Scott T. Jarboe

Washington University School of Law

The ordinary standard [for will interpretation], or “plain meaning,” is simply the meaning of the people who did not write the document.

The fallacy consists in assuming that there is or ever can be some

one real or absolute meaning. In truth, there can only be some person’s meaning; and that person, whose meaning the law is seeking, is the writer of the document . . . .’

  1. Introduction

The very appellation of a “will” document suggests that the instrument should effect that which the testator would have done; it was her “will”— her intention—to pass her personal and real property in the particular manner outlined in the testamentary document.[1] [2] Although legislatures have created certain, limited situations in which a statutory scheme for wealth transfer overcomes the testator’s intent,[3] the intent expressed in the language of the will document remains the foundation of testamentary

  • • 4


The idea that courts should seek to determine a testator’s donative intent via an interpretation of the will’s language flows implicitly from the foundations of Anglo-American society, as commentators and courts have often noted.[4] [5] Courts and legislatures continue to treat the determination of a testator’s intent as the “pole star” of judicial interpretation.[6]

Despite overwhelming agreement that determining a testator’s intent stands as the correct end of judicial interpretation of a will, this question remains: How should a court go about determining a testator’s intentions? After all, courts find little more than words in the will document itself. Indeed, the testator, by definition, is not around to testify as to the intent couched in the language of his will.[7]

Most jurisdictions’ courts and legislatures dictate that a court should look to the four corners of a will document to determine a testator’s intention.[8] This “plain meaning” rule prohibits courts from admitting any evidence extrinsic to the will document that would contradict or add to the plain meaning of the will’s language.[9] Only when the meaning of the will is so ambiguous that a court might reasonably interpret the will’s language in multiple ways may courts look to extrinsic evidence.[10] Most jurisdictions require their courts to evaluate the effect of the will’s “plain and unambiguous language” before determining whether the testamentary language is so ambiguous as to require analysis of extrinsic evidence.[11] Accordingly, courts enjoy great control in deciding what that “plain and unambiguous” language really says and, consequently, whether any evidence outside the four corners of a will document will ever be considered in determining a testator’s intent. Once a court determines that the language of a will is “plain and unambiguous,” that court has deemed itself the interpreter of the language of that will without reference to any

evidence save the language of the will.[12]

The process by which courts interpret testamentary language—once they decide that the words of the will document are not so ambiguous as to require extrinsic evidence—is a key consideration. Ideally, these words are a means of communication particular to the testator that, when translated, unveil that testator’s intent.[13] Unfortunately, the code is typically less than perfect, for it depends on testators to use words in a perfectly decipherable way.[14] As the amalgam of American society moves away from any semblance of a standardized grammar in actual usage, courts must recognize that universally and absolutely decipherable language is a relative descriptor, subject to various interpretations by different readers.[15]

American courts have followed four approaches to language interpretation in their attempts to recognize usage inconsistencies within the standard process of interpreting a testator’s intent from only the words of the will document.[16] These approaches all strive for balance between two historical concerns of testamentary law: the determination of testamentary intent and the inviolability of testamentary instruments as the sole expression of a testator’s intent.[17] No approach achieves a perfect balance.[18]

Although a number of commentators have written on testamentary intent[19] and the use of extrinsic evidence in determining testamentary intent,[20] few have addressed the consequences of courts’ endeavors to determine testamentary intent solely through interpretations of a testator’s language.[21] Those analyses that have addressed courts’ attempts to interpret the language of wills, however, recognize such interpretations’ attendant problems.[22] Courts that eschew extrinsic evidence of a testator’s intent and rely solely on the will’s language[23] run the risk of interpreting the testator’s language according to traditional rules of grammar that might not apply to this particular user of English.[24] This ensures an interpretation of testamentary intent that might be far from the testator’s true wishes.[25]

Courts must recognize that their approaches to words drive their interpretations of language and their resultant determinations of a testator’s intent.[26] Instead of foisting meaning on the testator’s words according to some elaborate, prescriptive grammatical rules,[27] and instead of using some amorphous “natural and ordinary meaning” of the words,[28] courts should interpret the language of a will in such a way as to best determine testamentary intent while maintaining the strict standards of traditional probate law.[29] To this end, courts should look to extrinsic evidence—not of the testator’s intent, but of the testator’s use of language—to determine this intent via a descriptive linguistic analysis of the language of the will.[30]

Part II of this Note examines the historical development of the various approaches to analyzing a testator’s intent. Part II further explains the prescriptive grammar and the descriptive linguistics approaches to language analysis and their potential applications to the interpretation of wills. Part III analyzes current approaches to will interpretation and their relative abilities to meet the policy considerations typically thought to underpin the law of wills. Finally, Part IV proposes a workable solution based on a descriptive linguistic analysis of the language of a will that seeks to harmonize courts’ approaches to will interpretation and better meet the historical objectives of the law of wills.

