1. History of the Law of Wills
  2. Determining a Testator’s Intent—English Roots

Determining a testator’s intent has long served as the foundation of the common law of testamentary instruments.[1] In his seminal analysis of the history of English common law, Blackstone noted that courts’ collective focus on a testator’s intent stems from the very foundations of the Anglo- American system of private property.[2] The Magna Carta established the individual’s statutory right to dispose of his[3] property at death according to his own intentions.[4] When a decedent had not provided by will for the disposition of his goods, the lord of the fee would take the property by escheat[5] and vest it in the Church, to be held in trust for the benefit of the poor.[6] Consequently, the Church’s prelates began demanding that wills, which could deprive the Church of property, be proven valid by a showing that the testamentary document adequately represented the testator’s intent.[7] Determining and proving the intention of the testator in creating his will thus grew to be the primary concern of the original probate processes in England.[8] This basic deference to the testator’s intent remained strong in the American legal system[9] and continues in current

probate schemes, statutes, and jurisdictions throughout the United States’ various jurisdictions.[10]

Requirements as to the form and execution of will documents[11] gradually developed as a foundation for helping prelates—and later, courts—determine a testator’s intent.[12] Form requirements alone, however, often precluded a precise determination of a testator’s intent.[13] Consequently, the focus of many courts’ analyses of testamentary documents turned to the words of the will.[14] Once a court decided to focus on the language of the will without the benefit of extrinsic evidence as to its meaning,[15] that court would consider only the “plain meaning” or the “plain and unambiguous words of the will” in determining a testator’s intent.[16] Consequently, traditional approaches to will interpretation stayed within the four corners of the will to determine a testator’s intent.

Traditional approaches focused on determining “plain meaning” from within the four corners of the will because of the perceived inviolability of the will document. Indeed, historical English society’s reverence for the power and consequence of written words underpinned this deference to the will document in lieu of reliance on extrinsic evidence.[17] The “plain meaning” rule maintained its hold on the English legal system into the twentieth century for reasons unique to the English version of private property acquisition and transfer.[18] However, English courts eventually abandoned the plain meaning rule and its underlying justifications, and they now admit extrinsic evidence in their interpretations of will documents.[19]

  1. The American Approach to Determing Intent

Modern American courts, on the other hand, have yet to turn completely away from the words of a will document and toward extrinsic evidence, although their reasons for doing so vary somewhat from those motivating their English counterparts. Specifically, American courts continue to look first and often solely to the words of a will in order to avoid the uncertainties that might stem from less reliable sources of evidence.[20]

American courts look to the words of a will to interpret testator intent because they tend to “doubt the reliability of extrinsic evidence.”[21] Because a will does not take effect until the testator’s death, a court cannot

ask the testator if a piece of extrinsic evidence truly reflects her wishes, and, as a result,[22] some courts consider extrinsic evidence too unreliable to truly reflect a testator’s intent.[23] Some commentators argue, however, that courts should not hesitate to use extrinsic evidence in their interpretations of wills under certain circumstances.[24] These commentators contend that the rules of evidence and “the crucible of cross examination” render extrinsic evidence certain enough to ascertain the testator’s intent to an acceptable degree of certainty.[25] Courts also cite the possibility of fraudulent representations of the testator’s intent as a reason to shy away from extrinsic evidence;[26] however, some commentators argue that the evidentiary process promises to root out fraudulent extrinsic evidence just as it should find unintentionally unreliable evidence.[27]

Some courts avoid using extrinsic evidence in interpreting a testator’s intent in order to provide some predictability to the form and interpretation of will documents.[28] When a testator spends time and, often, money to prepare a will according to established formalities, that testator expects that the language he has employed will mean the same thing fifty years from now as it does today.[29] Free use of extrinsic evidence in will interpretations threatens this certainty.[30] Some courts therefore attempt to maintain some sort of standardized code that defines particular language formations to represent each and every possible bequest in a will.[31] If a standardized code can be achieved, then the testator and the courts will be speaking the same language.[32]

