Scott T. Jarboe

Washington University School of Law


  1. Grammatical Models of Language Analysis

In all of the approaches to determining a testator’s intent described above, courts rely to some extent on a grammatical analysis of the language of the will as the basis for their decisions.[2] Typically, these analyses revolve around a standardized approach to English grammar: a prescriptive grammatical theory, or “a set of regulations that are based on what is evaluated as correct or incorrect in the standard varieties.”[3] “Prescription depends on an ideology . . . concerning language which requires that in language use . . . things shall be done in the ‘right’ way.”[4]

Prescriptive grammars of the English language first surfaced in England during the Age of Reason, the mid-eighteenth century.[5] This age of science yielded a complete classification of all living creatures.[6] Surely, grammarians thought, such a society could also define and regulate a grammar of the “corrupt” English language based on the “divine” and “pure” grammars of Latin and Greek.[7] Therefore, most eighteenth-century grammarians attempted to refine the English language, establish rules based on these refinements, and fix the language to prevent further change by codifying these rules.[8] These early grammarians imposed on English sets of rules based on Latinate grammars.[9] Consequently, the English language changed by becoming fixed.[10] For example, the rule that “[t]wo negatives in English destroy one another, or are equivalent to an affirmative”[11] continues today even though, for many speakers of nonstandard English (as well as for those who understand nonstandard forms of English), the use of more than one negator serves only to emphasize the negation.[12] Interestingly, this rule against double negation serves no function of meaning; rather, it merely introduces some prescriptive certainty to the use of the English language.[13] Moreover, this rule against multiple negation—and the other rules espoused by early English grammarians—made “correct” usage a moral good and the goal of educated speakers of English.[14] The belief that one usage of the English language is “correct” survives today.[15] When these prescriptive grammarians found a usage in the English language that did not fit within their carefully calibrated grammars, they attempted to squelch that usage and purify the English language.[16] This inflexibility has left the prescriptive approach to English grammar unable to explain usage that falls outside its bounds.[17]

A descriptive linguistics approach to language, on the other hand, describes how people use the English language to communicate;[18] it does not attempt to distinguish between “correct” and “incorrect” usage.[19] Specifically, a descriptive grammar requires an analysis of how individuals within a group—or individuals, themselves—communicate in order to describe the way in which certain speakers use words, syntax, punctuation, and word combinations in certain contexts.104

  • Analysis of Current Approaches in Light of Policy and


Once a court decides that it must interpret the language of a will to determine a testator’s intent, it may follow many paths to meaning. In any case, the court will need to balance the seemingly competing policy interests of determining a testator’s true intent by any possible means available with the desire to protect against fraud and maintain the integrity of the testamentary document by adhering to the traditional inviolability of the words of the testator’s will.105 All the while, the court must also be aware of the prejudices that accompany the use of prescriptive grammars in their analyses.106 Unfortunately, none of the modern approaches to will interpretation effectively balance these competing factors.

  1. The “Words of the Will” Approach[20] [21] [22] [23] [24] [25] [26] [27] [28] [29]

The “words of the will” approach to will interpretation bases itself in the traditional deference to the inviolability of the words of a properly executed will.108 Any attempt to presume intention from evidence other than the simple words of the will document potentially does violence to the intent of the testator.109 The “words of the will” approach avoids the potential pitfalls inherent in extrinsic evidence.110 Moreover, the “words of the will” approach favors a fail-safe code of language for certainty’s sake, such that every possible bequest in a will corresponds to a particular set of English words.111 However, courts can only rely absolutely on the language of a will if the formal execution requirements are effective to deter fraud.112 With the Uniform Probate Code’s move away from formal execution requirements,113 the language of a will may no longer be as reliable as it once was.

