Will Drafting: Trust Funds And Avoiding Family Disputes

Recent years have seen fewer people making wills. Recent years have also seen a noticeable increase in cases involving people who have died with invalid wills, or with no will.

In both cases, the result is property, possessions and money that are tied up in litigation often for years. A further result is pain and further grief for the families concerned, and family and legal disputes. If only to avoid such pain, it is important to make a will.

Wills, probate and related legal matters fall under equity, well known in the legal world for being a complicated area of law. Wills and related documents need to follow the right formats, and to have the correct provisions under law. The rules of equity in some cases even dictate the exact words that need to be used.

Equity has its origins in Norman and Mediaeval England. As such, over the centuries it has evolved into a very complex, ponderous, and above all, formal area of law. The formalities, formula and conventions of equity must be strictly kept to to ensure that your will is valid. Despite the complexities, the rules of equity are there to protect you: those archaic rules ensure that your property is classed on to whoever you decide should inherit, and in what form.

With that in mind, when considering a will and treatment, it is vital to consult a lawyer. Even researching the principles of equity and the basics of will writing, and devising your own will are no substitute for getting an expert to write such an important document for you. A layman can easily make so many mistakes, or be unaware of so many legal matters, that their will will in most cases be declared invalid, or result in upset as provisions cannot be honoured. A lawyer will be able to ensure that your will is drafted in line with current legislation and rules, allows all bequests to be honoured, and above all remains valid.

When considering who to leave what property to, a lawyer will be able to advised you that some things you may want to do might not be possible at law, for whatever reason. However, in most cases, your lawyer will be able to come up with an alternative solution or suggestion.

As has been mentioned, equity has a ritual and language seemingly all of its own. All of which, however, makes perfect sense. One example is that the vast majority of wills will start with the phrase ‘I hereby revoke all other wills and testaments.’ Although cumbersome, what that means is that that will is the latest and most current expression of your plans for your possessions and property. That in itself is a fact worth remembering; that will will remain in place, and legally enforcible, until you draft and sign a new will.

Further, the wording used is quite important, with some words having a slightly different meaning to the equity lawyer and will drafter. Take, for example, a ‘gift.’ To the layman, that is often another term for a present. To the equity lawyer, a gift is property that passes (or will pass) to another without anything expected in return, and often with all the rights of ownership. Much property and possessions can be passed to another in a will, without the rights of ownership, or with conditions attached. It is therefore important to choose the right word – and the right manner in which to bequeath your property.

Once again, that merely serves to highlight the importance of having your will written by a professional expert. Although expensive, although time consuming in hours spent in consultations – it is a small price for peace of mind, for yourself and for your family.

Indeed, whilst consulting with a lawyer, they will be able to advised you as to several things you might be able to do with your possessions and property, for the benefit of your family – often things you were unaware of. A good example is a trust fund. Trust funds are popularly perceived as vast sums of money inherited by the rich. That is, in reality, not the case. Under equity, a trust can be made of most property, and can be structured in a variety of different ways. For example, the family home, in some cases, can be made into a trust under equity,and passed on as such. Money or possessions can be willed to various people in complete anonymity, if you so desire, or if it is necessary.

Those examples just go to show the mysterious ways of equity, and the various ways money and property can be passed on in your will. Without a will though – it is hard for your family and friends to inherit anything as you desire. That is why it is so important to consider such matters, and to consult a lawyer regarding making a will. Not only will that bring peace of mid to you – but it will make things much easier, and less painful for your family later on.

Legal Writing – For Lawyers And The Layman

When reading a legal document, or studying something prepared by your lawyer, the layman is often left bewildered and in need of gentle assistance to understand what is before them. That is due to that vital legal skill, for lawyers and paralegals alike: legal drafting and writing.

Even a simple agreement or contract, or a simple argument to a court, can be (seemingly) rendered overly complicated when put in formal legal document or court submission. It is that legal writing, though, that is absolutely invaluable to the legal practitioner – although admittedly often puzzling and overly formal to the layman.

Learning how to draft submissions for a case, lodge an appeal, write a proper Judicial Review, write the various parts of a bundle for court, and similar is very important in the legal world. In many cases, the court, tribunal or review board will see those written submissions and papers first, prior to any interaction with the lawyers, or any verbal arguments. Consequently, many will form first impressions of the case, and the merits of the arguments of each side, from those written submissions. Effectively, those written arguments form a written first impression.

Further to that, many hearings are settled and decided on paper submissions, as opposed to oral arguments in a hearing. Increasingly, especially in some civil areas of law, such paper hearings are becoming more commonplace. That trend is only set to continue with reforms such as court closures, and increasing efforts to streamline court and legal services.

Of course, no judge or tribunal or panel would ever be so unprofessional as to bias or base their verdict and opinions upon paper submissions if there was a full hearing upcoming. No judge or panel would be so unprofessional as to be swayed by the nature of the submissions and how the papers are drafted and written, and appear. A judge or panel will only ever be swayed by the merits of the legal arguments advanced. However, the same human nature is present in everyone. An organised, well presented bundle that is helpful to the court in its appearance and layout will doubtless be received and perceived kindly by a judge dealing with a great many such bundles. A poorly drafted, rambling and confused appeal submission will probably find the appeals tribunal not so favourably inclined. That is something for the lawyer or paralegal to bear in mind.

For anyone involved in drafting or writing legal documents, there are several key matters that need to be considered and addressed.

Firstly, know the format. Each type of legal document, be it a letter, submissions to a court, application for bail, application for Judicial Review, etc has their own format, and style. It is necessary to keep to that (often very strict) format. With that in mind, know and use the correct legal terms and phrases. Each area of law comes with its own unique and archaic collection of terms, set phrases, expressions and written conventions which are used freely. Once again, it is vital to use those terms in that particular document. A will had to start somewhere with the formal phrase “I hereby revoke all other wills and testaments,” or similar. An asylum appeal will usually use terms such as “actors of protection”, “the Convention” (for the 1951 UN Convention on Refugees), and “internally displaced people” very regularly. All that is fairly obvious; but there are many cases where such simple matters of legal drafting have not been adhered to. Needless to say, that does not endear the reader to the writer or the lawyers.

Whilst drafting, it is necessary to refer to legal cases, precedents, reports, news articles or statutes. The good legal writer needs to demonstrate a certain balancing act here. Sometimes, it is necessary to quite directly. At other times, it is better to summarised of paraphrase. Knowing when to do either, for best effect with the legal argument advanced, is a skill that is developed over time and in accordance with the writer’s own style. No one likes a submission or bundle that is essentially pages and pages of quotes. Similarly, no one likes submissions which do not directly refer to the source material. It is a balancing act.

Above all, with any legal document – formality is key. The rules of legal writing, the archaic conventions of the law, and the fact that it is a legal document, leave no misunderstanding that the writing and style should be formal. Clear and concise without waffle or anything extraneous – but also very formal, and politely phrased.

Legal documents and submissions need to be straight to the point, and to outline a certain line to argument, often very complex and intricate. Whilst cutting out anything superfluous, at law it is always the detail which is so important. With that in mind, though, the document needs to be formal in style and appearance for the court

It is because of that mixture of detail, argument, and inherent formality that legal drafters and writers end up with a document or court submissions which to the layman are incomprehensible. To the layman, the formality is a barrier to understanding. To the layman, it can be bard to follow the line of argument due to the nature of the presentation of the various submissions.

That is why legal documents and applications are often such a mystery to the layman, or the individual seeking justice, and need to be patiently explained by the very lawyer who took such care and time in drafting it. That is also why lawyers and paralegals have a reputation regarding playing with words, and excessive formality.