Finally, American courts hesitate to consider extrinsic evidence when interpreting a will because the evidence has not been attested according to the formalities required by the Statute of Wills.[33] Some commentators have argued against these formalities as an “anguished, pedantic cult of symbols wholly worthless and meaningless in themselves.”[34] The Uniform Probate Code, however, has substantially lowered the bar on execution formalities, relying on alternative methods to determine testamentary


Thus, American courts have continued to look within the four corners of the will for the testator’s intent. In doing so, they have customarily allowed themselves to interpret a will in opposition to the strict grammatical reading of its language only when other sections of the will document provide a “clear and satisfactory ground” for presuming that the intent of the testator runs against the strict grammatical meaning of the words she used in writing her will.[36]

  1. Current American Approaches

Current American approaches to determining a testator’s intent from the language of a will tend to eschew the consideration of extrinsic evidence of testamentary intent in a manner consistent with traditional approaches. Generally, courts refuse to use extrinsic evidence of a testator’s intent so long as the will document, by itself, yields some clues—through its language, structure, or general theme—about the author’s wishes regarding his property.[37] Once these modern courts decide that the terms of the will are not sufficiently ambiguous to require extrinsic evidence of a testator’s intent,[38] they step beyond the traditional approaches to will interpretation. Instead of only looking to a strict grammatical interpretation of the will’s language,[39] modern courts will take one of four approaches to grammatical analysis of testamentary documents: the “words of the will” approach;[40] the “ordinary and natural meaning” approach;[41] the “liberal interpretation” approach;[42] or the “in light of surrounding circumstances” approach.[43]

The “words of the will” approach to testamentary interpretation continues the strict, traditional path of looking only to the technical meaning of the language of the will document.[44] This approach proceeds from the idea that the language of the will is the only certain expression of the testator’s intent, particularly because of the safeguards afforded by the historical formalities of will execution.[45]

The “ordinary and natural meaning” approach is quite popular among American jurisdictions.[46] It relaxes the traditional approach; although courts are still confined to the language of the will, the interpretation of that language is considerably less constricted.[47] Courts using this approach do not bind themselves to interpret the testator’s words according to strict grammatical and legal analysis; rather, they may stretch the language beyond its strict definitions to its “ordinary and natural meaning” to better effectuate a testator’s overall intent, as gleaned from the whole of the will


Other courts prefer a “liberal interpretation” approach. This approach maintains the traditional limitation on a court’s focus;[49] the judges still look exclusively to the words of the will to determine testamentary intent.[50] Unlike the requirement that constrains the courts to look to an objective meaning of a will’s language under the “words of the will” approach and the “ordinary and natural meaning” approach, however, this approach gives a “liberal interpretation” to the words of the will in order to better effectuate the testator’s intent.[51]

Finally, some courts prefer the “in light of surrounding circumstances” approach.[52] This approach explodes the four corners of the will document and allows courts to attempt to determine the intention of the testator from an analysis of her words “in light of the surrounding circumstances.”[53] In other words, this approach allows courts to examine extrinsic evidence about the situation surrounding the execution of the will, which is essentially evidence as to testator intent.[54] The court can then attempt to liberally interpret the language of the will to fulfill the testator’s apparent intent.

[1]     BLACKSTONE, supra note 2, at 489-90 (discussing the history of testamentary transfers and

the foundational status of a testator’s intent in that history).

[2]     “[W]hen property came to be vested in individuals by the right of occupancy, it became necessary for the peace of society, that this occupancy should be continued, not only in the present possessor, but in those persons to whom he should think proper to transfer it.” Id. at 489.