Additionally, the “words of the will” approach can do a poor job in deciphering true testamentary intent. Many authors of wills, especially those who create holographic—handwritten—wills, draft in all sorts of nonstandard English forms.[30] As with any court-instituted interpretation of testamentary language that fails to consider the descriptive grammar of the testator, the “words of the will” approach risks missing the testator’s intent completely because of a misguided attempt to fit the testator’s use of the English language within overgeneralized, prescriptive categories.[31]

  1. The “Natural and Ordinary Meaning” Approach[32]

The “natural and ordinary meaning” approach—quite popular among American courts[33]—does a similarly good job of emphasizing the importance to will interpretation of the words of a validly executed will.[34] The approach puts great credence in the words of the testamentary document, thus reasserting the importance of the fraud-protection functions of formal will execution;[35] however, this approach relaxes somewhat the traditional “words of the will” approach to the interpretation of language. Specifically, courts need no longer interpret the testator’s words according to a strict prescriptive grammatical or legal analysis;[36] rather, those courts may stretch the language of the will beyond its strict definitions to its “ordinary and natural meaning” to better achieve a testator’s intent as gleaned from a reading of the will as a whole.[37]

The “ordinary and natural meaning” approach continues to limit courts’ analyses to the four corners of the will document.[38] However, it also moves beyond historical approaches to a less restrictive reading of the will’s language in light of the testator’s supposed intention as derived from a reading of the entire testamentary scheme.[39] However, as with any interpretative scheme based on prescriptive grammatical analysis, this approach can still yield an interpretation that veers far from the true intention of the testator simply because the words of the testator are not used in the way a court says a typical testator would or should use them.[40]

  1. The “Liberal Interpretation” Approach[41]

Like the first two approaches analyzed here, the “liberal interpretation” approach to testamentary interpretation maintains focus on the fraud- avoidance value of limiting the analysis to the words of the validly executed will document.[42] A court following this approach may still look exclusively to the words of the will;[43] however, the “objective” analysis requirement that might restrain a court’s interpretation in the first two approaches gives way, here, to a “liberal interpretation” of the words of the will in order to effectuate the testator’s intent.[44] If the intent of the testator is apparent from some other source within the will, then the court can essentially do whatever it needs to do to carry out this intent.[45] While courts utilizing this approach to will interpretation experience a freedom of action unknown to courts following the more traditional approaches described above, a court’s general interpretation of a testator’s intent may be flawed because the testator failed to organize his words in the commonly accepted manner.[46]

  1. The “in Light of Surrounding Circumstances” Approach[47]

The “in light of surrounding circumstances” approach continues the traditional deference to the words of a properly executed will document in a slightly different way.[48] By allowing courts to consider the meaning of a will’s language “in light of the surrounding circumstances,” this approach uses extrinsic evidence to determine a testator’s intent.[49] The court will then attempt to liberally interpret the language of the will and, to the extent possible, try to meet the intent evident from the extrinsic evidence.[50] In this way, the “in light of surrounding circumstances” approach challenges the traditional importance of the words of a formally executed will.[51] Yet, this approach still holds, at least to some extent, the words of a validly executed will above all other evidence.[52] Despite looking to extrinsic evidence for testamentary intent, the words of the will still serve as a check on the extrinsically determined interpretation of intent.[53]

The “in light of surrounding circumstances” approach attempts to tweak the will into actually yielding the intent of the testator, regardless, almost, of the strict meaning of the words of the will.[54] While bending the will’s language and meaning might best allow courts to find a testator’s intent, it also leaves open the possibility that a court’s analysis of fraudulent extrinsic evidence and the words of the will could lead to an interpretation of a testator’s intent directly opposite of her true intention. To this end, an analysis based in prescriptive grammar might facilitate such a fraud and allow a court to harmonize fraudulent extrinsic evidence with a reading of the will’s language that does violence to a testator’s true intention.

[1]     See, e.g., Pouser-Webb v. Pouser, 975 P.2d 704, 708 (Ariz. 1999) (“In attempting to ascertain the testator’s intent, we consider the text of the will as a whole and, when appropriate, the circumstances at the time it was executed.”); Newman v. Wells Fargo Bank, N.A., 59 Cal. Rptr.2d 2, 7

