Judicial Discretion and the Disappearing Distinction between Will Interpretation and Construction

38 Pages Posted: 7 Feb 2006

See all articles by Richard F. Storrow

Richard F. Storrow

City University of New York School of Law


In its recently completed Restatement (Third) of Property, Wills and Other Donative Transfers, the American Law Institute determines that the distinction between will interpretation and will construction is no longer tenable. The distinction has been prominent in the American will interpretation tradition. It holds that when a will's language is not plain, courts may consider extrinsic evidence for the purpose of resolving ambiguities arising from, for example, problems identifying the named beneficiaries or the described property. If such interpretation fails to reveal the testator's intent and ambiguity persists, courts then resort to rules of construction - presumptions that allow a court to attribute an intent to the written instrument. Arguing that the current judicial practice is to consider actual and presumed intention simultaneously, the new Restatement rejects the view that interpretation and construction are discrete parts of a sequential process. It proposes a one-step process in which courts will consider extrinsic evidence and rules of construction simultaneously.

Professor Storrow argues that the new Restatement formulation of will construction is misguided. First, Storrow reveals that the judicial practice cited in justification of the new formulation is employed primarily in cases involving disputes over the quantum of estates - cases that, because of their peculiar context, have historically received treatment different from those cases involving the problems with identification that the law of will interpretation was designed to address. Second, through the lens of a recent case that interpreted the will of a decedent who owned vast holdings of mineral-rich land, Storrow demonstrates how the new Restatement formulation vests courts with excessive discretion and virtually invites them to flout the principle that, in every wills case, locating and carrying out the testator's intention is the primary and paramount concern.

Keywords: wills, interpretation, construction, judicial discretion, plain meaning, ambiguity, extrinsic evidence, estates in land and future interests

Suggested Citation

Storrow, Richard F., Judicial Discretion and the Disappearing Distinction between Will Interpretation and Construction. Case Western Reserve Law Review, Vol. 56, No. 65, 2005, Available at SSRN: https://ssrn.com/abstract=880776

Richard F. Storrow (Contact Author)

City University of New York School of Law ( email )

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United States
(718) 340-4538 (Phone)

HOME PAGE: http://www.law.cuny.edu/faculty/directory/storrow.html

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