[3]     Although I alternate between the use of masculine and feminine pronouns when describing abstract persons throughout this Note, in discussing abstract testators in historical England, it seems more appropriate to speak in masculine terms, as property rights of women at the time were severely restricted. For an example of the subjugated status of a woman’s property rights in historical England, compare the common law rights of dower and curtesy. CORNELIUS J. MOYNIHAN & SHELDON F. Kurtz, Introduction to the Law of Real Property 67-70 (3d ed. 2002). A tenancy by the curtesy entitled a husband to “a life estate . . . in all lands of which his wife was seised . . . at any time during the marriage provided that there was issue born alive capable of inheriting the estate.” Id. at 67­68. The husband had a present life estate both during and after his wife’s life. Id. at 68. Through her dower right, a widow received a life estate in only one-third of the land of which her husband had been seised, and only after his death. Id. at 68. Although the wife’s dower right was protected while it was an inchoate right, she enjoyed no present estate in her husband’s lands until after his death. Id. at 68-69 & n.10.

[4]     “[T]hen the residue of the goods shall go to the executor to perform the will of the deceased.”

Blackstone, supra note 2, at 492.

[5]     The king had power over all property existing in the land. MOYNIHAN, supra note 33, at 9. English subjects merely held an interest in the property, although the interest could be absolute and could stand up against all other claimants, save the king. See Adams County v. State, 252 N.W. 826, 827 (Neb. 1934). In the end, if the interests in the property somehow failed, the property would come, once again, under the control of its “original” owner by escheat. Id. (“In both England and the United States now, by escheat is meant the lapsing or reverting to the crown or the state as the original and ultimate proprietor of real estate, by reason of a failure of persons legally entitled to hold the same.”).

[6]     BLACKSTONE, supra note 2, at 494.

[7]    Id. “[I]t was thought just and natural, that the will of the deceased should be proved to the satisfaction of the prelate,” for the will’s “efficacy depends on it’s [sic] declaring the testator’s intention.” Id. at 494, 500.

[8]     Id. at 494.

[9]    Hirsch, Inheritance and Inconsistency, supra note 17, at 1060 (quoting George L. Haskins, The Beginnings of Partible Inheritance in the American Colonies, 51 YALE L.J. 1280, 1286-88 (1942)) (“The court then ordered distribution ‘according to the minde of the deceased.’”).

[10]   See, e.g., CAL. PROB. CODE § 21102(a) (West 2002) (“The intention of the transferor as expressed in the instrument controls the legal effect of he dispositions made in the instrument.”); La. CIV. CODE ANN. art. 1611 (West 2000) (“The intent of the testator controls the interpretation of his testament.”); MO. ANN. STAT. § 474.430 (West 1992) (“All courts and others concerned in the execution of last wills shall have due regard to the directions of the will, and the true intent and meaning of the testator, in all matters brought before them.”); United States v. Spicer, 332 F.2d 750, 753 (10th Cir. 1964) (noting that Kansas courts had stated “that the intent of the testator is to receive primary consideration”); Stiles v. Brown, 380 So. 2d 792, 796 (Ala. 1980) (“The general policy behind the law of wills in Alabama is to give effect as nearly as possible to the testator’s intentions as expressed in his will.”); Ware v. Green, 691 S.W.2d 167, 169 (Ark. 1985) (stating that the purpose of judicial interpretation of a will is to determine the testator’s intent); Palms Clinic and Hosp., Inc. v. Ariz. Soc’y for Crippled Children and Adults, Inc., 433 P.2d 296, 300 (Ariz. Ct. App. 1967) (“The cardinal rules for construction of all wills is to ascertain the intention of the testator . . . .”) (quoting Newhall v. McGill, 212 P.2d 764, 766 (Ariz. 1949)); Fleming v. First Union Nat. Bank, 555 S.E.2d 728, 730 (Ga. 2001) (“[T]he primary consideration in construing wills must be the ascertainment of the intention of the testator.”); Dempsey v. Holsen, 444 N.E.2d 704, 712 (Ill. App. Ct. 1982) (noting that the determination of intent “from the will itself” is key to the construction of the will); Petit v. Levine, 657 S.W.2d 636, 643 (Mo. Ct. App. 1983) (noting that the controlling rule of testamentary interpretation is “to give effect to the true intent and meaning of the testatrix”); Polen v. Baker, 752 N.E.2d 258, 260 (Ohio 2001) (“[T]he sole purpose of the court should be to ascertain and carry out the intention of the testator.”) (internal citations omitted); In re Estate of Martin, 635 N.W.2d 473, 477 (S.D. 2001) (“Our goal in interpreting a will is to discern the testator’s intent.”).