[1]  Andrea W. Cornelison, Dead Man Talking: Are Courts Ready to Listen? The Erosion of the Plain Meaning Rule, 35 REAL PROP. PROB. & Tr. J. 811, 811 (2001) (citing 9 JOHN H. WIGMORE, Evidence in Trials in Common Law § 2462, at 198 (James M. Chadbourn ed., 1981)).

[2]   See Sir William Blackstone, 2 Commentaries on the Laws of England 499, 500

(Dawsons of Pall Mall 1966) (1766) (noting that wills are also referred to as “testaments,” which Roman lawyers defined as “the legal declaration of a man’s intentions, which he wills to be performed after his death”) (internal quotation marks omitted); ISAAC F. REDFIELD, 1 LAW OF WILLS § 2.1 (4th ed. 1876). See also infra notes 5-6 and accompanying text.

[3]   Legislatures have instituted such statutes to protect spouses from being disinherited, a move made necessary as jurisdictions have begun to move away from enforcing surviving spouses’ common law rights of dower and curtesy. Marissa J. Holob, Note, Respecting Commitment: A Proposal to Prevent Legal Barriers from Obstructing the Effectuation of Intestate Goals, 85 CORNELL L. Rev. 1492, 1501 (2000) (“[D]ower . . . and curtesy have given way to a probate system that includes not only the surviving spouse, but nonmarital and adopted children as well.”). For example, statutory schemes in twenty-five states provide for a spousal election of a statutorily determined share of decedent’s estate in lieu of the testator’s bequest to the spouse. David E. Wagner, The South Carolina Probate Code’s Omitted Spouse Provision and In re Estate of Timmerman, 50 S.C. L. Rev. 979, 981­82 (1999). Pretermitted spouse and pretermitted child statutes in force in some jurisdictions grant a statutorily defined share of the testator’s estate to spouses and children left out of the estate plan with no explanation. See Bruce L. Stout, Planning for Possible Pretermitted Children and Pretermitted Spouses, 24 Est. PLAN. 269, 272 (1997) (“The purpose of a pretermitted spouse statute is to protect the surviving spouse of a marriage that was not contemplated when the testator’s will was executed.”); see also id. at 269 (“The purpose of [pretermitted child statutes] is to provide a share of the testator’s estate to a child who is omitted unintentionally from the will.”); Wagner, supra, at 982. But see Mary

Ellen Kazimer, The Problem of the “Un-omitted” Spouse Under Section 2-301 of the Uniform Probate Code, 52 U. CHI. L. REV. 481, 497 (1985) (“[The omitted spouse statute] should not be construed to protect the surviving spouse when that goal conflicts with the testator’s intent.”).

Finally, slayer statutes alter the testator’s intended distribution of her wealth as a matter of public policy; the legislature will not allow a devisee who intentionally kills his devisor to inherit from that testator. Adam J. Hirsch, Inheritance Law, Legal Contraptions, and the Problem of Doctrinal Change, 79 OR. L. Rev. 527, 539-40 & n.45 (2000) (noting also that Congress and more than forty states have enacted statutes that prevent criminals from profiting in any way from their crimes, including inheriting from their victims) (citing Orly Nosrati, Note, Son of Sam Laws: Killing Free Speech or Promoting Killer Profits?, 20 WHITTIER L. REV. 949, 953 nn.48-49 (1999)). In essence, the legislature alters the common law’s deference to a testator’s intent in his wealth distribution for policy reasons, striking a difficult balance between two elemental aspects of probate law: “attempting to carry out the testator’s intent and protecting the surviving spouse.” Wagner, supra, at 981. These legislative actions do not dull the importance of courts’ attempts at determining testamentary intent. Legislation still overrules intention only in exceptional circumstances. Hirsch, supra, at 530 (“Rather than overturning prior doctrines overnight, lawmakers typically carve out exceptions until at last the old rule is entirely hollowed out.”).

[4]   See infra notes 5-6 and accompanying text.

[5]   See, e.g., Jane B. Baron, Intention, Interpretation, and Stories, 42 DUKE L.J. 630, 634 (1992) (citing Elias Clark et al., Cases and Materials on Gratuitous Transfers 1 (3d ed. 1985)); James Schouler, A Treatise on the Law of Wills § 466 (1887) (calling deference to the testator’s intent the “cardinal rule of testamentary constitution”); GEORGE W. THOMPSON, Construction and Interpretation of Wills § 41, at 48 (1928) (“The first rule of construction with respect to . . . a will is to ascertain the intention of the . . . testator from the four corners of the instrument, giving effect, if possible, to every part of it.”). See also infra notes 31-38 and accompanying text.

