Fancy Legal Language Creates Confusion

Posted on: Tuesday, October 24th, 2017

The words lawyers use when drafting wills and trusts should be clear.  A recent Court of Appeals case shows the problems that arise when lawyers use flowery language.

In the case of Eugenie Dietrich (Court of Appeals Case 332751, 10/17/17), Mom dies leaving a Will that provides for her estate to go to her two sons “in equal shares, share and share alike.”  One son predeceased Mom leaving children of his own.  The surviving son claimed that this language meant he gets it all.  The children of the deceased child disagreed.

The decision of the trial court and the court of appeals hinged on what to make of the words “share and share alike.”  Does it mean that Mom only wanted her sons to get her estate, and if one of them died before she did, that the surviving son would get it all?  Or was her intent that each would receive half the estate, with the share of any deceased child going to that child’s descendants?  The trial court and the court of appeals both agreed that the children of the deceased child would receive the share of their deceased parent.  Michigan law strongly favors this result.

However, all of this would have been avoided had the attorney who drafted Mom’s will simply stated, in clear language, what her intentions were if one of her children died before she did.  Using the archaic legal phrase “share and share alike” created litigation that did not need to exist.

This case is another reminder that drafting estate planning documents requires an understanding of when to use precise legal “terms of art” and when to avoid using legal phrases that only give rise to confusion.