Academic

Gordon on the Language of Wills

By Lawrence Solum

Deborah S. Gordon (Drexel University - Earle Mack School of Law) Reflecting on the Language of Death (Seattle University Law Review, Forthcoming) on SSRN. Here is the abstract:

For centuries, wills scholars have lamented the difficulty of discerning intent from testamentary documents but have failed to examine how these documents might be written differently. A will can reflect and reinforce the decedent?s relationships with friends and family, can express support for institutions and causes in which the decedent believes, and can establish the decedent?s lasting legacy. And even if the will is simple and mundane, dealing only with the decedent?s personal possessions or naming her fiduciaries, its terminal nature imbues the will with talismanic power. Often the final significant written communication by its author, a will has the potential to be a monument ? or indeed a testament ? to the decedent?s loved ones, to express her vision for the future or her version of the past. More often than not, however, today?s will is written in an insider?s private language, so that testator after testator exclaims at her will execution ceremony about the formal, dry, and sometimes archaic, legalistic writing. Is this necessary?

This article explores the advantages and pitfalls of infusing wills with expressive language. Legal scholars have widely acknowledged the power and resonance that personal narratives bring to briefs, judicial opinions, and other persuasive legal writing. This scholarship has suggested the critical role of narratives in giving meaning beyond mere rules and doctrine. Remarkably, given the intense emotional aspects of death, scholars have largely ignored the role of expressive and individualized language in wills. This article takes seriously the ways in which such language might enhance the meaning and significance of transactional documents, such as wills.

After exploring the costs and benefits to testators, beneficiaries, fiduciaries, courts and society of expressive will drafting, this article argues that encouraging a testator to use richer, more varied language can actually help the testator focus on her own intentions and then communicate those intentions to the people she leaves behind. Moreover, this article rejects the argument that including apparently ?unnecessary? language in a will inherently result in more litigation. Rather, it suggests that expressive language has the potential to avert litigation and, when contests do occur, facilitate the court?s analysis of the challenged instrument. Far from ?unnecessary,? the inclusion of expressive language in a testator?s final will and testament can strengthen the testator?s connection to her personal identity and her community, an important step in furthering the ultimate goal of having her property pass effectively as she intends and desires.

Full post as published by Legal Theory Blog on November 05, 2010 (boomark / email).