[6]   Schouler, supra note 5. See also infra notes 39-40 and accompanying text. Additionally, the Uniform Probate Code (“UPC”)—perhaps the most modern of all treatments of the law of wills— indicates that one of the UPC’s purposes is “to discover and make effective the intent of a decedent in distribution of his property.” UNIF. PROB. CODE § 1-102(b)(2) (1969).

[7]   The only situation in which a court can actually question the testator as to the meaning of his will’s language arises in the rare case of a living probate proceeding, whereby a testator submits her will to a probate court during her life in order to discourage postmortem will contests and best insure that the testator’s intentions will be honored in the probate process. Aloysius A. Leopold & Gerry W. Beyer, Ante-Mortem Probate: A Viable Alternative, 43 ARK. L. Rev. 131, 165-75 (1990). See also Gerry W. Beyer, Pre-Mortem Probate, PROB. & PROP. July-Aug. 1993, at 6-9; John H. Langbein,

Living Probate: The Conservatorship Model, IT MICH. L. Rev. 63 (1978).

[8]   See infra notes 44-85 and accompanying text.

[9]   Cornelison, supra note 1, at 814.

[10]  Id. at 819. The ambiguity doctrine allowing the use of extrinsic evidence defies simple explanation. Under the doctrine, courts can look outside the four corners of a will document when they see certain ambiguities in a will’s language. For instance, a patent ambiguity is apparent from the information available within the will document, usually because of directly conflicting provisions. Id. Most, but not all, courts admit extrinsic evidence to resolve patent ambiguities. Id. at 819-20. Latent ambiguities become evident when the terms of the will are applied. Id. at 820. The very nature of latent ambiguities requires the admission of some extrinsic evidence. Id. at 822. However, courts often differ as to the amount of extrinsic evidence they will admit to resolve these ambiguities. Id. at 822-23. Some courts also admit extrinsic evidence in order to resolve ambiguities arising from equivocations—where two objects fit a testator’s description equally well. Id. at 823. For an examination of the Connecticut Supreme Court’s endorsement of the use of extrinsic evidence to resolve an ambiguity resulting from a scrivener’s error, see Jay N. Hershman, Case Comment, Erickson v. Erickson: Extrinsic Evidence in Probate Cases, 15 QUINNIPIAC PROB. L.J. 143 (2000).

If a court does not find a will document’s language sufficiently ambiguous to require extrinsic evidence to determine a testator’s intent, it can clarify the language of the will without venturing beyond the four corners of the document. THOMPSON, supra note 5, § 2, at 2.

Although the terms “construction” and “interpretation” are sometimes used interchangeably to describe the process by which a court determines a testator’s intent from the words of her will, they have distinctly different definitions. Id. A court “construes” a will according to a set of jurisdiction- specific statutory or case-derived presumptions that operate to “draw[] . . . conclusions regarding subjects that are not always included in the direct expression.” Id. A court “interprets” a will according to nonstatutory, universal standards “for the purpose of ascertaining the true sense of any form of words.” Id. Accordingly, “[t]he meaning of the testator’s words must be ascertained by interpretation before there can be a judicial construction of his will.” Id. These are not uniform presumptions laid down by legislative mandate as the result of extensive policy discussion; rather, a court interprets a will according to practical considerations and case-by-case analysis to create meaning unique to the document being interpreted.

[11]   See infra note 46 and accompanying text.

[12]   This Note focuses on the ways in which courts engage in the interpretation of the language of a will document. For a discussion of the differences between the “construction” and “interpretation” of a will’s language, see infra note 10 and accompanying text.

[13]   Baron, supra note 5, at 637-39.

[14]   Id. at 639.

[15]   James Milroy & Lesley Milroy, Authority in Language: Investigating Standard

ENGLISH 48-52 (3d ed. 1999). Spoken language changes continuously as a result of the innovations of individual speakers and the influences of social factors. Id. at 48. Pronunciation and meaning change within regions and social classes, and these new “standards” are maintained by “covert and informal pressure for language maintenance, which is exerted by members of one’s peer-group or social group.” Id. at 49.

Written language changes more slowly, for “[w]e live in a society that places considerable emphasis on literacy, and much of our schooling is devoted to the acquisition of literacy. As a result, many of the handbook prescriptions on ‘correct’ English . . . are concerned primarily with correct written English . . . .” Id. at 52-53.

