The Secret Life of Testamentary Schemes

Abstract

The testamentary scheme, a poorly understood interpretative tool used by courts to determine the meaning of a will’s dispositive provisions, is insufficiently theorized in both case law and scholarly commentary. Based on a painstaking study of testamentary schemes in context, in this article I raise and defend three propositions: (1) a testamentary scheme is a dominant purpose that is intrinsic to the will; (2) a testamentary scheme is most appropriately used (a) to bring plain language into sharper focus or (b) to fill omissions in dispositive provisions; and (3) if a testamentary scheme can do either (2)(a) or (2)(b), there is no need to resort to evidentiary presumptions.

Keywords: wills, testamentary intent, testamentary scheme, testamentary plan, testamentary purpose, will interpretation, plain meaning, ambiguity, extrinsic evidence, will construction, gifts by implication, omissions, invalid provisions