WILLINGLY FLAWED

The common grammar mistakes in wills that have landed families in court

Obsession
Language
Obsession
Language

Packed into the dense legalese of a will are great emotional power and the potential for profound confusion: Not only does your will represent all that materially remains of your life, its trying task is to clarify the difference between what friends and family think they deserve from that life in return for their loyalty, and what you think they deserve.

Naturally, the slightest ambiguity can cause problems. As US inheritance law cases from the last century show, wills with uncrossed t’s and undotted i’s can bring relatives clamoring over what they think is their fair share. The presence or absence of a simple comma has been reason enough for disgruntled relatives to litigate.

Typically, it’s a judge’s job to look at your will and try to figure out what you intended—not to quibble over commas. But once in a while, imperfect grammar or clerical errors become the focus. A few examples:

What are semi-colons for again?

In 1966 Ohio, one semi-colon posed a problem in this clause:

All of the residue and remainder of my property I give and devise in equal shares to Albert Wilson of Toronto, Canada, son of my late husband’s niece Jean Wilson; The Little Sisters of the Poor of Cleveland, Ohio and Our Lady of Peace Church of Cleveland, Ohio.

What was the split meant to be?

Albert Wilson: 1/3
The Little Sisters of the Poor: 1/3
Our Lady of Peace Church: 1/3

or

Albert Wilson: 1/2
The Little Sisters of the Poor: 1/4
Our Lady of Peace Church: 1/4

Semi-colons aren’t easy. They should be used to separate two full sentences that closely relate to one another. But they can also be used in a list where the things in the list are long or have multiple clauses.

In this case, it could be argued that if the deceased had wanted all three parties to receive equal shares, she should have put a semi-colon between The Little Sisters of the Poor and Our Lady of Peace Church so it would read:

All of the residue and remainder of my property I give and devise in equal shares to Albert Wilson of Toronto, Canada, son of my late husband’s niece Jean Wilson; The Little Sisters of the Poor of Cleveland, Ohio; and Our Lady of Peace Church of Cleveland, Ohio.

In the end, the judge decided to ignore the missing semi-colon and said the estate should be divided into three equally.

In another case of flagrantly misused semi-colons, the sentence was this:

To my wife Florence Haggins Treanor as long as she is Mrs. Treanor I will devise and bequeath the remainder of my property both real and personal or mixed of which I die possessed or to which I may acquire and be entitled to dispose; as she sees fit.

This 1941 case in Tennessee pitted mother against son. The ambiguity centered around the semi-colon: Why was “as she sees fit” separated? One of the Treanor children argued that “as she sees fit” wasn’t part of the rest of the sentence, and that his mother only owned the property as long as she was alive and didn’t marry someone else.

But four of the Treanor sons testified that their father wanted their mother to inherit everything and do with it what she wanted, so the judge ruled that the semi-colon was a mistake to be disregarded.

Oh, OK. Like this?

A decade earlier, in a 1951 Kentucky will, the testator used semi-colons correctly, which itself unexpectedly presented a problem:

I bequeath and devise my entire estate, both personal and real, which may remain after the satisfaction of the above special bequest and the payment of my debts, funeral expenses, and the costs and expenses of the administration of my estate, in equal shares, absolutely and in fee, to my cousin, the said Walter Cassidy; Robert Jamison and William Stivers, tenants on my farm; George E. Smith, who rents my property on Bland Avenue, Shelbyville, Kentucky; and the Kentucky Society for Crippled Children, of Louisville, Kentucky; Baptist Ministers Aid Society, of Owensboro, Kentucky; Baptist Orphans’ Home of Louisville, Kentucky; King’s Daughters’ Hospital, of Shelbyville, Kentucky; and the Clayvillage Baptist Church, of Clayvillage, Shelby County, Kentucky.”

In this will, each group of beneficiaries in the list was correctly separated by semi-colons. But two of the people in the will disagreed over whether that meant there were nine equal shares or eight. Did farm tenants Robert Jamison and William Stivers, who were together between two semi-colons, count for one share together, or one share each?

A judge ruled there should be nine shares, and that the missing semi-colon didn’t do enough to deny Jamison and Stivers two separate shares. Perhaps hoping to get slightly more, one of the other beneficiaries appealed the case, but was turned down.

