Frustrating the Intent of the Testator

A client told me the other day that her mother wanted her estate to be divided only among her living children. If one of the mother’s children died before she did, that deceased child’s share was to be shared by the other living children, not passed down to the offspring of the deceased child.

This is a fairly unusual distribution scheme. Most folks would want the offspring of a deceased child to receive a share of their estate, but this daughter had heard her mother clearly say otherwise. She and her mother also believed that the mother’s will reflected this intent. However, I found the opposite when I looked at the will. There I found two Latin words that neither my client nor her mother understood: per stirpes.

The expression “per stirpes” literally means “by branch.” In this context, it causes the estate to be distributed not just to surviving children, but also to the surviving offspring of deceased children. The client’s mother either did not make her wishes clear to the attorney who drew up her will or the attorney was not listening. Either way, the will was the opposite of what the mother wanted and because the most important words were in Latin, the mother did not know it.

Assume that one of the children died, survived by one or more of her own children. No U.S. or U.K. judge would listen to testimony that the mother intended only her surviving children to share in her estate. The judge would rule that the mother’s intent was clearly expressed by the document and that the grandchildren by the deceased child would share in the estate. The “clear intent of the testator (person who writes a will)” as interpreted by a common-law judge is one of the strangest birds in the legal aviary.

Time after time, anyone who studies probate cases finds decisions that are bizarre. The judge will take language that any normal person would think meant that the testator wanted her estate to go to A and decide that “the clear intent of the testator” is for the estate to go to B. In order to determine “the clear intent of the testator,” the judge looks to cases decided decades, if not centuries, in the past, that no one but a law clerk with obsessive-compulsive disorder and a 195 IQ would ever find or understand. That a judge would find “the clear intent of the testator” in arcane legal subtleties that the testator would have zero chance of knowing about, let alone understanding, is a cosmic joke.

In one such case, the Kentucky Court of Appeals was confronted with a will that carefully divided the estate three ways: half to the son, a quarter to the daughter and a quarter to the daughter’s children. However, the court managed to interpret the will so that it only pertained to the income from the property and did not distribute the property itself. As a result, the court awarded the property to the son and daughter, equally. In making this ruling, the court stated, “While the purpose of construction, as applied to wills, is unquestionably to arrive at the intention of the testator, that intention is not that which existed in the mind of the testator, but that which is expressed by the language of the will.” Calloway v. Calloway, 188 S.W. 410, 411-12 (Ky. App. 1916). In other words, the court will not bother to figure out what you understood your words to mean, but will apply legal rules that baffle many lawyers to determine the legal effect of your words. What makes Calloway particularly ironic is that the quoted sentence comes from another Kentucky case. Caldwell v. Caldwell, 7 Bush 515, 1871 WL 10267 (Ky. App. 1870).

In Caldwell, a father left a farm to five sons, with a verbal instruction to give it to a sixth son who was serving in the Confederate Army, if he should survive and be able to hold property. The father was concerned that Confederate veterans might be unable to own real property as a result of their service. The court had no problem using evidence outside the will to find a resulting trust and award the farm to the Confederate veteran. One wonders if the result would have been the same if the sixth son had been a Union soldier. Calloway and Caldwell show how arbitrary the results in probate cases can be.

On occasion, a judge will look at a will that was clearly written and undeniably signed by the testator, but throw it out because of an irregularity in the signing ceremony. One such case occurred in Idaho.

Edward McGurrin called his secretary, Cindy Rood, to the hospital where he was a patient and dictated a will. She typed the document from her dictation notes and delivered it to the hospital. The next day, after the will had been signed, McGurrin asked her to have her mother and sister sign it. Rood did so and brought the fully signed will to McGurrin. He had Rood get her mother and sister on a hospital telephone. When they were on the line, McGurrin thanked them for “witnessing” his will. The Idaho Court of Appeals held that McGurrin’s will was invalid because McGurren and the witnesses were not together in the same place, at the same time, when the will was signed. None of the parties was arguing that the will was not signed by McGurrin, or that he did not intend for the document to be his will. Matter of Estate of McGurrin, 113 Idaho 341, 743 P.2d 994 (Id. App. 1987).

These cases demonstrate the strange way justice is delivered in U.S. probate courts. Judges rendering decisions in civil cases over injuries or contracts are more rational. They tend to look at the facts and apply the law in a reasonable manner. Probate judges, and appellate courts reviewing decisions on wills and trusts, sometimes go to great lengths to devise legal reasons to frustrate what the decedent clearly wanted. For this reason it is extremely important to have legal documents, particularly estate-planning documents, drawn up by an experienced estate-planning attorney, not your bank teller. It is also important for that attorney to take the time to explain how the plan will work, in detail.

An attorney should spend at least an hour gathering the facts for even the simplest estate, and at least an hour going over the documents with the client, before they are executed. Attorneys who rush through will executions do not serve their clients properly. Poorly drafted or misunderstood documents can create a nightmare for the family when the estate gets to probate court.


John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
©2010 John B. Payne, Attorney

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