Interpretation Of Wills Research Articles

Causa Curiana as an example of the influence of rhetoric on the interpretation of wills in Roman law

The article aims to analyze a hereditary dispute happened in the late Roman Republic and known as causa Curiana. The argumentation of parties ranked for a long time as starting point of the discussion about rhetorical influence on interpretation of Roman lawyers. The author pursues to estimate an influence degree of ancient rhetoric on interpretation in Roman jurisprudence. For that purpose the reconstruction of trial position of both parties is undertaken and compared with rhetorical treatises. Then the main features of interpretation of agreements and testaments are shaped. After that the difference between revealed features and rhetorical approaches of interpretation is underlined. Finally, the appearing of those features in causa Curiana is explained and its significance for Roman jurisprudence is illustrated. The analyze of approaches to Roman law interpretation has shown that legal interpretation of Roman jurists was relied on the same instruments applied by ancient rhetor. Meanwhile Roman lawyers treated such instruments as normative element divided from rhetors who were apt to use them more deliberately according to their tasks. The manner of speech of the parties’ representaties was based on rhetorical terminology in the legal trial. At the same moment the perceiving of testament sense was realized through legal argumentation. This fact does not allow to argue for bride rhetorical influence on Roman law.

Interpretation of Wills - Does Endumeni Case Apply?

This article argues that the general approach to documentary interpretation articulated in Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 4 SA 593 (SCA) (Endumeni) applies also to the interpretation of wills, subject to adaptation for context. It is argued that interpretation of wills and the application of an interpretation to a particular factual setting are coequal tasks. Each case must be decided on its own facts. The cardinal rule is the ascertainment of a testator's intention and giving effect thereto, provided that this will not bring about a violation of the law. It is argued that a court must put itself in the armchair of the testator and, after determining where the probabilities lie, it must infer or presume what the testator had in mind at the time that the will was created. Although intention is subjective, the interpretive process to determine a testator's intention is objective in form. It is argued that a court must, in every instance, understand the purpose for which it seeks to determine a testator's intention. This is so that it can undertake the correct enquiry. If the aim is to determine the meaning of a testamentary provision, then a testator's intention must be ascertained as memorialised in the written text of the will read as a whole, taking into account also the purpose of the text and its context. If, on the other hand, the aim is to determine whether a document is a testator's intended last will and testament, as is the case when section 2(3) of the Wills Act 7 of 1953 is invoked, then a testator's intention must be ascertained with reference to the document's purpose, taking also into account all legally relevant and admissible internal and external contextual factors. It is argued that all this is, as confirmed in Endumeni, consistent with the modern trend favouring an objective, purposive, contextual cum teleological mode of documentary interpretation.

INFLUENCE OF OBJECTIVE ELEMENTS ON THE INTERPRETATION OF WILLS

The author of the paper discusses rules relating to will execution formalities, and rules relating to interpretation of wills in order to show the importance of legal policy and general legal values for interpretation of wills. Aharon Barak’s theory of purposive interpretation is a starting point for the discussion because this theory emphasizes the importance of objective elements for interpretation of wills. The author analyses the main problems that arise in connection with interpretation of wills and indicates possible policy considerations underlying different approaches to interpretation. The author concludes that courts have a justifiably large freedom to interpret the words of the will and that there is convergence between civil law and common law approach to interpretation of wills, and this interpretation is often based on objective rules not connected to the most likely intent of the testator.

Marley v Rawlings in the Supreme Court

Alexander Learmonth was junior counsel for the respondents in Marley v Rawlings, the first probate case to be decided by the Supreme Court. In this article, he charts the case progress from trial through to appeal, and discusses the implications of the decision for the interpretation of wills, the requirements for formal validity, and the ambit of the statutory power of rectification of wills under section 20 of the Administration of Justice Act 1982.

