A Not-So-Brief Guide for Those Who Prefer Their Legal Documents Without a Side of Headache

[Ahem, adjusting my bow tie and putting on my most serious lawyer face]

Bryan Garner, the esteemed editor of Black's Law Dictionary and crusader against incomprehensible legal writing, has long waged a valiant battle against the scourge of legalese in documents such as wills and trusts. As someone who has spent countless hours deciphering such documents myself, I present to you this expanded examination of the topic, complete with enough examples to make even the most verbose attorney blush.

The Great Divide: Plain English vs. Legalese

Plain English legal documents are written for actual humans with normal reading comprehension, while traditional legalese appears to have been crafted specifically to make readers question their sanity and lawyers' hourly rates. One serves the client; the other serves tradition and, perhaps, the lawyer's ego.

The Problem of Length and Complexity in Trusts: Or, How to Kill Too Many Trees

Trusts, those beloved creatures of estate planning, have developed a concerning obesity problem over the years. What could reasonably be expressed in 10-15 pages often balloons to 50, 60, or even 100+ pages of dense, impenetrable prose. This documentary evidence of verbosity doesn't just waste paper—it creates genuine confusion for trustees who must administer these documents and beneficiaries who must live with their consequences.

By employing plain English, we can put these documents on a much-needed linguistic diet while preserving their legal effectiveness. After all, a trust document should be a helpful guide, not a weapon of mass confusion.

The Persistence of Outdated Language: A Love Affair With Archaism That Just Won't Die

While some forward-thinking lawyers have embraced plain English with the enthusiasm of a convert finding religion, others cling to outdated language with the tenacity of a barnacle on a shipwreck. These practitioners seem to believe that a legal document isn't legitimate unless it's liberally sprinkled with "said," "heretobefore," "aforementioned," "wherefore," "hereinafter," and enough "wherefores" to make Shakespeare jealous.

This attachment to legalese often stems less from legal necessity and more from a combination of:

• The fear that a plainly written document might not be taken seriously
• The comfort of tradition ("This is how we've always done it!")
• The deep-seated worry that clients might actually understand what they're signing
• A secret desire to justify those three painful years of law school

Examples of the Contrast:
Translating Legalese to Human

Example 1: The Basic Bequest

Traditional Legalese:

"I hereby give, devise, and bequeath all of my property, real, personal, and mixed, of whatsoever kind and wheresoever situated, of which I may die seized and possessed, or to which I may be entitled at the time of my death, to my wife, Jane Smith, if she shall survive me."

Plain English:

"I leave all my property to my wife, Jane Smith, if she survives me."

Example 2: Income and Principal

Traditional Legalese:

"The Trustee shall accumulate, add, and incorporate the unexpended portion or the entirety, as the case may be, of the net income to the principal from whence it came, in accordance with the provisions hereinbefore contained."

Plain English: "The Trustee shall add any unused income to the principal."

Example 3: Trustee Discretion

Traditional Legalese:

"Said Trustee shall distribute to said beneficiary such amounts from said trust as said Trustee shall, in said Trustee's sole and absolute discretion, deem necessary for the health, education, maintenance, and support of said beneficiary, heretobefore referred to as the recipient of said trustee's benevolence."

Plain English: "The Trustee may distribute to the beneficiary whatever amounts the Trustee decides are necessary for the beneficiary's health, education, maintenance, and support."

Example 4: Powers of Appointment

Traditional Legalese:

"The power of appointment hereinbefore granted to the aforesaid beneficiary shall be exercisable by the said beneficiary by a written instrument executed by said beneficiary during said beneficiary's lifetime, or by a provision in said beneficiary's Last Will and Testament, which specifically refers to this power of appointment."

Plain English:

"The beneficiary may exercise this power of appointment either in a written document during their lifetime or in their will, as long as they specifically reference this power."

Example 5: Successor Trustee

Traditional Legalese:

"In the event that the hereinabove named Trustee shall for any reason fail or cease to serve as Trustee hereunder, then and in such event, I do hereby nominate, constitute, and appoint as Successor Trustee hereunder my brother, John Jones, to serve without bond or security of any kind for the faithful performance of his duties as Successor Trustee."

Plain English:

"If the Trustee cannot or does not serve, I appoint my brother, John Jones, as Successor Trustee. He need not post a bond."

Example 6: Simultaneous Death

Traditional Legalese:

"In the event that my spouse and I shall die under such circumstances that there is not sufficient evidence to determine the order of our deaths, then it shall be presumed for all purposes of this, my Last Will and Testament, that my said spouse predeceased me, any provision of law to the contrary notwithstanding."

Plain English:

"If my spouse and I die at the same time or under circumstances where it's impossible to tell who died first, this will shall be interpreted as if my spouse died before me."

Example 7: Tax Clauses

Traditional Legalese:

"Notwithstanding anything hereinbefore or hereinafter set forth to the contrary, the Trustee shall have no power, authority, or discretion with respect to the trust estate, the exercise or non-exercise of which would cause any portion of the trust corpus to be included in the gross estate of any beneficiary for federal estate tax purposes."

Plain English:

"The Trustee may not take any action that would cause trust assets to be taxed as part of a beneficiary's estate."

Example 8: Spendthrift Provisions

Traditional Legalese:

"No beneficiary shall have the power to pledge, assign, mortgage, sell, or in any manner transfer or hypothecate any interest which such beneficiary may have or may expect to have in any income or principal of this trust, nor shall such interest of any beneficiary be liable or subject in any manner while in the possession of the Trustee for the debts, contracts, liabilities, engagements, obligations, or torts of such beneficiary."

Plain English: "No beneficiary may sell, give away, or use as collateral their interest in this trust. Creditors cannot reach trust assets to satisfy a beneficiary's debts."

Benefits of Plain English: Why Simplicity Isn't Just for Non-Lawyers

According to Garner (who, I should note, has been tilting at this particular windmill for decades with the determination of a legal Don Quixote), plain English legal documents offer numerous advantages:
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• They're actually comprehensible to the clients who pay for them
• They reduce ambiguities that can lead to family feuds and costly litigation
• They can be dramatically shorter while maintaining legal effect
• They result in higher client satisfaction (happy clients = more clients!)
• They're less likely to contain contradictions hidden in verbal undergrowth
• They make the lawyer look helpful rather than deliberately obscure
• They're less likely to be misinterpreted by courts
• They force lawyers to think clearly (a sometimes novel experience)

Garner has maintained, with the patience of a saint explaining arithmetic to a stubborn child, that legalese doesn't make documents more legally sound—it often makes them less clear and more prone to misinterpretation.

Conclusion: The Plain Truth About Plain Language

Plain English in legal writing isn't about dumbing down complex concepts; it's about expressing them with clarity and precision. It doesn't sacrifice accuracy for simplicity but achieves both simultaneously. This approach makes these crucial documents more accessible to the people they're designed to serve while maintaining their legal effectiveness.

After all, as Garner himself might quip, the goal of a will or trust isn't to impress other lawyers—it's to ensure your wishes are carried out after you're gone. And you can't supervise the implementation if you're, well, dead. So perhaps it's best to write clearly the first time around.

[Removes bow tie, exhales deeply, and returns to normal font size]