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Sunday, May 29, 2005

Column: Heir today

The youngest billionaire, according to Forbes magazine, is Prince Albert von Thurn und Taxis. He made it on Forbes’ list by inheriting $2 billion on his 18th birthday – and if that doesn’t prove the value of good estate planning, I don’t know what does.

Nobody, of course, would leave the disposition of large fortunes and family castles to mere chance. But even us ordinary folks should have a will, which is why it is always surprising to find out how many people never get around to it. Could this have something to do with the daunting language of testamentary disposition (that is, the way we dispose of things after death)?

The meek shall inherit the earth, or so they say, but a glance at the fine print might just show that the meek have only a contingent remainder, which means they only get it if a prior condition is fulfilled. It just goes to show that one can’t be too careful.

The language of wills is the most conservative in the legal lexicon. Trust and Estate lawyers tend to stick with phrases that have withstood that test of time; the theory being that such words lead to less ambiguity and, therefore, fewer will contests.

The results of this linguistic conservatism are – as we shall see – decidedly mixed, but the general goal of avoiding will contests is a wise one. Such litigation can drag on for decades, like Charles Dickens’ fictional Jarndyce v. Jarndyce, which was said to have wallowed in London’s Chancery Court for so long that nobody could remember what it was about.

As a legal term, will is directly related to our common auxiliary verb will, as in, I will go to the store today. In Anglo-Saxon times, there was no legal mechanism to make binding dispositions of property after death. The most one could do was to draft a document stating one’s desire, or as they said in Old English, ic wille (“I desire”) that, for example, Ethelbert should have my axe, Ethelred my sword, and so on.

Over time, the sturdy Anglo-Saxon will became legally binding, but it was forced to share the honors with the more finicky Latin testament (originally testamentum). It was in the 15th and 16th Centuries – a period when English lawyers were in a state of perpetual confusion as to which language they should use – that the two words were joined in the immortal phrase last will and testament.

Originally, “last will and testament” was a deliberate redundancy: saying the same thing in two languages just to be clear. But lawyers soon applied their normal rules of construction, which presume that different words in the same document have different meanings. Thus developed the interesting but not particularly useful doctrine that a will is an instrument to dispose of real property, while a testament only applies to chattels. The distinction was always silly: today you can just call the thing a “will” and have done with it.

And yet, a form will that I recently downloaded off the internet proudly calls itself a “Last Will and Testament.” Oddly enough, this document says that it “revokes all Wills and Codicils previously made,” while saying nothing about former testaments. This raises the truly alarming prospect that disregarded-but-unrevoked testaments might be floating around somewhere in the legal ether.

The same linguistic melting pot that gave us will and testament has for centuries required that testators must not only give away their possessions, but they must give, devise and bequeath them – which, as one can imagine, is hard work and long hours.

Both give and bequeath come from Anglo-Saxon, while devise is an Old French term. Here again, cautious lawyers thought it best to lump the three words together. And once again, later generations of lawyers invented specious distinctions among these terms. So by the nineteenth century, it became conventional wisdom that one can only devise realty, whereas one can bequeath personalty. It’s not clear what one is supposed to give – blood perhaps?

Most wills end in a final blast of redundancy, when the testator disposes of the rest, residue and remainder of the his estate. For centuries lawyers struggled to find the right phrase to describe the leftover bits of one’s estate. “Rest, residue and remainder” eventually emerged as the favorite, probably because of its pleasing rhythm. But along the way, the law – and the English language – lost some marvelous synonyms, like the 17th century term overplus (as in “the overplus of the estate”), a word that is clearly due for a comeback.

Sometimes a will gets the exotic description of being holographic. Despite what one might think, a holographic will is not one that features a three-dimensional image of the testator making his bequests. That’s a hologram, apparently. Holographic simply means handwritten, from the Late Latin holographus. In Louisiana, with its gallic ancestry, such wills are referred to as olographic, a first cousin of the French olographe.

Which brings us to the big question: who inherits all the loot? The answer is: whomever the testator wants – sort of. The law generally requires that married people leave something to their surviving spouses. These rules are known as dower and curtesy.

The word dower, which is related to endow, refers to the common law right of a widow to a certain share, usually one-third, of her late husband’s estate. Technically, a man was said to “endow” his wife with this inheritance as part of the marriage ceremony. The doctrine took root early in America, making its first appearance in the 1648 Laws and Liberties of Massachusetts.

Curtesy (an archaic spelling of courtesy) was a widower’s right to a life tenancy in his late wife’s lands. The only glitch was that in the old days a woman – though she may inherit property – had no power to convey it. So, the grieving husband was said to receive his life tenancy “by the curtesy of England.” And England was courteous indeed – to a fault one might say – since the widower got 100% of his wife’s lands while the widow got only a third of her husband’s property.

In some states, these old terms have been replaced by the modern, although bland, term statutory share. In other states dower and curtesy remain on the books, but the differences between them have been smoothed out. It all amounts to the same thing: the surviving spouse is entitled to a set share of the deceased spouse’s estate.

By now you might think that anybody who puts himself through the process of drafting a will has got to be out of his or her mind. But in fact just the opposite is true. In order to write a will one must have testamentary capacity, which means, if you’ll excuse the technical jargon, that one isn’t nuts. Or, as William Blackstone, writing in the 18th Century, delicately put it, “[m]admen . . . ideots or natural fools” are incapable of making a will.

For some reason, all the wills in the movies start out with “I, so-and-so, being of sound mind and body.” But the much more traditional phrase is “being of sound mind and memory.” The only problem is that mind and memory is another one of those old mixed-up phrases. Mind comes from Old English, whereas memory comes from Old French. Chaucer was the first to put the two words together and lawyers evidently liked the sound of it. What it means today is thoroughly unclear: must a testator prove sharp memory in addition to general mental health? And yet, Black’s Law Dictionary continues to define testamentary capacity with the enigmatic “mind and memory” formulation.

The only way to avoid all this complexity is to give your stuff away inter vivos, that is, while you are still alive. This is a perfectly legitimate way to give say, country estates, fancy cars, and old master paintings to deserving recipients. Prince Albert, are you listening?

(This column originally appeared in the May 2005 issue of New York Law Journal Magazine).