of money to a named beneficiary can reduce ambiguity during the estate administration process and simplify the distribution of assets.

2. Simplify the Language
Will drafting is saturated with precedent language that is often archaic and unnecessarily complicated. While established case law addresses and further interprets common drafting language, opting for clearer, more straightforward language can help avoid confusion. For example, instead of using traditional terms like “issue”, “per stirpes” or “per capita”, consider specifying beneficiaries by name: “I leave asset X to my son, Bob, and asset Y to my daughter, Emily”. This drafting tip depends heavily on the assets of the estate and the family structure and is subject to the professional advice of tax and legal experts.

3. Avoid Complicated Asset Distribution Structures
Testators may wish to delay distributions or create complex distribution schemes based on their understanding of their beneficiaries’ personalities and spending habits. Although solicitors might be willing to accommodate such requests, it is prudent to consult with tax professionals or estate litigators to evaluate the viability and potential issues of these structures. Simplifying distribution by setting fixed time frames can often be more effective and reduce the risk of disputes.

4. Include a “no-contest” clause
Finally, testators can also consider adding a “no-contest” clause to their wills. Although not foolproof, “no-contest” clauses can be an effective way to deter at least some forms of challenges to the will and the testator’s wishes.

Make sure to consult an estate planning professional before implementing these suggestions, as every situation is unique and requires a tailored approach to each estate plan.

Thank you for reading,

Margarita Grup.