(Cal. 1996) (“Before resorting to legal presumptions [(construction)], however, . . . the court must attempt to ascertain the intent of the testator by examining the will as a whole and the circumstances at the time of execution.”); Mangines v. Ermisch, 705 A.2d 1025, 1027 (Conn. Super. Ct. 1997) (stating that a court will interpret the words of the will in light of the surrounding circumstances at the time of execution); Lehner v. Lehner’s Estate, 547 P.2d 365, 369 (Kan. 1976) (“The tools in aid of our search for the testator’s intention are the language contained within the four corners of the document, plus any extraneous circumstance surrounding its execution which assist in understanding his true intent and purpose.”) (citation omitted); In re Estate of Branigan, 609 A.2d 431, 436 (N.J. 1992) (“[I]n ascertaining the subjective intent of the testator, courts will give primary emphasis to his dominant plan and purpose as they appear from the entirety of his will when read and considered in the light of the surrounding facts and circumstances . . . .” (quoting Fidelity Union Tr. Co. v. Robert, 178 A.2d 185, 187 (N.J. 1962)); Orans v. Dousey, 695 N.E. 2d 1119, 1122 (N.Y. 1998) (“[I]ntent is to be ascertained, not from a single word or phrase but from a sympathetic reading of the will as an entirety and in view of all the facts and circumstances under which the provisions of the will were framed.” (quoting Matter of Fabbri, N.Y.2d 236, 240 (1957) (alteration in original)); Am. Cancer Soc’y v. Unruh, 559 N.W.2d 818, 822 (N.D. 1997); (“Courts must [interpret] a will to find the testator’s intent from full consideration of the will in light of surrounding circumstances.”); Wright v. Brandon, 863 S.W.2d 400, 402 (Tenn. 1993) (“The will is . . . to be interpreted in light of the circumstances in existence at the time of the will’s execution.”).

[2]     See supra notes 74-85 and accompanying text.

[3]     Sidney Greenbaum & Randolph Quirk, A Student’s Grammar of the English Language 3 (1990).

[4]     James Milroy & Lesley Milroy, Authority in Language: Investigation Language

PRESCRIPTION and STANDARDIZATION 1 (1985). The ideology underpinning prescriptive grammar involves certain assumptions about language. KATHRYN RILEY & FRANK PARKER, ENGLISH Grammar: Prescriptive, Descriptive, Generative, Performance 47-50 (1998). First, a prescriptive grammar assumes that a set of strict grammatical rules based on Latin grammars is an appropriate model for English. Id. at 47. Latin and English, however, “display significant structural differences that prevent a direct transfer of rules from one language to the other.” Id. at 48.

Second, prescription assumes that different English forms necessarily imply different meanings. Id. Indeed, “I leave,” “I am leaving,” “I will leave,” and “I am going to leave” can all convey slightly different iterations of a common theme; however, context, inflection, and customary usage can render those variations of meaning insignificant. Id., MILROY & MILROY, supra, at 62.

Third,—and perhaps most tellingly—prescription assumes that “[l]anguage change represents decay,” and that “older forms of the language are preferable and should be preserved.” RILEY & PARKER, supra, at 49. Language change, however, is natural, especially in English. Id. English has evolved from Old English to Middle English to Early Modern English to Modern English, and it continues to evolve today. Id. Latin, on the other hand, has remained unchanged for centuries primarily because of its status as the language of religion; in other words, in terms of language, Latin’s unchanging form is the exception rather than the rule. Id.

Finally, prescription assumes that language adheres to some sort of inherent logic. Id. Indeed, English is logical to the extent that “it is a self-contained, rule-governed system.” Id. But English is internally inconsistent, too.

[5]     C. M. Millward, A Biography of the English Language 242 (2d ed. 1996).

[6]     Id. Linnaeus had completed a “taxonomic classification system” for all living creatures, plant and animal. Id.

[7]    Id. at 242-43. Indeed, the English language, because of its pronounced lack of declensions and inflections, was considered less pure than the known—and highly inflected—languages of Latin and Greek. Id. at 242-43.

[8]     Id. at 243.

[9]    Id. These early English grammars included Jeremiah Wharton’s The English Grammar (1654) and Joseph Aickin’s The English Grammar, which cautions its readers that “you are not an English Scholar, till you can read, write, and speak English truly.” Id. (quoting JOSEPH AICKIN, THE ENGLISH Grammar 1 (1693)). See also supra note 88 and accompanying text.

[10]   Specifically, the standardization of English flies in the face of the dynamic history of the English language. Languages change all the time, sometimes dramatically—as in times of social and political upheaval—and sometimes imperceptibly. EDWARD FINEGAN & NIKO BESNIER, LANGUAGE: ITS STRUCTURE and USE 277 (1989). To freeze the progress of any language denies this reality.

