Tuesday, April 25, 2006
Richard F. Storrow (Associate Dean for Academic Affairs and Professor of Law, Pennsylvania State University - The Dickinson School of Law) has recently posted his article on SSRN entitled Judicial Discretion and the Disappearing Distinction Between Will Interpretation and Construction. Here is the abstract of his article:
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.