A Rhetorical Analysis of the Genre of Wills

This Article undertakes a rhetorical analysis of the genre of wills. This qualitative analysis of 168 wills is tethered in a specific geographic, legal, economic, and social context and anchored in nine discrete time periods. The wills were executed between 1821 and 2003 and recorded and probated in Bibb County, Georgia.

Based on the rhetorical analysis, this Article uncovers five characteristics of the genre of wills; characteristics that flow from the history, rituals, and customs of the drafting, interpretation, and implementation of wills. First, the wills have a lyrical title, “Last Will and Testament,” that summons religious images and beliefs. Second, the sonorous invocation of the introduction, also known as the exordium, infuses a ballad-like quality to the will. The third characteristic is the deliberate use of antiquated phrasing to accord weight to the gift, bequest, and devise of the rest, residue, and remainder of the estate. Fourth the wills bestow responsibility, both legal and moral, in the nomination of fiduciaries. And fifth, the wills close with a resonating reflective statement, also known as the testimonium.

In addition to using the rhetorical artifacts to identify the characteristics of the genre of wills, this Article contemplates the function and purpose of these characteristics. Estate planning is the confrontation of one’s mortality, assessment of one’s life, and contemplation of one’s legacy. The will memorializes that process. In this digital age, wills seem like anachronistic documents because they continue to be actual pieces of paper requiring actual signatures. Wills are one of the oldest forms of legal documents, with one of the oldest known wills dating to the time of the Egyptian Pharaohs. Wills are also some of the most traditional forms of legal documents. Not only have wills been resistant to many suggestions of change, such as digital executions, but wills also contain apparently vestigial language that dates to the Middle Ages when unschooled draftspersons penned bequests that they worried would not be enforceable. This Article places the reviewed wills in their legal, economic, and social context to better understand the interplay among testators, draftspersons, beneficiaries, and society as a whole.

Specifically, this Article first considers the nature of language, a means of communication unique to humans that is imperfect and imprecise. Second, this Article sketches the theoretical parameters of the rhetorical analysis of genre. In so doing, the rhetorical analysis of genre is revealed to encourage understanding of the rhetorical choices made to both assess past rhetorical choices and guide future rhetorical choices. Third, to situate the wills in the appropriate social context, this Article highlights some of the development and use of wills. Upon examination of the relatively stable genre of wills, the will is revealed to be a structured, formalized document with five preserved ritual points: (1) the title, (2) the introduction, (3) the residuary clause, (4) the nomination of fiduciaries, and (5) the closing. Despite adherence to a rather rigid set of conventions, wills, at their core, are personal documents. Each will displays a sense of the individual testator that can be observed in the naming of beneficiaries important to the testator, such as family and members of a family business. The individual can also be observed in the gifts of property important to the testator, such as unharvested crops, a rocking chair, a pickle dish, or a knitted bedspread. Finally, this Article ponders how rhetorical choices for wills may change because of changing testator demographics and changing perceptions of drafting.

A rhetorical analysis of the genre of wills allows for the consideration and critique of past rhetorical choices. Moreover, it informs future rhetorical choices in a manner that facilitates the drafting of wills.