[11]   MILLWARD, supra note 89, at 244 (quoting ROBERT LOWTH, A SHORT INTRODUCTION TO ENGLISH Grammar (1762)). Just as two negative numbers created a positive number when multiplied together, so do two negative words.

[12]   “I have yet to meet any speaker of any variety of English who on hearing Mick Jagger sing ‘I can’t get no satisfaction’ has entertained for one moment the belief he means the opposite.” DEBORAH Cameron, Verbal Hygiene 25 (1995). See also Milroy & Milroy, Authority in Language (1985), supra note 88, at 62 (“A socially neutral approach to this requires us to consider the possibility that multiple negation is an additional resource of speech and not a defect due to ignorance or illogicality.”).

[13]  Certainty of meaning is, of course, an important end of language standardization. MILROY & Milroy, Authority in Language (3d ed.), supra note 15, at 19. “The whole notion of

standardization is bound up with the aim of functional efficiency of the language. Ultimately, the desideratum is that everyone should use and understand the language in the same way with the minimum of misunderstanding and the maximum of efficiency.” Id. Even though speakers of different forms of English may have some difficulty understanding each other’s particular usages of the language in certain situations, Id. at 20, the ability for speakers of various forms of English to shift among different forms of English is common. MILROY & MILROY, AUTHORITY IN LANGUAGE, supra note 88, at 62. Although the removal of a nonstandard form of usage might increase efficiency, it might also mean “the loss of a device that could be used for emphasis [of meaning].” Id. Spelling reform served a similar purpose of standardization for efficiency’s sake without a concomitant improvement in conveyance of meaning. MILLWARD, supra note 89, at 232-35.

[14]   MILLWARD, supra note 89, at 245.

[15]  This might be best demonstrated by a quotation from a Roald Dahl short story: “Then suddenly, he was struck by a powerful but simple little truth, and it was this: That English grammar is governed by rules that are almost mathematical in their strictness! Given the words, . . . then there is only one correct order in which those words can be arranged.” RICHARD LEDERER, The MIRACLE OF LANGUAGE 11 (1991) (quoting Roald Dahl, The Great Automatic Grammatisator, in THE UMBRELLA Man and Other Stories 13 (1997)).

[16]     MILLWARD, supra note 89, at 213.

[17]    Descriptive linguists argue that each variety of English has its own “correctness.” EDWARD FINEGAN, ATTITUDES TOWARD ENGLISH USAGE: THE HISTORY OF A WAR OF WORDS 165 (1980). If this is so, any prescriptive grammar will necessarily omit the “correctness” of nonstandard forms of English to the detriment of any scholar—or any court—employing a prescriptive grammar to understand the language of a nonstandard speaker of English.

[18]    RILEY & PARKER, supra note 88, at 58-71. Descriptive linguistics is “concerned primarily with collecting and cataloguing data, rather than with establishing rules governing usage. Id. at 58. “[L]inguistic science . . . preserves a notion of grammar as ordered, hierarchical and rule-governed, but dispenses with tradition and authority as necessary components of its meaning. . . . [Descriptive linguistics describes a language] in which the rules are underwritten not by traditional authority but by internalized native speaker competence.” CAMERON, supra note 96, at 97.

[19]    RILEY & PARKER, supra note 88, at 58. See also, e.g., GREENBAUM & QUIRK, supra note 87, at 3. Greenbaum and Quirk’s grammar attempts to describe, in the aggregate, how people use the English language, although it recognizes that prescriptive grammars have sometimes pervasive influences on individuals’ approaches to grammar. Id.

[20]     Riley & Parker, supra note 88, at 58.

[21]     See supra notes 50-65 and accompanying text.

[22]     See supra notes 87-100 and accompanying text.

[23]     See supra notes 74-75 and accompanying text.

[24]     See supra note 75 and accompanying text.

[25]     See supra notes 31-40 and accompanying text.

[26]     See supra notes 50-65 and accompanying text.

[27]     See supra notes 58-62 and accompanying text.

[28]     See supra notes 41-42, 57-58 and accompanying text.

