Reflecting on the Language of Death

• Publication year: 2010
• Citation: Vol. 34 No. 02

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 34, No. 2WINTER 2011

Reflecting on the Language of Death

Deborah S. Gordon(fn*)

it will be short, it will take all your breath it will not be simple, it will become your will(fn1)

The "Last Words" of great men, Napoleon, Lord Byron, were . . . printed in gift books, and the dying murmurs of every common man and woman were listened for and treasured by their neighbours and kinfolk. These sayings, no matter how unimportant, were given oracular significance and pondered by those who must one day go the same road.(fn2)

I. Introduction

Consider the following scenario: A seventy-five-year-old woman visits her estate planning lawyer to execute her will. The instrument she is given to sign directs the woman's executor to distribute the woman's primary asset, a small farm, to her eldest daughter and to make token financial gifts to her other two children.(fn3) The balance of the will contains detailed administrative provisions, including a standard forfeiture clause that bars anyone who challenges the will from taking under it.(fn4) In accordance with her lawyer's advice, and because the instrument seems situated to achieve the woman's donative intent, she executes it. She leaves her lawyer's office with a technically proficient will poised to cause divisiveness among her surviving family members.

There is, of course, more to this story. The woman has explained to her lawyer that she and her late husband purchased the farm when they married, and that together they cultivated it into a small but profitable business that helped finance the educations of their children. The woman's eldest daughter, who lives nearby, helps run the farm. The woman's son moved to a nearby city, where he manages a commercial real estate company, and her youngest daughter lives out of state, where she practices medicine. The woman concedes that the farm is more valuable for its real estate than as an operating business, but her primary goal is to preserve the legacy that she and her husband built together. Although she loves her children equally, the woman has expressed to her lawyer her belief that she will achieve her goal by leaving the farm outright to her eldest daughter.(fn5) The lawyer has cautioned against incorporating any of this explanation into the will itself. Opining that the document serves its purpose by transmitting the woman's property as she intends, the lawyer advises that any more expressive, descriptive, or unusual language, any recounting of this alternative story, is unnecessary and may provide grounds for a challenge by one of the disadvantaged beneficiaries. The woman ends up executing a will that reflects her specific wishes but does nothing to put them in their fundamental context.

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 wills are written in an insider's private language, so that testator after testator exclaims about the formal, dry, legalistic, and sometimes archaic writing at the will-execution ceremony.(fn6) If all written communication has meaning(fn7) and if all legal writing has enhanced meaning because it also has a real-world effect,(fn8) then imagine the potential of legal writing that embodies an individual's "last words." 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.(fn9) And even if the will is simple and mundane, its terminal nature imbues the will with talismanic power.

This Article argues that a more expressive and expansive approach to will drafting-one which incorporates important components of the testator's life story-has value not only as a means of incorporating the testator's voice, but also as a means of addressing the problems of interpreting dry, technical language. The term "expressive language" for the purposes of this Article refers to writing that departs from formula and enhances the nonlinguistic function of the document provisions.(fn10) While I recognize that an extensive literature discussing the "expressive" function of the law exists, I do not intend to invoke that literature in this Article because it is concerned with entirely different goals.(fn11)

A study of how wills are written, and specifically whether a place exists for expressive language and personal narrative in testamentary documents, is long overdue. Although the force of narrative in the law has been widely recognized, only a few scholars in recent years have explored its place in transactional, and specifically testamentary, docu-ments.(fn12) In addition, this Article's approach to the law of wills fills a vacuum in the current substantive wills scholarship, which focuses almost exclusively on will interpretation rather than will creation.

As Part II explains, nearly every discussion of wills law begins with the familiar maxim that a testator's donative intent is the "polestar" that guides interpretation of testamentary documents.(fn13) Despite this basic agreement, scholars have opined at length about the difficulty-even impossibility-of divining authorial intent from written language gener-ally(fn14) and from wills in particular.(fn15) The existing scholarship ultimately fails to improve wills law because it addresses only the reading of wills, relegating writing considerations to the practicing bar.(fn16)

Part III explores the benefits and costs of incorporating expressive language into wills.(fn17) This Part argues that including explanations, descriptions, and purpose provisions in a will provides a testator with the opportunity to express her individualism and thereby create a testament to her beneficiaries, even if such language is not necessary to the will's dispositive or nonlinguistic functions.

Then, Part IV tests the concern that testators and their beneficiaries would suffer a legal disadvantage from a more expressive approach to wills language by surveying cases in which wills are challenged on the grounds of undue influence. These cases from the past five years provide examples of how language is currently used in wills and how courts respond to that language. Contrary to expectations, the case law supports the idea that directly infusing wills with individualized, expressive, and what some might call "extra" language better insulates them against chal-lenges.(fn18)

Based on this foundation of theory, analysis, and case studies, Part V concludes that deliberate focus on a will's language to enhance the accepted and well-tested "linguistic formulae"(fn19) can help people make more mindful choices about their legacies and change how those legacies are conveyed to and understood by a will's many readers. Far from a luxury, encouraging a testator to express herself in her will 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 as she intends and desires.

II. How the Long-Standing Scholarly Debate About Interpretation Omits a Crucial Inquiry

In the bundle of property rights encountered by every first-year law student is the power to convey one's property at death, also known as the freedom of disposition.(fn20) If this power is not exercised, a person dies intestate (or without a will), and default rules dictate how and to whom her property passes.(fn21) Properly exercised, this power allows a decedent to die content that her loved ones, the "natural objects of her bounty,"(fn22) will receive her treasures and thereby benefit from her generosity and care either at the moment of her death or, if a trust is in place, over time.(fn23)

How best to interpret and understand the testator's intent as it is conveyed in her will has been the subject of a long-standing debate,(fn24) one unlikely to end soon.(fn25) One reason for the interest in will interpretation is that the author of a will is necessarily unavailable to describe the meaning of ambiguous or controversial sections when the text takes its effect.(fn26) Another reason is that the individualized nature of testation means that precedent often is useless to guide understanding of a particular testator's language or donative intent.(fn27) A third reason for the interest is simply that death, with all of its human drama and details, is an area of the law with wide-scale impact.(fn28)

This Part first briefly surveys some of the leading contributions to the debate about donative intent, then highlights how the discussions neglect to address the writing, as opposed to the reading, of wills. Notwithstanding a wealth of debate about interpretation, only a few scholars in recent years have considered whether testators should include more varied and expressive language, more personalized stories, in their wills.(fn29) Legal scholarship, and the areas on which it chooses to focus, shape not only intellectual debate but also pedagogical and practical approaches to the law. By assuming that competent lawyers draft valid wills, which in the "overwhelming majority" of instances will never be contested or questioned,(fn30) and by failing to consider proposals for how wills might be written better or at least...