Scott T. Jarboe

Washington University School of Law

  • Proposal: The Descriptive Grammar Approach

The four approaches discussed above all fall short of true efficacy in determining and achieving true testamentary intent[1] while adhering to the traditional emphasis placed on the inviolability of the language of the will.[2] Indeed, they each focus too much on one policy issue or the other. Moreover, the approaches all face the possibility of failing due to a faulty prescriptive analysis of the language in front of them.[3] A better approach involves looking outside the will to extrinsic evidence, not for the testator’s intent, but for the meaning of the words used by the testator in the validly executed will document.

This extrinsic evidence takes the form of a body of writings, testimony, and expert analysis sufficient to construct a descriptive grammar of the testator’s use of the English language. Parties would present evidence specially tailored to answer questions of interpretation for particular passages of the will document, and the evidentiary process would provide the information necessary for the court to make its decision. The court would then use its understanding of the testator’s descriptive grammar to interpret her intent from the actual words of the will.

The “descriptive grammar” approach best balances the competing policy interests of testamentary intent and deference to the will’s language. It continues to recognize the important fraud-avoidance function served by using only the language of a validly executed will as the basis for determining testamentary intent. Because extrinsic evidence informs the court only about the meaning of the testator’s words and not his intent, this process is very unlikely to introduce fraudulent information of intent directly into the court’s decision. Moreover, because of the encompassing nature by which the descriptive grammar is compiled, any fraudulent material introduced into evidence as indicative of the testator’s grammar would quickly be identified as an outlier and dismissed from the greater body of knowledge about the testator’s use of language. Finally, much of the extrinsic evidence that would surely inform the collection of a descriptive grammar—letters, recordings, diaries—does not easily lend itself to fraud, especially as it applies to the compilation of a descriptive grammar.[4] The “descriptive grammar” approach also does a fine job of discovering a testator’s true intent. A descriptive grammar’s specificity to the testator and her use of the English language creates conditions whereby the likelihood of discovering a testator’s true intent is very high.

One possible limitation to the efficacy of this approach occurs when the will includes some omission, mistake, or true ambiguity. If any of these situations exists, no interpretation will be possible. A descriptive approach to interpretation will help confirm these ambiguities, which then might convince the court to look to extrinsic evidence of intent on the basis of ambiguity in the will’s language. Another possible limitation of this approach arises when the testator’s writing, even when correctly interpreted, does not effectuate her intent.[5] What to do with a poorly written will, perhaps, is the puzzle that cannot be resolved through application of the approaches here analyzed. Common sense might suggest looking outside the will to extrinsic evidence of intent to determine whether the will was written in a way that conveyed a meaning contrary to the testator’s intent. The struggle between discovering intent and protecting the will against fraud recurs here. History has chosen to include protections against fraud in the interpretation equation, and the “descriptive grammar” approach maintains these precautions.

Creating a descriptive grammar for each testator whose will needs interpretation promises to be an expensive and time-consuming endeavor. Probate courts will become havens for highly paid expert witnesses, and professors of grammar will line their bank accounts with fees. Moreover, probate judges will encounter more evidentiary collection than ever, and dockets will clog. Even with all of this potential trouble, however, the “descriptive language” approach to will interpretation is still a viable option because of its potential upside. Courts can determine specific testamentary intent confident that they are honoring both the policy of determining a testator’s intent above all else and the policy of relying on the words of the will to determine that intent.

  1. Conclusion

The Anglo-American legal system’s age-old emphasis on determining a testator’s intent as expressed in a will document while protecting against misrepresentation of that intent is an exacting standard. American courts’ various approaches to meeting both requirements all fail, to some extent; either the approach breaks from the protective procedures surrounding the admission of extrinsic evidence of intent, or the approach fails to consider that speakers of English seldom use language in narrowly proscribed and easily ascertainable ways. Courts should analyze the language of testamentary documents from a descriptive linguistics perspective. By admitting extrinsic evidence of language usage, a court can protect the will document from tampering while more closely determining what the decedent truly intended.

Scott T. Jarboe[6]

[1]       See supra notes 107-38 and accompanying text.

[2]       See supra notes 107-38 and accompanying text.

[3]      See supra notes 107-38 and accompanying text. A few courts employ a personal use exception to allow extrinsic evidence of a testator’s intent. Cornelison, supra note 1, at 825. (“The personal usage exception allows courts to give effect to the testator’s personal vocabulary and permits extrinsic evidence to show that the deceased habitually used certain words or phrases idiosyncratically [even when the will’s language is not ambiguous].”) (quoting Joseph W. deFuria, Jr., Mistakes in Wills Resulting from Scrivener’s Errors: The Argument for Reformation, 40 CATH. U. L. Rev. 1, 22 (1990) (internal quotation marks omitted)). Id.

Although the personal usage exception parallels the descriptive linguistics approach in its ability to consider an individual testator’s use of language, it still does not address the problem directly enough. Note that the personal usage exception considers “idiosyncratic” uses of language. Id. As described above, supra notes 102-04 and accompanying text, the descriptive grammar approach recognizes that there are no “idiosyncratic” uses of language; rather, there are merely uses specific to the testator. The difference is palpable in determining when to look to extrinsic evidence. Under the personal usage exception, a court will look to extrinsic evidence only when the testator’s usage is recognized as potentially outside the bounds of standardized usage. Cornelison, supra note 1, at 825. Because the descriptive linguistics approach considers all of the testator’s language usage, it does not omit consideration of any usage that is particular to the testator.

[4]       For example, simply falsifying a letter from the testator would likely not be enough to perpetrate a fraud on the creation of a descriptive grammar. The person who falsified the document would likely need to understand the intricacies of grammar, and the element of evidentiary value would need to harmonize with the grammatical construction of the rest of the document. Additionally, the body of evidence would likely render one falsification an outlier, requiring fraud on a mass and informed scale to effectively disrupt the creation of a descriptive grammar.

[5]      In other words, a testator wrote a sentence: “I bequeath to my mother a life estate in my property and a specific testamentary power of appointment over the same property.” If the testator misunderstood the effect of the language to mean that her mother could appoint the property to her estate, the Descriptive Grammar Approach would not provide evidence to show the testator’s true intent because the testator is likely never to have used this language before in her life.

No approach short of one that allows for consideration of all extrinsic evidence, however, could implement the testator’s true intent. Moreover, an approach allowing the consideration of all extrinsic evidence would raise the possibility of misrepresentation of a testator’s intent. See supra notes 53-57 and accompanying text.

[6] B.A. in English, 1996, University of Kansas; M.A. in Curriculum and Instruction, 1999, University of Missouri, Kansas City; J.D. Candidate (2003), Washington University School of Law. I would like to thank Professor James Hartman of the University of Kansas for his recommendations on readings in descriptive linguistics. And I thank my wife, Aimee Wittman, for her love, support, and excellent editing skills.