You Shall not Pass!

When a Will is drafted many people become confused about the meaning of the word shall. As a word shall is ambiguous as it can indicate the future

“Tomorrow we shall go on a picnic”

or the imperative “You shall not pass!”

Nearly every jurisdiction has held that the word “shall” is confusing because it can also mean “may, will or must.”

In Blacks Law Dictionary Shall is defined broadly

Shall, vb. (bef. 12c) 1. Has a duty to; more broadly, is required to “the requester shall send notice” “notice shall be sent”. This is the mandatory sense that drafters typically intend and that courts typically uphold. 2. Should (as often interpreted by courts) “all claimants shall request mediation”. 3. May “no person shall enter the building without first signing the roster”. When a negative word such as not or no precedes shall (as in the example in angled bracket), the word shall often means may. What is being negated is permission, not a requirement. 4. Will (as a future tense verb) “the corporation shall then have a period of 30 days to object”. 5. Is entitled to “the secretary shall be reimbursed for all expenses”.

When drafting a Will or legislation, the inconsistent nature of the word shall has been the basis for litigation. In fact there have been many who argue that the time has come to replace shall with a “clearer word” such as must, will, is, may or the phrase is entitled to.”

In New South Wales legislation covers the Meaning of may and shall

(1) In any Act or instrument, the word “may”, if used to confer a power, indicates that the power may be exercised or not, at discretion.

(2) In any Act or instrument, the word “shall”, if used to impose a duty, indicates that the duty must be performed.

Precision in language particularly when drafting a Will is very important.

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