Between two Kellers

In 1949 California, a handwritten will with ambiguous word choice and the utter abuse of a period really confused its beneficiaries:

Fourth: I give, devise and bequeath all my property, real and personal, wherever situated, to be equeally divided between Luella Martin at Perris California. And Stanley Keller, Roy C. Keller and James L. Keller. All three live at Willowbrook California.

“Between” usually means split between two things. So one party argued the estate should be first split in two, and then further divided:

Luella Martin: 1/2
Stanley Keller: 1/6
Roy C. Keller: 1/6
James L. Keller: 1/6

While the Kellers argued for a single list of equal shares:

Luella Martin: 1/4
Stanley Keller: 1/4
Roy C. Keller: 1/4
James L. Keller: 1/4

The punctuation made it all the more confusing. But the judge considered the poor grammar and spelling of the will overall, and decided that the deceased man probably meant “among,” not “between.” The four parties split the property equally.

Serial nuisance

The mother of all comma cases was from 171 years ago, in New York. It was an estate and punctuation issue that bitterly divided the Court of Errors, a predecessor to the state appeals court.

The passage in question:

Second. I give and bequeath unto my beloved wife, Mary, all my real estate, one clock, and the interest of five hundred dollars during her lifetime.

This serial comma created major ambiguity: Did “during her lifetime” apply to the $500 interest alone, or to the real estate, clock, and the interest? Normally a serial, or Oxford, comma is used in a list of more than two things, before the final coordinating conjunction. Style guides differ on whether you ought to use a serial comma, but here there appears to be one. That implied that the real estate, clock, and interest were all part of one list of things, and that “during her lifetime” applied to all three.

Mary herself died the year after her husband. Those left behind wanted to know whether the real estate she inherited belonged to her estate, or whether its ownership reverted to her husband’s heirs once her life was over.

A lower court ruled that the limit “during her lifetime” applied only to the $500 interest, and that the land and the clock were Mary’s forever. But then the case went to the errors court. In a decision that came down to 11-10 in favor of reversing the lower court’s decision, the error court judges were bitterly split not only on what the grammar implied, but also whether grammar should matter at all.

Of the judges who wrote opinions for the case, they varied widely:

Judge Mary’s inheritance is hers only during her lifetime? Does grammar matter? Reverse the lower court’s decision?
Barlow yes no yes
Hard yes yes yes
Spencer yes yes yes
Wright yes yes yes
Johnson not sure no yes
Porter yes no no
Van Schoonhoven no yes no

Said one judge, if the testator wanted “lifetime” to count only for the $500 interest, the sentence above should read, “I give to my wife all my real estate and one clock, and the interest of five hundred dollars during her lifetime.” He also argued that the sentence would be much clearer without that serial comma.

Still, “Punctuation determines nothing,” he wrote. “Intent is everything; and very little reliance should be placed upon the capricious rules of grammar.” He loathed to group together “profound jurists of former and present ages” and “grammarians and critics of the present day.”

Things got pretty heated. Another judge criticized the lower court judge, writing, “I think he does violence not only to the plainest rules of grammar, but to the common rules of construction.”

Details, details, details

The vast majority of ambiguities in wills are resolved privately, or don’t warrant published opinions, so we only know about a tiny number of these disputes. And for estate lawyers, attention to clear language should happen well before somebody dies.

“A comma really can make a difference in estate planning,” says Carly McKeeman, an estate lawyer by training who’s now a vice president at Evercore Wealth Management. “It’s so much about ordering and grouping, either people or assets, or a sense of time—if this happens then this—and commas by their very nature create groupings and pairings around which all of that functions.”

“Clarity and consistency are the most important elements of drafting estate planning documents,” says Sean R. Weissbart, counsel at the firm Morris & McVeigh and an adjunct professor teaching estate drafting at Fordham’s School of Law. But too often lawyers are careless, he says. Marc Bloostein, a partner at Ropes & Gray who lectures on estate planning at Harvard Law School, blames ambiguities on human error, and also computers. He says word processing has especially contributed to lawyerly laziness, as documents from different clients end up re-used without thorough checks for those devilish details.

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