Drafting Matters and Sample Will Clauses
| Author | James Normington |
| Pages | 45-58 |
4 Drafting Matters and
Sample Will Clauses
... before writing his ninth symphony, Beethoven had a pretty
good idea not merely of the legal theory of music, but as to the
effect he was trying to create. No one is expecting you to produce
statements of case of symphonic excellence (hopefully they will be
somewhat shorter!), but the point still holds good. If you do not
understand what you are trying to achieve the chances of ultimate
success are slim.
Pleadings without Tears, William Rose, 2002
There is much wisdom to be gleaned from that opening quote. Drafting
and pleading are as much an art as writing a symphony or creating a
sculpture. As with any art, there is a need to understand the end point and
the context of the subject. There are times in the drafting of legal
documents when a precedent is useful, but simply replicating precedents
parrot-like, devoid of context and understanding, is to start walking on the
footpath of failure.
This chapter explores sample forms of wording that can be used in
conjunction with a practitioner’s existing writing models. These draft
clauses may be used together with other precedents, or combined with
them, to create suitable documents. Practitioners are undoubtably all too
aware of the inherent risks that drafting a will entails. The will drafter owes
both duties to the testator and to the beneficiaries of the will.1 It is
therefore particularly important not only to consider the intentions of the
testator, but also to bring them into effect in both a substantive and timely
1 White v Jones [1995] 2 AC 207 per Lord Goff at 260–290:
In the forefront stands the extraordinary fact that, if [the claimed] duty is not
recognised, the only persons who might have a valid claim (i.e. the testator and
his estate) have suffered no loss, and the only person who has suffered a loss
(i.e. the disappointed beneficiary) has no claim ... therefore ... if the solicitor
owes no duty to the intended beneficiaries, there is a lacuna in the law which
needs to be filled. This I regard as being a point of cardinal importance in the
present case.
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