Additionally, Alaska, Arizona, Colorado, Florida, Hawaii, Idaho, Maine, Michigan, Minnesota, Montana, Nebraska, New Mexico, North Dakota, South Carolina, and Utah have all adopted, to some extent, the Uniform Probate Code. Lawrence H. Averill, Jr., An Eclectic History and Analysis of the 1990 Uniform Probate Code, 55 ALB. L. Rev. 891, 900 (1992). See also UPC § 1-102(b)(2) (stating that honoring testamentary intent is one of the UPC’s core values).

[11]  These execution requirements include such features as the testator’s signature—usually at the end of a will document—and attestation by disinterested witnesses. Baron, supra note 5, at 635.

[12]  See id. (“The formal requirements of will execution—the necessity of a writing and of an attestation, for example—are designed to satisfy this need [to know the testator’s intentions regarding her property].”).

[13]   Id. at 635.

[14]   Id.

[15]   American courts and commentators have always recognized the value of extrinsic evidence in determining a testator’s intent. See, e.g., Wolfe v. Van Nostrand, 2 N.Y. 436, 440 (N.Y. 1849) (using extrinsic evidence to further support a conclusion of intent justified by the words of the will alone). In early American courts, however, such extrinsic evidence could not, independent of other evidence in the language of the will, “have any proper weight, where the language is plain and the meaning is obvious.” REDFIELD, supra note 2, at 431. Moreover, “it is always the safest mode of construction [(meaning interpretation)], to adhere to the words of the instrument, without considering [other] circumstances.” Id. (citing Currie v. Murphy, 35 Miss. 473, 487 (1858)). See also supra notes 10-12 and accompanying text.

[16]  REDFIELD, supra note 2, at 430 (citing Dawes v. Swan, 4 Mass. 208 (1808); Mann v. Executors of Mann, 14 Johns. Ch. 231 (N.Y. Ch. 1814)).

[17]   Id. at 194.

[18]  Id. Specifically, courts preferred the plain meaning rule to the use of extrinsic evidence of a testator’s intent because the English system’s emphasis on the transfer of real property within the family favored the intestate system of succession and disfavored transfers of real property to a decedent’s chosen beneficiaries when they were outside the family. Id. Consequently, judges sometimes turned a blind eye to obvious (yet extrinsic) evidence of intent in order to insure predictable conveyance of land-based wealth within a family. Id.

[19]  See Cornelison, supra note 1, at 814 (citing JESSE DUKEMINIER & STANLEY M. JOHANSON, Wills, Trusts and Estates 427 (5th ed. 1995)).

[20]   See infra notes 51-56 and accompanying text.

[21]   Cornelison, supra note 1, at 815.

[22]  Id. “The testator’s main protection against fabricated or mistaken evidence is the will itself.” John H. Langbein & Lawrence W. Waggoner, Reformation of Wills on the Ground of Mistake: Change of Direction in American Law? 130 U. PA. L. Rev. 521, 525 (1982). For a discussion of ante-mortem probate, see supra note 7.

[23]   Cornelison, supra note 1, at 815.

[24]   Robertson, supra note 21, at 1081-84.

[25]  Id. at 1081. Some commentators have suggested that a “clear and convincing” standard of proof would assure the reliability of extrinsic evidence used in a will interpretation. Cornelison, supra note 1, at 815-16.

[26]   Cornelison, supra note 1, at 816.

[27]  Id. Professor Cornelison also notes that fraudulent evidence might be the work of unscrupulous lawyers, but states that the threat of disbarment should protect against such fraudulent activity. Id. Regardless of the deterrent effect of the threat of disbarment to lawyers, the same evidentiary process promises to protect a court from fraudulent information, whatever the source. Id.

[28]   Id.