Because conflict exists between the myriad variations of spoken English and some single, standardized view of “correct” written English, confusions arise when one writes the way one speaks. For example, one might say, “He only died yesterday.” Id. at 53. The speaker intends to convey the message that the person died, with emphasis on the fact that the death occurred yesterday. Id. Those proponents of standardized, “correct” English would suggest that this same syntax conveys a message similar to this: “All that he did yesterday was die.” Id.

This potential ambiguity is of little or no importance in speech, as the social context and mutual knowledge of speakers, together with stress and intonation, will make the intended meaning clear.

. . . Writing, however, is deprived of stress, intonation and the possibility of immediate feedback from speakers: to write a language well is a continuous struggle against ambiguity. In written prose, therefore, a potential ambiguity of the kind discussed is functionally inefficient: the sentence may be wrongly understood.

Id. See also infra notes 101-04 and accompanying text.

[16]   See infra notes 70-85 and accompanying text.

[17]  Adam J. Hirsch, Inheritance and Inconsistency, 57 OHIO ST. L.J. 1057, 1060-67 (1996). See also infra notes 31-66 and accompanying text.

[18]   See infra notes 107-39 and accompanying text.

[19]  See, e.g., REDFIELD, supra note 2, § 33.12; Mary Louise Fellows, In Search of Donative Intent, 73 IOWA L. REV. 611 (1988); Note, Ademption and the Testator’s Intent, 74 HARV. L. Rev. 741 (1961).

[20]   See, e.g., Sir James Wigram, On Extrinsic Evidence, in THE LAW OF WILLS (1872).

[21]   James L. Robertson, a former justice of the Supreme Court of Mississippi, recognizes (based on many years of difficulty with the cases on his own docket) that courts have a hard time determining testamentary intent in any case, regardless of the clarity of the will’s language, the existence of extrinsic evidence, or the theoretical approach underlying the court’s analysis. James L. Robertson, Myth and Reality—or, Is It “Perception and Taste?”—in the Reading of Donative Documents, 61 FORDHAM L. REV. 1045 (1993).

[22]  Robertson recognizes that, in attempting to interpret testamentary intent in situations where the court decides that the language of the will is not sufficiently ambiguous to require extrinsic evidence of intent, courts “commingl[e] a subjective, internal approach to meaning with a host of quasi-objective, external standards.” Id. at 1053. The negative element of this sort of interpretation, in Robertson’s opinion, is the courts’ “failure to see how deeply interpretive our enterprise is.” Id. Essentially, by couching its interpretation in quasiobjective standards, a court convinces itself that it has somehow objectively divined the testator’s true intent. Id.

Robertson suggests that courts, in an attempt at intellectual honesty in their interpretation of wills, should no longer attempt to determine the intent of the testator. Id. at 1054. Instead, courts should apply rigid rules of construction to all wills; when a will uses certain words, a court will interpret the language in a particular way. Id. As Robertson notes, this approach better conforms with courts’ actual practices. Id. To disregard the testator’s intent completely, however, flies in the face of the elemental policy underlying wills—that a testator should be able to dispose of her property at death however she likes. See supra note 1 and accompanying text.

Judge Robertson’s suggested solution perhaps moves too far away from an objective analysis of intent. As another commentator has stated, “[t]he state’s requirements with respect to wills should be those—and only those—that enable it to serve its supporting, implementing (of the testator’s intent) role.” Baron, supra note 5, at 634. The foundations of Robertson’s suggestions for reform, however, could merge with the continued search for a testator’s intent. Following Robertson’s writing, courts should at least recognize that their determinations of the meaning of a will’s language are driven by forces other than merely the established rules of interpretation and construction.

[23]  This Note describes four approaches to interpreting the meaning of the language of a will that either completely or at least partially avoid considering extrinsic evidence of a testator’s intent. See infra notes 74-75 and accompanying text (“words of the will” approach), notes 76-78 and accompanying text (“ordinary and natural meaning” approach), notes 79-81 and accompanying text (“liberal interpretation” approach), and notes 82-85 and accompanying text (“in light of surrounding circumstances” approach).

[24]   See supra note 15 and accompanying text. See infra notes 87-104 and accompanying text.

[25]   See supra note 15 and accompanying text.

[26]   See infra notes 87-104 and accompanying text.

[27]   See infra notes 87-101 and accompanying text.

[28]  See infra notes 76-78 and accompanying text. Moreover, the “natural and ordinary meaning” approach to interpretation often turns out to be nothing more than a prescriptive grammatical analysis of the testator’s language.

[29]   See supra note 17 and accompanying text. See infra notes 31-57 and accompanying text.

[30]   See infra Part IV.