Interpretation vs. Construction

Richard F. Storrow (Professor of Law, Pennsylvania State University) has recently published his article entitled Judicial Discretion and the Disappearing Distinction Between Will Interpretation and Construction, 56 Case W. Res. L. Rev. 65 (2005).

Here is the conclusion of his article:

The meaning of the words of one’s will is determined by a complex process of evaluation made up of, at stage one, interpretation, and, at stage two, construction. It has long been recognized that interpretation is the search for the actual intent conveyed by the language of a legal instrument and that construction, by contrast, is the imposition of presumed intent upon the instrument when interpretation has failed. If the language of the will is not plain and could be clarified by the admission of extrinsic evidence, or where a latent ambiguity in the language would be revealed and possibly resolved, the court will consider extrinsic evidence of the circumstances existing at the time of the execution of the will. Unlike other areas of the law, precedent is of limited usefulness in will interpretation, the theory being that the peculiar factual circumstances surrounding the execution of a will render it unlike any other.

The ALI’s new Restatement governing wills and other donative transfers rejects the distinction between will interpretation and construction. 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. To replace the old approach, the Restatement proposes a one-step process in which courts will consider extrinsic evidence and rules of construction simultaneously.

The Restatement’s new formulation raises several matters of concern. Foremost among these is that evidence of a judicial practice to conflate interpretation and construction is lacking. Case law from a multiplicity of states continues to make a clear distinction between the two and to embrace the sequential process that has been and remains an important component of the American legal tradition of will interpretation. 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 different treatment from those involving problems with identification that the law of will interpretation was designed to address. To adopt this particularized approach in cases of will interpretation generally would vest courts with excessive discretion and virtually invite them to ignore the tenet that, in every wills case, discerning and executing the testator’s intention is the primary and paramount concern.