I do now hereby give, bequeath, and devise all items of tangible personal property that I own or may own a right thereonto, which includes, but is not limited to, objet d'art, furnishings, automobiles, and silver, to my surviving issue per stirpes.
A will is arguably the most important and personal legal document an individual ever executes. As the language above illustrates, much of the typical language in a will removes all traces of the individual. This personal legal document is ostensibly the individual's-the testator's-document. For a testator, contemplating the creation and execution of a will is the contemplation of the testator's own death. The resulting document memorializes the individual's personal wishes and hopes for individuals and entities that are important to the individual. The document addresses the individual's property, which many individuals view as an extension of themselves. The document plans for the continued care of loved ones and loved charitable causes. Despite the personal importance of the document and abundant self-referencing-the use of "I," "me," "my," and "mine"-the individual is not typically the document's author. Instead, an attorney drafts the document, facing the challenge of writing a personal document by invoking particular language that ensures the legal fulfillment of the individual's wishes. The typical result is a document that, despite the self-referencing, bears little resemblance to words used by the testator, such as in the example above. "Hereby;" "give, bequeath, and devise;" and "issue" are but a few examples of words that regularly appear in wills, yet are words that would not actually be spoken by the individual. Thus, what is the most important and personal legal document may ironically convey little of the individual testator. The absence of the individual's voice-or worse, the assumption of a "false" voice-diminishes the estate planning experience from the individual's perspective and results in a flat document that may not effectively convey the individual's wishes in a manner that is absorbable by the individual's family and beneficiaries. As a result, a will is "more likely to be the subject of litigation than any other legal instrument." In order to maximize the estate planning experience for the individual and implement the will's directives, the draftsperson can craft a persona that alludes to the individual testator's personal voice and yet ensures that the document is substantively accurate and operative. The perceived absence of the individual testator's voice may provoke challenges to the will, damage family relationships, and tarnish the individual's legacy. Traditional devices, such as in terrorem clauses, have proved little help to address the rising tide of litigation and the underlying reasons for the litigation.
This Article examines voice in wills. First, this Article considers the function of wills and the continued importance of the will in the age of will substitutes. Second, this Article explores the concepts of voice and persona, including the applicability of these terms to wills. Third, this Article analyzes voice in wills by contemplating voice in both non-attorney drafted wills and attorney drafted wills. Fourth, this Article highlights five opportunities that enable the draftsperson to consciously craft a persona that appropriately injects the individual's voice into the will while ensuring that the will continues to be both substantively accurate and operative.
Karen J. Sneddon, Speaking for the Dead: Voice in Last Wills and Testaments, 85 St. John's L. Rev. 683 (2011).