Article on Wills

Diane J. Klein (Visiting Professor of Law, Stetson University College of Law, Gulfport, Florida; Professor of Law, University of La Verne College of Law, Ontario, California) recently published her article entitled How to Do Things With Wills, 32 Whittier L. Rev. 455 (2011). The abstract from the article is below:

Familiar will-making formulas like “I hereby devise” are actually very strange statements, not obviously true or false and somehow having the power to project the speaker into a future time after his own death. J.L. Austin’s philosophy of language introduced a number of concepts that can profitably be applied to bequeathing/devising, an example Austin himself used as a “performative” utterance. Austin’s “doctrine of the Infelicities” provides a systematic approach to traditional will-making defects, and Austin’s taxonomy provides us with something currently lacking from wills law–namely, a theory that allows us to think in an organized way about the wide variety of things that can go wrong in will-making. This is an important potential benefit to be derived from analyzing bequeathing/devising as a performative. At the same time, bequeathing/devising serves as a useful example for the next stage of Austin’s analysis, which requires distinguishing “illocutionary” from “perlocutionary” acts. Austin’s attention to the illocutionary force of utterances, including exercitives, verdictives, and commissives, ultimately helps us to think much more precisely than we generally do about exactly how the language of a will accomplishes what it does.