[29]  Id. See also, e.g., Atwater v. Meeks, 508 P.2d 866, 873 (Kan. 1973) (“If courts should indulge an unlimited latitude of forming conjectures on wills by continually placing themselves in the positions of the testator to ascertain his intentions, instead of attending to their grammatical and legal construction, the consequences must be endless litigation.”); In re Estate of Campbell, 655 N.Y.S.2d 913, 920 (N.Y. App. Div. 1997) (“A Will is a document of signal importance, expressive of an individual’s last wishes regarding the disposition of the property he has worked a lifetime to accumulate. A testator has a right to expect . . . that only true expressions of the wishes of an individual possessing testamentary capacity and executed in accordance with the proper statutory formalities will be given effect by the courts of this state.”) (citation omitted). See also infra note 60 and accompanying text.

[30]  Cornelison, supra note 1, at 816. The North Dakota Supreme Court, for one, explained that allowing extrinsic evidence “would leave every will open to attack as to the testator’s alleged ‘real’

intent, and would deprive decedents of any certainty about the eventual disposition of their estates.” American Cancer Soc’y v. Unruh, 559 N.W.2d 818, 822 (N.D. 1997).

[31]   Baron, supra note 5, at 638-39.

[32]  See id. (discussing the idea that one can think of the words of a will as a code to convey ideas; Richard W. Power, Wills: A Primer of Interpretation and Construction, 51 IOWA L. Rev. 75 (1965).

[33]   Cornelison, supra note 1, at 817. Indeed, many commentators recognize that these execution formalities “serve useful ends.” Bruce H. Mann, Formalities and Formalism in the Uniform Probate Code, 142 U. PA. L. REV. 1033, 1036 (1994).

They take the vast array of testamentary things and channel them into a form that is readily recognizable as a will, thus easing the transfer of property at death. By imposing a standard form on testamentary writings, they enable probate courts to identify documents as wills solely on the basis of readily ascertainable formal criteria, thereby permitting probate to proceed in the vast majority of cases as a routine, bureaucratic process.

Id. See also Lawrence M. Friedman, The Law of the Living, the Law of the Dead: Property, Succession, and Society, 1966 WIS. L. Rev. 340, 367-68 (1966); supra note 41 and accompanying text.

[34]   Mann, supra note 63, at 1034 (quoting 2 RUDOLPH VON JHERING, GEIST Des ROMISCHEN Rechts Auf den VERSCHIEDENEN Stufen Seiner Entwicklung 478-79 (1883), quoted in Duncan Kennedy, Legal Formality, 2 J. LEGAL STUD. 351, 354 (1973)).

[35]  See U.P.C. § 2-502 & cmt. at 47 (“The intent is to validate wills which meet the minimum formalities of the statute.”). While this is by no means the law in every American jurisdiction, it does represent the thinking of the experts in the field of wills law who created the uniform code.

[36]   REDFIELD, supra note 2, at 465. It is interesting to note, too, that courts go to great lengths to balance the desire to derive intent from within the four corners of the will with a desire to give effect to its “plain and unambiguous language” when interpreting testamentary intent. Id. at 465-66. For example, once a court determines the testator’s intent from the complete body of the will and decides that the testator’s intent is not being fully effected by the grammatical forms used by the testator in the writing of the will, it can give such a construction as would support such intent of the testator, even against strict grammatical rules, to the extent of even transposing, supplying, or rejecting entire words, phrases, or punctuation. Id. at 464 (citing Pond v. Bergh, 10 Paige Ch. 140, 152 (N.Y. Ch. 1843)).

