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Sunday, September 09, 2018

Avoiding Drafting Errors in Estate Planning Documents

As a member of a law firm with a substantial practice in estate and trust litigation, I have the opportunity to see numerous cases of poor drafting that end up in dispute or litigation. In the best of circumstances, it can be difficult to draft a 20-30 page trust or other instrument 100% free of all drafting errors. But there are many circumstances that are more likely to create, or not catch, drafting errors.

A recent article by L. Paul Hood, Jr. addresses many of these circumstances, and provides suggestions to minimize errors. I highly recommend it. Below is a list of several of these circumstances and/or suggestions, as paraphrased and commented on by me, but you should read the whole article:

a. Do your best to avoid the need to rush. Easier said than done when under client pressure or senior attorney pressure, but one source of time pressure is within your control: procrastination. Also, resist pressure to draft to immediately implement a settlement solution or with a client waiting in your office for a revision to sign. I tell our litigators when they are drafting a complex settlement agreement at the end of a day and night of mediation that what they are trying to do in a few hours would probably take several days of drafting, review, and rewriting  to properly prepare and that the risk of drafting (or analysis) errors is obviously higher in those circumstances.

b. Take good notes at your client meetings, and review drafts with the client. For clients with little interest in reading your legalese, a diagram illustrating key dispositive provisions goes a long way to make sure everyone is on the same page. Doing the diagram will also reveal to you, the draftsperson, contingencies, circumstances and planning alternatives you may not have considered. Of course, this can increase your time investment in the project and thus your or client costs, but it sure beats a malpractice action.

c. Confirm that procedures included in the document can be reasonably implemented in the real world, such as how to prove a trustee has become disabled or incapacitated.

d. Be especially vigilant when cutting and pasting provisions from one document to another.

e. Review the execution version for blanks, and make sure the printed version is the latest draft on your computer.

f. Review other documents that will affect the drafted document or will be affected by it, to assure they are consistent with each other.

My favorite is to set aside a document and come back to it for final review the next day with fresh eyes. I can’t tell you how many times I see things on such a fresh read through that were not obvious when drafting.

Hood, Jr., L. Paul, How to Avoid Common Sources of Drafting Errors, Estate Planning Journal (WG&L), August 2018

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