A Taxonomy of Testamentary Intent

48 Pages Posted: 6 Apr 2015 Last revised: 12 May 2016

See all articles by Mark Glover

Mark Glover

University of Wyoming College of Law

Date Written: April 5, 2015

Abstract

Testamentary intent is consistently heralded as the cornerstone of a will. Moreover, judges and scholars explain that the decedent’s intent should guide probate courts as they supervise the distribution of the decedent’s estate. But despite the importance of testamentary intent within the law of wills, a clear and consistent testamentary intent doctrine has failed to develop. Courts frequently espouse the significance of testamentary intent without explaining what testamentary intent is, and when they do give more detail regarding the meaning of testamentary intent, their explanations are often vague and at times confusing and contradictory. Likewise, legal scholars have done little to untangle the specifics of testamentary intent.

The lack of a clearly defined testamentary intent doctrine has caused both practical misapplication and theoretical misunderstanding of various aspects of the law of wills. The need for a clear understanding of testamentary intent will continue to grow as the law of wills moves away from formalistic approaches to the validation, interpretation, and construction of wills and toward approaches that grant courts greater discretion to decide issues related to the decedent’s intent. Without a firm grasp of testamentary intent, greater judicial discretion could lead to inconsistent and unpredictable outcomes, thereby promoting costly probate litigation.

The goal of this Article is therefore to cultivate a better understanding of testamentary intent. It pursues this goal by developing a taxonomy of testamentary intent that clearly distinguishes the primary issues related to the court’s task of fulfilling the intent of the decedent and that identifies the major rules and doctrines that courts should apply when deciding these issues. With this taxonomy in place, a more consistent testamentary intent doctrine might emerge and a deeper understanding of the role of the decedent’s intent within the law of wills can develop.

Keywords: Testamentary Intent; Wills, Trusts & Estates

Suggested Citation

Glover, Mark, A Taxonomy of Testamentary Intent (April 5, 2015). 23 George Mason Law Review 569 (2016). Available at SSRN: https://ssrn.com/abstract=2590209

Mark Glover (Contact Author)

University of Wyoming College of Law ( email )

P.O. Box 3035
Laramie, WY 82071
United States

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