Speaking for the Dead: Voice in Last Wills and Testament
72 Pages Posted: 21 Nov 2013
Date Written: January 19, 2011
A will is arguable the most important and personal legal document an individual ever executes. 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 plans for the continued care of loved ones and loved charitable causes. Despite the personal importance of the document and abundant self-referencing, 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. 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 those 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 appropriate injects the individual's voice into the will while ensuring that the will continues to be both substantially accurate and operative.
Keywords: Wills, Estate Planning, Voice
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