Tuesday, February 14, 2006

Update: Using "I" in estate-planning documents

Regarding the use of "I" in drafting (specifically, estate-planning documents), traditionally "I" has been used in wills and powers of attorney (durable, health care, financial, and the like), but third-person singular has been used in trust agreements and declarations of trust: settlor or grantor.

I've worked for a few trusts and estates lawyers who scoffed at the use of "I" in trusts. But I've seen others using "I" in their trusts. I never had the backbone to second-guess my skeptical superiors. Any thoughts?

Scoff not.

I assume that for both the wills and the trusts, the client is a person, not an entity. In other words, the settlor or grantor or testator is an individual human being.

In these situations, estate-planning drafters should feel free to use "I" for the person who is acting in the document. That's my opinion. Here's why:
  • If the use of "I" is justified in place of testator, then why not in place of settlor and grantor? I can't think of a rational reason, but I can think of a nonrational one: tradition. It's always been done that way. I have now confirmed this tradition with a nationally known expert on estate planning.

    But unless there is another reason to support the practice of avoiding "I" in trusts, tradition would not be enough for me.

  • If testators, settlors, and grantors are actually going to read the document--and they should--then the use of "I" will make the text more readable, more immediate, and more human. I'm always for that.

  • There is a trend away from -or and -ee words such as grantor/grantee. See Garner's Dictionary of Modern Legal Usage at 305.

The nationally known expert on estate planning also said that because the testator can never be a beneficiary of the will, "I" is fine for wills. But because settlor CAN be a beneficiary of the trust, the use of "settlor" in trusts can help avoid confusion.

It is not clear to me what confusion might result, but I'm just a legal-writing guy, not an estate-planning lawyer.

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