Language
Chattel me this
Charles Darwin (1809-1882) was a youg man when he sailed aboard the Beagle to the Galapagos Islands, and middle aged when he wrote The Origin of Species.
His will was written in typical Victorian legalese "...Upon trust as to the freehold messuage dwellinghouse estate or tenement outbuildings lands and hereditaments situate at Down aforesaid now in my occupation with the rights inscribers and apportenaries thereto." 'Messuage' is roughly synonymous with 'dwellinghouse.' 'Apportenaries' is anybody's guess.'
Language can be hazardous to your will's health. Even seemingly simple unambiguous terminology can be a stumbling block. One of the best-known and most widely quoted examples of linguistic lucklessness concerns the man who, confusingly, left everything to 'mother.' The confusion arose in that this particular man had two 'mothers' - his biological one, and the mother of his children, his wife, whom he referred to as 'mother.'
On the other hand, fancy legal terminology - which is supposed to be clear and precise - can be anything but.
Even lawyers have stumbled over their own fancy fingerwork. In a fairly recent (2006) case, a solicitor prepared a will for his own mother and obtained her approval of the draft by reading it to her over the telephone. A judge ruled that the the will was "expressed in the customary technical language of wills, which most lay people will find impenetrable and many may consider to be gobbledegook." He ruled the will invalid and reinstated an earlier will.
The crucial part of the will, which deals with the residue, and the judge's critique, are available here.
Too clever by half
Some old-fashioned words and phrases still appear in modern wills, such as 'chattels,' 'issue' and 'devise'. They have specific meanings, and when used by solicitors and other professional will-writers, provide clarity. The term "per stirpes" is less familiar but very useful, referring to a legacy passing down the line from an individual to that individual's children or, via those children, to the grandchildren.
Earning Your Foreign-Language Stripes
'Per stirpes' is Latin for 'per branch'; 'per capita' is Latin for 'per individual'.
A branch differs from an individual. Give a gift to an individual and, if that individual has died, end of story. But if the gift is given per stirpes, it goes to the branch - and the branch consists of the individual plus his or her children (and their children!). Branches, like rivers, can have tributaries.
Example: an elderly man leaves an equal amount of cash per stirpes to his daughter and three sons. All of the sons are alive but the daughter has died. However, her children are alive. As they are on her branch, her share passes to them. They divide it among themselves.
And because the gift passes down the branch, if the daughter AND her children were dead, if any of those children had children, they too are on the branch - her branch - and become the beneficiaries. In this instance, the beneficiaries are the original benefactor's great-grandchildren.
The term 'per stirpes' is very much alive and well, appearing in the wills of Diana, Princess of Wales, Linda McCartney, Elvis Presley and actor Paul Newman.
