Using Three Words When One Will Do (and in this case, do better)

Lawyers are often derided for using “legal language” or “lawspeak.” In many instances, the derision is unjustified. Lawspeak is often necessary to ensure clarity – at least, clarity for when clarity is in the eye of the beholder.

Much lawspeak or legal jargon was developed over the centuries when the only people who could read and write were likely to be lawyers and judges and maybe the royals, or some of them anyway. So, understanding lawspeak was not important to lawyers’ clients—most of whom couldn’t read their wills anyway—but the judges of the probate courts who would be called upon to construe those wills.

So the lawyers and judges made up terms and phrases to apply to legal concepts. Thus, the legal community came to use the Latin phrases “per stirpes” and “per capita” to allow the maker of the Will (the “testator”) to answer this very important question “if the person named in the Will to get the property predeceases the testator, who gets the estate?”

In other instances, lawspeak is harmless and has essentially no meaning at all. For example, a legal document might begin:

KNOW ALL MEN BY THESE PRESENTS

and continue

That I, the undersigned, John A. Doe, do hereby make, constitute, and appoint Mary B. Doe my true and lawful attorney-in-fact for me and in my name, place, and stead, and for my behalf and benefit …

The initial “Know All Men” has no legal significance and is nothing more than a legal clearing-of-the-throat, so to speak; while the subsequent language, while necessary, could be more clearly and just as “legally” phrased this way:

I appoint Mary B. Doe to be my attorney-in-fact.

Suppose, back in those days when very few people were literate, to answer that very important question the lawyer deviated from using “per stirpes” or “per capita”? By doing so, he did at his (and his client’s) peril: he risked confusing the judge, who would then be called upon to answer this question: “why did the lawyer write it that way, and not write lawspeak instead?”

Deviating from lawspeak can therefore by costly. At the same time, the unwitting use of lawspeak when plain language is not only more than adequate but necessary can be costly. As in the probate estate of Margaret L. Swift, who died in Shelby County, Tennessee, on September 19, 2008, with no surviving spouse, no surviving parent, and never had children.

In 1984 she executed a Will while a resident of Delaware. At that time, Mrs. Swift was married. By 2008, both her husband and her cousin Henrietta were dead, so the probate court was tasked with answering that very important question: who gets the estate?

The Shelby County Probate Court held that, even though the Will named other family members to get something, she died intestate – in short, the same as if she had not executed a Will at all.

How could that have happened?

The case was appealed to the Tennessee Court of Appeals.

If Mr. Swift predeceased her, Mrs. Swift “devised” her estate to her cousin Henrietta. In her 1984 Will, the phrase “give and devise” is used 14 times; as the majority opinion of the Tennessee Court of Appeals observes, the term “devise” is a legal term that traditionally applies only to real property whereas the term “bequeath” traditionally applies only to personal property. The recipient of real property is a “devisee,” and of personal property a “legatee.”

In her Will, Mrs. Swift stated that a “devisee” who predeceased her “shall not share in my estate.”

At the time she made her Will, Mrs. Swift did own real estate but at her death she did not.

The parties to the appeal therefore argued over whether Mrs. Swift intended to leave real estate only to Henrietta. (That is, Henrietta was a “devisee.”)

Or whether “give and devise” includes all of the estate. (That is, Henrietta was not just a devisee but a … legatee too?)

The majority opinion spurred a “vigorous dissent” from Presiding Judge Alan Highers, who pointed out that if Mrs. Swift intended anything at all, she “clearly evidenced an intent to die testate.” Why else did she write a Will?

It is all very confusing.

Could the confusion have been avoided if the drafter (presumably, a lawyer) had simply used the word “give” instead of the phrase “give and devise”? Did the lawyer know that “devise” applies only to real property? When the phrase “I give and devise the above property to my cousin Henrietta” was used, did that mean real property only or the entire estate?

The majority opinion can be viewed online at http://www.tsc.state.tn.us/sites/default/files/swiftmlopn.pdf

The dissenting opinion is here: http://www.tsc.state.tn.us/sites/default/files/swiftmargaretestateofdis.pdf

In re Estate of Margaret L. Swift, November 20, 2012.
 

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