Treating Class Gift Beneficiaries Equally, Dead or Alive
The following is the introduction to the article:
Two of the most fundamental rules in the law of wills are, first, that the testator’s intention is paramount and, second, that part of the testator’s intention is that the will “speak” at the time of the testator’s death. How strange it is, then, that the courts should so often violate both rules when addressing one of the most common issues of will interpretation.
The issue arises when a devise is made to a plurality of beneficiaries and some of them predecease the testator. How should the subject matter of the devise be distributed? Should it pass entirely to the beneficiaries who survive the testator? Or should the shares that the predeceased beneficiaries would have taken had they survived pass under the residuary clause?
Elsewhere, I have argued in detail why the first outcome is more likely in accord with the testator’s intention, even though in many cases the courts disagree. (Later I will give a very brief account of the main points of that argument.) The primary purpose of the present Article, then, is not to argue in favor of that outcome as a general matter. Rather, my purpose is chiefly to criticize the orthodox method by which the courts reach the results they do and to show that that method has produced outcomes that cannot be in accord with the testator’s intention in many instances.
Under the orthodox method, resolution of the allocational issue (as I will call it) depends upon whether the beneficiaries form a “class” or, to put the matter in another way, whether the devise to them is a “class gift.” If (and only if) that is the case, then the beneficiaries who survive the testator take the entirety of the subject matter. Moreover, as we shall see, one aspect of the orthodox method is that the courts appear to assume that the will “speaks” as of the time of its execution and not at the time of the testator’s death. This approach produces results that are often inconsistent with the testator’s probable intention.
Others have criticized the class-gift doctrine. No one, however, has satisfactorily explained why the courts should persist in deciding cases in accordance with that doctrine. This Article will give that explanation. A will is the product of linguistic behavior, and the theory of speech acts provides both the means for understanding why judges think as they do and a strong theoretical basis for the correct approach
Recently it has become even more important to recognize that the orthodox approach is not the correct one. That approach has been endorsed by the new Restatement (Third) of Property: Wills and Other Donative Transfers, which addresses “class gifts” in its Tentative Draft number 4, to be published in final form as part of Volume 3.
In Part I of this Article, I will briefly give the argument that every devise to a plurality of beneficiaries should be interpreted to produce a distribution of the entire subject matter to the surviving beneficiaries. Part II gives a summary of the theory of speech acts. I will use that theory to construct two “models” of the will, the first (the “Directive Model,” in Part III) representing the testator’s actual intention about her will as linguistic behavior and the second (the “Declarative Model,” in Part IV) representing how the courts appear to view the testator’s intention. Part V sets forth evidence from the cases for the Declarative Model.