[37]   These approaches range from more restrictive “four corners of the will” analysis to more liberal approaches, which focus on determining intent even if not expressly contained in the words of the will. Regardless of approach, however, a number of courts have limited their analyses to the actual terms of the will. See, e.g., Robertson v. United States, 310 F.2d 199, 202 (5th Cir. 1962) (stating that the will must speak for itself in the absence of ambiguity or conflict); Roberts v. United States, 182 F. Supp. 957, 959 (S.D. Cal. 1960) (“The intent of the testator is derived from the language he employed [in the will] and, when that is clear, the court may not speculate on what he might have intended to say or do.”); Born v. Clark, 662 So. 2d 669, 671 (Ala. 1995) (stating that, absent ambiguity in the language of the will, the court must look to the four corners of the document and let those words inform them of the testator’s intent); In re Lanart’s Estate, 9 Alaska 535, 542 (D. Alaska 1939) (stating that the intention of the testator need not be expressly declared in the entire will, so long as it can be inferred from the scope and import of the will); Lowell v. Lowell, 240 P. 280, 282 (Ariz. 1925) (stating that, if the words of a will are not ambiguous, a court must allow the meaning of those words to control, even if this interpretation overrules the apparent will of the testator); Aycock Pontiac, Inc. v. Aycock, 983 S.W.2d 915, 919 (Ark. 1998) (stating that the court must allow the language within the four corners of the will to govern as to testator intent); Crittenden v. Lytle, 253 S.W.2d 361, 363 (Ark. 1953) (stating that intent must be derived from the language of the will); Griffin v. Gould, 432 N.E.2d 1031, 1033 (Ill. App. Ct. 1982) (stating that wills whose language leaves doubt as to their meaning may be interpreted in light of surrounding circumstances and extrinsic evidence); Ostby v. Bisek, 479 N.W.2d 866, 871 (N.D. 1992) (“Unless a duly executed will is ambiguous, the testamentary intent is derived from the will itself, not from extrinsic evidence.”); Westmoreland County Volunteer Rescue Squad v. Melnick, 414 S.E.2d 817, 818 (Va. 1992) (stating that a testator’s intention must be determined from the language of the will document).

Some courts, however, will circumvent the requirement that their analyses focus on the terms of the wills. For example, in California, a court may not consider evidence of the testator’s intent outside the four corners of the will unless the terms of the will are unclear and ambiguous. See, e.g., Nunes v. Nunes, 266 P.2d 574, 578 (Cal. Ct. App. 1954) (“If the terms are certain and free from ambiguity, effect must be given thereto and no speculation is permitted as to whether an intention may have existed contrary to that expressed. But if the language used is ambiguous, extrinsic evidence may properly be considered.”). In Hembree v. Quinn, however, the California Supreme Court noted that courts may look outside the four corners of a will when first deciding whether the will is ambiguous, in order to determine whether to resolve any ambiguity. Hembree v. Quinn, 444 P.2d 353, 359-62 (Cal. 1968). Id. (“Words are used in an endless variety of contexts. Their meaning is not subsequently attached to them by the reader but is formulated by the writer and can only be found by interpretation in the light of all the circumstances that reveal the sense in which the writer used the words. The exclusion of parol evidence regarding such circumstances merely because the words do not appear ambiguous to the reader can easily lead to the attribution to a written instrument of a meaning that was never intended.”). Id. at 359 (quoting Universal Sales Corp. v. Cal. etc. Mfg. Co., 128 P.2d 665, 679 (Cal. 1942) (Traynor, J., concurring)). In this way, the court found a way to consider the testator’s seemingly clear language in light of surrounding circumstances without technically violating the long­standing principle that a court may only look to extrinsic evidence when the terms of the will are facially ambiguous. For a similar approach to circumventing the traditional rules of will interpretation, see In re Walker, 849 S.W.2d 766 (Tenn. 1993).

[38]   See supra note 12 and accompanying text.

[39]   See infra notes 87-119 and accompanying text.

[40]   See infra notes 74-75 and accompanying text.

[41]   See infra notes 76-78 and accompanying text.

[42]   See infra notes 79-81 and accompanying text.

