Article on In Re Estate of Kesling and the Plain Meaning Rule

Jarell A. Dillman recently published an article entitled, Where There’s A Will There’s A Way: An Examination of In Re Estate of Kesling and the South Dakota Supreme Court’s Application of the Plain Meaning Rule, 60 S.D. L. Rev. 121 (2015).  Provided below is a portion of the article’s introduction:

The transfer of property at death is a universal and ancient concept.  Historically, most cultures have allowed dying individuals to allocate their property to others.  In early societal dispensations, a transfer of property from one person to another was done in accordance with specific rules and rituals.  Over time, these customs evolved into established laws, which have become the foundations of testamentary freedom – and its limitations – in modern society. 

A will is a legal document that directs the distribution of an individual’s estate after death.  The primary purpose of a will is to provide individuals the testamentary freedom to control the disposition of their property and to avoid the application of standardized distribution plans set forth by state intestacy laws.  Since testamentary freedom plays an important role in the use of wills, testators are given almost limitless power concerning how to dispose of their property.  Through the execution of a will, a testator may accomplish many goals including: devising property, identifying beneficiaries, designation of a personal representative, and – in some jurisdictions – limiting or disinheriting heirs from receiving a share of the testator’s property. 

Generally, the provisions in a will are considered mandatory directives that must be followed if possible.  Sometimes language in a will is precatory in nature.  Precatory expressions are designed to advise or persuade a donee to confer some kind of benefit, often times property, to another person or entity.