In this week’s blog I’m going to try to do the impossible; make syntax and legal drafting interesting.

Why?

One comma can be the difference between life and death.
It’s the difference between:

Let’s eat Grandma!
and
Let’s eat, Grandma!

Legalese, not so easy

In the context of an estate, how do you interpret the following?

All of the residue and remainder of my property I give and devise in equal shares to Albert Wilson of Toronto, Canada, son of my late husband’s niece Jean Wilson; The Little Sisters of the Poor of Cleveland, Ohio and Our Lady of Peace Church of Cleveland, Ohio.

Marsh v. Wilson (6 Ohio Misc. 167 (Ohio Misc. 1966))

Do you read it as each of the three gets 1/3 of the residue? Or that Albert gets half?

This is just one example of a comma fundamentally changing the outcome of an agreement. In the commercial world, there are plenty of famous cases where commas cost companies millions of dollars.

In the Marsh case, the judge looked into what the testator’s intention must have been and decided that the semicolon should have been a comma. This resulted in the estate being divided into three equal shares. But why should a court have to look at the context to try to determine what a testator was intending to do? Ideally, the will would have been very clear in what the testator wanted to happen.

A lot of us read contracts, wills and other governing documents all day. That doesn’t mean we have to write like lawyers from 100 years ago.

Pursuant to the provisions for drafting hereinafter appearing, I propose we all witnesseth the potential for misunderstanding experienced by muggles (non-legally trained individuals) and forthwith comply with the same.

In other words, as Ralph Wiggum once said: “Me fail English? That’s unpossible”

When you deal with vulnerable individuals like many of us do, it’s valuable to take the time to explain complicated concepts in plain English. But why not take things a step further and draft governing documents in language that is easy to read and understand?

So you’ve written a fool-proof, easy-to-understand agreement. It’s definitely gonna get read right?

Non est factum 

I almost made that the title of my post, but didn’t want to take the chance that you would completely unsubscribe from the blog

Non est factum is latin for “it is not [my] deed”. It is a legal defence used by someone who has been misled into signing a document which is fundamentally different from what he or she intended to sign.

A recent example where this came up in the context of a Power of Attorney was Servello v. Servello. In this case an elderly Italian mother with limited English language skills thought she was signing power of attorney documents to her son. What she was actually signing was a transfer of the title to her property into her son’s name. Mama mia.

Non est factum is rarely successful, because when someone says “I didn’t know what I was signing”, you kind of don’t feel sorry for them. But in this case, the court decided that the property transfer was void.

On a related note, and to close things off, I wanted to share some recent news from Ontario’s highest court. In Hilson v. 1336365 Alberta Ltd. 2019 ONCA 653, Justice David Paciocco, signed the judgment from the panel of judges with “I agree”. The problem is, he wasn’t one of the judges that heard the case.