[43]   See infra notes 82-85 and accompanying text. This analysis is made more complex by the fact that courts in some jurisdictions have used more than one approach at different times in history without explicitly overruling a prior approach. For example, Arkansas courts have claimed to use both the “ordinary and natural meaning” approach and the “words of the will and nothing more” approach. See Estate of Wells v. Sanford, 663 S.W.2d 174, 176 (Ark. 1984) (holding that words in the will should be interpreted according to their “ordinary sense”); Heirs of Mills v. Wylie, 466 S.W.2d 937, 940 (Ark. 1971) (holding that court should look to the intention as it is expressed in the words of the will, not as the court might presume it to exist in the mind of the testator at the execution of the will); Jones v. Ellison, 15 S.W.3d 710, 713 (Ark. App. 2000) (“When construing a testamentary document to arrive at the testatrix’s intention, one does not look at the intention that existed in the testatrix’s mind at the time of the execution, but that which is expressed by the language of the instrument.”). Generally, though, one can evaluate these approaches as if they are discrete, even if their discrete nature is merely an academic reality.

[44]   See, e.g., Heirs of Mills v. Wylie, 466 S.W.2d at 940 (holding that the purpose of will interpretation is to determine intent from the language of the will document); Jones v. Ellison, supra note 73; Brewer v. Peterson, 453 P.2d 966, 971 (Ariz. Ct. App. 1969) (“We agree that the intent of the testatrix is the overriding consideration, but the intent expressed in the will is controlling.”); In re Estate of Simoncini, 280 Cal. Rptr. 393, 397 (Cal. Ct. App. 1990) (“In ascertaining the testator’s intent, courts employ an objective test: the intention to be determined is that which is actually expressed in the language of the will.”); Cal. First Bank v. Lee 166 Cal. Rptr. 587, 590 (Cal. Ct. App. 1980) (“The intention which an interpretation of a will seeks to ascertain is the testator’s intention as expressed in the words of the will, not some undeclared intention which may have been in his mind.”); Babcock v. Watson, 77 Cal. Rptr. 753, 763-64 (Cal. Ct. App. 1969) (holding that only one version of the testator’s intent was supportable due to a strict application of the rules of grammar); Bridgeport- City Trust Co. v. Buchtenkirk, 124 A.2d 231, 236 (Conn. 1956) (noting that the intent of the testator may only be determined from the language he used in is will); Cole v. Robertson, 429 S.E.2d 678, 679 (Ga. 1993) (“This search for intention of the testator should be made . . . by scrutinizing every phrase that [the will] contains.”); Weber v. Hawkins, 196 N.E.2d 695, 698 (Ill. 1964) (“[T]he intention sought is not that which by inference may be presumed to have existed in the mind of the testator, but that which, by words used in the will, he has expressed.”); In re Estate of Nagl, 408 N.W.2d 768, 771 (Iowa Ct. App. 1987) (“We consider not what the testator meant to say but what he meant by what he did say.”); In re Estate of Wernet, 596 P.2d 137, 145 (Kan. 1979) (“It is the intention of the testator spoken in the words of his will that govern and not any intention deduced from speculation as to what would have been done had the change been anticipated.”); Atwater v. Meeks, supra note 59, at 873 (suggesting that courts must focus on the grammatical and legal construction of a will document to determine a testator’s intent); Estate of Leighton, 638 A.2d 723, 724 (Me. 1994) (“The fundamental principle in [interpreting] a will is that the intention of the testator as expressed in her will controls the legal effect of her disposition.”); Solomon v. Cent. Trust Co. of Northeastern Ohio, N.A., 584 N.E.2d 1185, 1187 (Ohio 1992) (“Generally, the express language of the testamentary provisions themselves will indicate the testator’s intent.”); Gehl v. Reingruber, 159 N.W.2d 72, 75 (Wis. 1968) (“The essence of our inquiry then is to determine the reasonable meaning of the words actually used.”).

[45]   See supra notes 41-42 and 50-53 and accompanying text.

[46]   See infra note 78 and accompanying text.

[47]   See infra note 78 and accompanying text.