The (Literal) Death of the Author and the Silencing of the Testator’s Voice

This essay considers the various legally recognized means by which an individual’s wishes can be frustrated by the subsequent acts of others under English law and seeks to identify, within such practice, a dishonoring of the voice of the testator. It looks first at the stringency of the formalities required to create a valid will, then goes on to consider the paradoxical approach of the courts to the interpretation of wills, whereby the intention of the testator is frequently acknowledged yet is abandoned in favor of an ostensibly textual analysis. The essay concludes by demonstrating the extent to which the testator’s wishes, even when clearly and validly expressed on the face of the will, can nevertheless be defeated by those whom the testator intended to benefit under the will and even by those whom he did not.

Change to the age of majority: General impact and some consequences for the interpretation of wills

On 1 July 2008, the age at which a person attains majority was lowered from 21 years to 18 Section 17 of the Children's Act stipulates that : A child,whether male or female, becomes a major upon reaching the age of 18 years. This change is consistent with the Constitution, which defines a child as a person under the age of 18

Interpretation in Law: Chief Justice Barak's Theory

AbstractThe purpose of this article is to give a panoramic view of Chief Justice Barak's theory of interpretation, namely the purposive theory, which is contained in a six volume treatise in Hebrew, Interpretation in Law. In order to understand this theory, it is useful to imagine a spectrum where, on the one hand, there is the subjective intent – namely the meaning that can be deduced from the intent of the writer of the text – and, on the other hand, the objective intent – namely the meaning based on the fundamental principles of the legal system. Various legal texts are interpreted by placing them on different points of this spectrum in accordance with the relevant area of law. Accordingly, in defining the purpose of Basic Laws, Barak gives primary regard to the fundamental principles of the system, with very little regard to the intentions of the drafters. In contrast, the purposive interpretation of wills occupies the other end of the spectrum, with maximum regard for the subjective intention of the drafter and a much smaller regard for the fundamental principles of the legal system. After a brief review of the philosophical and theoretical application of the purposive interpretation of various legal texts, the article moves on to demonstrate, through decisions of Chief Justice Barak, the judicial application of the purposive interpretation in two of the most important fields of interpretation: constitutional interpretation and interpretation of contracts.

'In the Name of God, Amen' Seeking the Testator's Authentic Voice in Research Using Wills

A Will is a written document which represents a unique form of communication between the dead and the living (Finch et al 1996). This statement hints at the complex nature of the interpretation of wills. Wills are documents which have a unique power. No other document can communicate beyond the grave in the voice of the deceased with that same combination of legal and personal power. In turn the communication from the living back to the deceased takes the form of acceptance of their wishes and the turning of those wishes into concrete form in many cases. It is not a simple transference of will (in the personal sense) from one to the other; rather, the executor must operate on the will by taking it to court or by other transactions and the beneficiary may interact with the will by choosing whether to comply with conditions and by using his or her own desires to deal with the corporeal remainder of the deceased, their estate.

Extrinsic Evidence and the Interpretation of Wills

Extrinsic Evidence and the Interpretation of Wills

Interpretation of Wills: Recent Developments

Interpretation of Wills: Recent Developments

Underhill and Strahan's Principles of the Interpretation of Wills and Settlements. Third edition, by J. B. Richardson, M.A., LL.B., of the Middle Temple, Barrister-at-Law, Lecturer in Real Property and Equity in the University of London, Examiner in Real Property and Equity to the Inns of Court. London: Butterworth & Co., Ltd.1927. (17s. 6d.)

Underhill and Strahan's Principles of the Interpretation of Wills and Settlements. Third edition, by J. B. Richardson, M.A., LL.B., of the Middle Temple, Barrister-at-Law, Lecturer in Real Property and Equity in the University of London, Examiner in Real Property and Equity to the Inns of Court. London: Butterworth & Co., Ltd.1927. (17s. 6d.)

The Relation of Mistake to the Problem of Interpretation of Wills

The Relation of Mistake to the Problem of Interpretation of Wills

The Interpretation of Wills--Jarman's Fifth Rule

The Interpretation of Wills--Jarman's Fifth Rule