Document Type

Article

Publication Date

Spring 2021

Abstract

The will is one of the most personal legal documents that an individual may ever create. The will is written in first person, present tense. Yet most wills reveal little of the person, the personality, or the personal. The inclusion of the testator’s relationships with people, entities, and property does little to convey the testator’s wishes, hopes, or fears. Some may assert that as a formal legal document, the will should be impersonal and be built using standardized, formulaic phrasing. Not only does such position overstate the accuracy of standardized, formulaic phrasing, but such position also ignores the foundational principle of succession: intent.

Intent is a foundational principle that is referenced in many varied aspects of succession. This article will focus on the role of intent in will construction proceedings where intent is referred to as the “touchstone” and “pole star.” When an issue arises as to the meaning of a provision in a will admitted to probate, the probate court must undertake a construction proceeding. Interpreting intent can and does pose problems as courts must seek to divine actual intent when the language of the will reveals little of the individual testator. All too often, courts must fall back on principles developed from attributed intent because the language of the will does not provide sufficient direction. Attributed intent, also referred to as presumed intent, is by its nature an approximation of what some decedents would like. Depending upon the circumstances and jurisdiction, the court may admit extrinsic evidence to facilitate the inquiry into actual intent. Such extrinsic evidence may be fragmentary and contradictory leading to wooden constructions or construction of false narratives.

This article posits that a will naturally forms a narrative that courts use when interpreting and construing the language of the will. This natural narrative form and tendency for courts to reference narrative during construction proceedings can be more effectively leveraged by the willdrafter in a manner that is consistent with succession’s intent-serving policies. When the drafter approaches the will as a narrative and uses narrative techniques to inform the customization of what may be one of the oldest forms of legal documents, the resulting document becomes more meaningful for the testator, the beneficiaries, the personal representative, and, if needed, the court. To illustrate, this article presents standard will construction cases and ways to revise the problematic testamentary language using narrative-based drafting techniques.

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