[29]     See supra note 65 and accompanying text.

[30]     For example, one testator’s handwritten will read as follows:

To you—

Cornie and Richard Ostercamp my all and may all to you[.]

Osterkamp v. Weeks, 250 N.W.2d 286, 287 (S.D. 1977).

Despite the absence of any verb in the document, the court found “the phrase ‘to you’ indicative of an intent to pass property.” Id. at 289.

Another testator’s will—handwritten on a piece of company stationary with numerous additions and illegible scratchings—gave “one payment of $1000.00 from [(sic)] Patricia Chalgren as final settlement.” Babcock v. Watson, supra note 74, at 759. In the very next sentence, the testator asked that his property be deeded to Patricia, too. Id. The court had to decide the meaning of “as final settlement.” Id. at 763-64.

Yet another testator’s will read as follows:

On this day July 7

I Gloria Franklin leaves everything to Terry & Jess Waltman in

I Gloria Franklin leaves everything I own inclouding farm, vehickles everything to Jess & Terry

Waltman in case I die on my way to & from Jersey.

In re Estate of Franklin, 2001 WL 896635, 1 (Tenn. Ct. App. 2001).

[31]     See supra notes 87-104 and accompanying text.

[32]     See supra notes 76-78 and accompanying text.

[33]     See supra note 78.

[34]     See supra notes 50-65 and 78 and accompanying text.

[35]     See supra note 57 and accompanying text.

[36]    See, e.g., Firstar Trust Co., supra note 78. In Firstar, the court recognized that it should interpret the language of the will according to its ordinary and natural meaning unless the whole of the will suggested that the intent of the testator was otherwise. Id. at 471.

[37]    See, e.g., Snyder, supra note 78. The Snyder court recognized that the court could go beyond a word-for-word consideration of the ordinary and natural meaning of the terms of the will in order to determine the testator’s intent. Id. at 240-41.

[38]     See supra notes 50-66 and 78 and accompanying text.

[39]     See supra notes 78, 120, and 121 and accompanying text.

[40]     See supra notes 87-100 and accompanying text.

[41]     See supra notes 79-81 and accompanying text.

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

[43]     See infra note 128 and accompanying text.

[44]    See, e.g., In re Lanart’s Estate, supra note 81. One might note that the “objective” analysis required under the “words of the will” approach and the “ordinary and natural meaning” approach to will interpretation seems to require a prescriptive analysis of a testator’s grammar, as an analysis based on an outside standard is the essence of objectivity. While the “liberal interpretation” moves away from requiring an objective analysis of the testator’s language, a court’s analysis may still very well be based in a prescriptive grammar. Indeed, prescriptive grammars are convenient tools for analysis and they prevail in common usage in American society. Most importantly, the “liberal interpretation” approach still forbids extrinsic evidence of any sort. See supra notes 79-81 and accompanying text. Consequently, no evidence of a testator’s personal grammar could ever inform a court’s analysis under this approach.

[45]     See supra note 128 and accompanying text.

[46]     See supra notes 87-100 and accompanying text.

[47]     See supra notes 82-85 and accompanying text.

[48]     See supra notes 50-66, 82-85 and accompanying text.

[49]    See, e.g., In re Estate of Branigan, supra note 85, at 437 (determining the testator’s intent with reference to extrinsic evidence of the prevailing estate tax laws).

[50]     See supra note 133 and accompanying text.

[51]     See supra notes 63-65, 79-81 and accompanying text.

[52]    Lehrer v. Lehrer’s Estate, supra note 85, at 368 (“Proper resolution of the issue raised by the parties depends on the construction to be given to the controlling language found in the will.”).

[53]    See supra note 85 and accompanying text. Theoretically, at least, this approach allows a court to use extrinsic evidence to determine the testator’s intent, while simultaneously holding that the language of the will cannot be interpreted to effect that intention. This paradox puts an important theoretical limitation on the efficacy of this approach; it also holds the approach closer to traditional models than it might appear on its face. In the end, however, no courts utilizing the “in light of surrounding circumstances” approach have actually found that the language of the will did not support the extrinsically determined intent of the testator.

[54]     See, e.g., In re Estate of Branigan, supra notes 85 and 134.