[48]   CAL. PROB. CODE § 21122 (West 2002) (calling for the interpretation of words in a will according to their “ordinary and grammatical meaning”); 84 OKLA. STAT. ANN. tit. 84, § 158 (West 2001) (“The words of a will are to be taken in their ordinary and grammatical sense unless a clear intention to use them in another sense can be collected, and that other can be ascertained.”); Lehr v. Collier, 909 S.W.2d 717, 723 (Mo. Ct. App. 1995) (“In ascertaining this intent, courts must give the words used in the will and trust their usual, ordinary and natural meaning unless there is something in the instruments to deflect from that meaning.”); Snyder v. Snyder, 2 P.3d 238, 240 (Mont. 2000) (“Words used in the instrument are to be taken in their ordinary and grammatical sense unless a clear intention to use them in another sense can be ascertained.” (quoting In re Estate of Evans, 704 P.2d 35, 38 (Mont. 1985)); Lincoln Nat. Bank & Trust Co. v. Grainger, 262 N.W. 11, 11 (Neb. 1935) (holding that courts should interpret the language of a will according to its “ordinary and natural meaning”); Forshee v. Downdey, 139 A. 321, 321 (N.J. Ch. 1927) (holding that words in a will should be given their “ordinary and natural meaning”); Narita v. Bernstein, 476 N.E.2d 298, 300 (N.Y. 1985) (stating that courts should construe the words of a will “according to their everyday and ordinary meaning”); Kretzer v. Brubaker, 660 N.E.2d 446, 447 (Ohio 1996) (stating that words should be given “their ordinary meaning and natural effect” (quoting Anderson v. Gibson, 157 N.E. 377, 378 (Ohio 1927)); Rhode Island Hosp. Trust Co. v. Otis, 75 A.2d 210, 212 (R.I. 1950) (holding that the words of a will should be interpreted according to their “natural sense and use” absent contrary intent); Heinatz v. Allen, 217 S.W.2d 994, 997 (Tex. 1949) (holding that courts should interpret a will’s language according to its “ordinary and natural meaning”); Firstar Trust Co. v. First Nat’l Bank of Kenosha, 541

N.W.2d 467, 471 (Wis. 1995) (“When considering the language of the will, the words must be given their common and ordinary meaning unless something in the will suggests otherwise.”).

[49]   See supra notes 50-66 and accompanying text.

[50]   See infra note 81 and accompanying text.

[51]  In re Lanart’s Estate, 9 Alaska 535, 542-43 (D. Alaska 1939) (stating that a court should look to the four corners of the will for the testator’s intent, and, if that intent is clearly inferred, that the court should engage in a “departure from the literal construction of [the language in] the will” to effect this inferred intent); Palms Clinics and Hosp., Inc. v. Ariz. Soc’y for Crippled Children and Adults, Inc., 433 P.2d 296, 300 (Ariz. Ct. App. 1967) (“[T]he language used must be liberally construed with a view to carrying into effect what the will as a whole shows was the real intent of the testator.” (quoting Newhall v. McGill 212 P.2d 764, 769 (Ariz. 1949)); In re Estate of Shaw, 538 N.E.2d 643, 645 (Ill. App. Ct. 1989) (allowing a liberal interpretation of the language of a will document to avoid intestacy); In re Estate of Johnson, 615 N.W.2d 98, 103 (Neb. 2000) (“To arrive at a testator’s or testatrix’s intention expressed in a will, a court must examine the will in its entirety, consider and liberally interpret every provision in the will, employ the generally accepted literal and grammatical meanings of words used in the will, and assume that the maker of the will understood words stated in the will.”) (emphasis added); Burgess v. Poulsen, 836 P.2d 1386 (Utah Ct. App. 1992) (allowing for a liberal interpretation of the language of a will in order to better determine a testator’s intent).

Although fewer jurisdictions employ the “liberal interpretation” approach, it remains a valid option for courts, partially due to its recognition by judicially utilized reference material. 80 AM. JUR. 2D Wills § 1157 (1975) (“It is frequently recognized that in ascertaining the meaning of words used in a will, a distinction exists between instruments drawn by skilled testamentary draftsmen and those prepared by persons obviously unlearned in the law; . . . the language exhibited in wills of the [second kind] is to be interpreted liberally with reference to its popular meaning.”).

[52]   See infra note 85 and accompanying text.

[53]   See infra note 85 and accompanying text.

[54]   See infra note 85 and accompanying text.