Choose Your Words Carefully

Word choice in drafting wills carries significant ramifications. A recent Tennessee Appellate Court's decision turned on whether land that was to "be given to my son…" meant the same thing as "devised to my son…" or "bequeathed to my son…". This interpretation mattered as the verb chosen impacted the timing of the legal conveyance of the land (i.e. immediately at his mother's death or as part of the administration of her estate).
In the case of In re: Estate of Martha B. Schubert, there was a disagreement as to how a will was to be interpreted regarding specific gifts of real property. On one hand, the property would pass to her one son immediately upon his mother's death, while on the other hand, the same property would pass through the mother's estate. The trial court resolved the issue by determining that the property transferred to the son immediately upon his mother's death by statute (T.C.A. 31-2-103) since the will did not permissibly opt out of the automatic transfer.
The Court of Appeals disagreed, finding that the mother's choice of both sentence structure and words showed her intent was that the transfer was for a future act, not an immediate act upon her death. The Court observed, "[t]he specific phrase with regard to the [land], however, contains only the words 'be given,' not the words 'devise' or 'bequeath.' The direction that the property 'be given' indicates that this property is to be administered as part of [mother's] estate and 'given' to [her son] 'as part of his share of [her] estate' by the personal representative of the estate. The words 'be given' without words such as 'devise' or 'bequeath' show that further action is necessary before the property can vest in [her son], especially in light of [the mother's] specific direction that it be a 'part of [her son's] share of my estate.'"
Choosing words in legal drafting, whether in business contracts, employment agreements, releases, or wills, is crucially important. Words and phrases can have numerous meanings and result in unintended consequences. As such, it is important to work closely with your trusted advisors while drafting. Further, always remember to read and then re-read important documents before they are finalized.
In re: Estate of Martha B. Schubert, No. E2014-01754-COA-R3-CV, (Tenn. Ct. App. July 15, 2015).