Proofread that will!
There are not many guarantees in life, but this is one of them: If you proofread – properly – each and every will you create, you will substantially reduce your risk of a malpractice claim.
Proofreading well is a highly underrated, non-universal skill. However, since lawyers proofread documents on a regular basis, most have a fairly accurate awareness of their own level of mastery of this process. The weaker proofreaders among us may even suspect that proofreading ability is an exotic innate gift − like ESP, or opera singing − and that we should just resign ourselves to a certain error rate.
Don’t believe it. While some people are naturally more perceptive and detail-oriented than others, anyone can improve their accuracy by adopting a systematic approach and taking the time to apply it.
Don’t have a system? Consider the following steps as a starting point.
1. Make the time: Adopt the discipline of allocating sufficient time to the proofreading function. Your client has hired you to direct the final disposition of his assets. How highly do you think he would value your accuracy? Proofreading with care means reflecting the client’s priorities in how you spend your time.
Unless completing the will is very urgent, don’t draft the will and proofread it on the same day. Many good proofreaders find that they are more likely to identify problems when they review a document afresh after setting it aside for a day or two.
2. Be focused and undistracted: Create an environment that increases your chances of accuracy by eliminating noise and distractions. Also, reserve proofreading tasks for the time of day when your focus and attention are sharpest.
3. Use a checklist: “Structural” problems, like omitted provisions – may be easier to spot if you have a checklist against which to compare a finished will. Develop your own checklist, or find one you like. A good checklist will include a listing of all essential will provisions, and will prompt you to ask yourself questions about contingencies that can arise from the specific details of the estate and the instructions.
4. Print the will and read it on paper: Many good proofreaders claim that they proof better on paper. Doing this can also reveal technical glitches that may arise, for example, from using an electronic precedent or form. Are there provisions that appear onscreen, but are hidden from the printout for some reason? Big oops.
5. Read it aloud: Reading a written document aloud can help identify errors that the eye skips over: for example, omitted qualifiers, or double negatives.
6. Use a visual aid: When it comes to identifying substantive problems with a will, you should consider what kind of thinker you are. Not all of us solve problems by focusing on words. If you have high spatial intelligence, you may want to confirm the logic of the will by drawing a diagram: for example, a flowchart that tracks conditional gifts or remainders and gift-overs.
7. Pay attention to names: Did you know that “Jack” is a traditional nickname for a person named “John”? A testator of a certain vintage may give you instructions referencing both Jack and John… who are the same person! Confirm the spelling of names, and use names consistently throughout the document. Avoid nicknames.
Pay similar attention to company names and the names of charitable organizations. You can research official charity names on the website of the Canada Revenue Agency.
8. Check facts, not just language: There are two aspects to proofreading: substantive review and language review. You need to pay attention to both. Don’t let correcting problems with language distract you from the task of questioning the meaning of the terms you are including.
Major newspapers and magazines employ fact-checkers who research the factual basis of every statement, location, date, etc. in a story before it’s published. Practice reading like a fact-checker: notice each fact alleged, and ask yourself whether it requires investigation. With respect to a gift to a husband, does your testator mean her current husband, and are they married? Could they actually be living common-law because she never divorced her first husband?
If anything in the will seems unusual, or reverses an instruction from a former will, ask the testator to explain his reasons for the provision. Record the reasons in your file.
Finally, catastrophize, and entertain unlikely scenarios. The will is likely based on certain common assumptions: for example, that parents predecease children, married couples stay married, and valuable assets hold their value. What if these assumptions turn out to be wrong? Will there be ambiguity about who should inherit?
9. Proof against the instructions: The most important tip on this list is to confirm that the will is consistent with the client’s instructions. Proof the will against your notes, and then ensure that your client reviews it carefully prior to execution. These essential steps are skipped more often than you might think − sometimes with dire consequences.
10. Enlist a second reader: Finally, hand the will over to someone who didn’t draft it, and who is a reliable proofreader. You may be shocked to find that they will still discover errors. But you will have taken all the steps in your power to create an accurate product.
Nora Rock is corporate writer and policy analyst at LAWPRO. This article originally appeared in the June 21, 2013 edition of The Lawyers’ Weekly