There are many unusual words or phrases in our language that we see or use without pausing to think about where the word or phrase came from. Some are obvious; others defy an easy answer. Many times my husband hears such a word or phrase and plays a little game trying to figure out the meaning of the phrase or how it got started. He once asked me about the phrase “real property” which I use often in my estate planning practice. It was a simple matter to explain that the term real property is used in contrast to personal property. Real property refers to land and buildings whereas personal property refers to everything else. I didn’t dare complicate the matter by pointing out that there are different types of personal property (tangible and intangible).
When my husband asked on another occasion about the phrase “last will and testament”, I didn’t have a ready answer. I simply told him it is one of those old-fashioned legal expressions commonly referred to as “legalese”. However, since I have drafted many a last will and testament in my estate planning practice, I decided to do some research on the phrase.
My research disclosed that the phrase was carried over from English common law. A will, typically, was a document used for making gifts of real property (real estate), not personal property. A testament was a document used only for the disposing of personal property. I also found an explanation for the term often used, “I devise and bequeath”. “To devise” was the verb used when giving away real property. “To bequeath” was the verb used to give away personal property. If you are like my husband, about now you would be asking “Why do we need all of these legal terms? What’s wrong with plain English?”
Throughout history, many wills have been contested because of ambiguous wording. Sometimes the issue stems from the interpretation of just one word! Thus, the most important reason for using legalese in a will or trust is to ensure that your wishes can be interpreted clearly. By using legalese, the opportunity for someone to contest the will or the trust based on ambiguity in the document is diminished. That is why it is important to work with a lawyer who can help you draft your “last will and testament”.
[© 2022 by Marlene S. Cooper. All rights reserved. The information in this article is of a general nature and not intended as legal advice. Seek the advice of an attorney before acting or relying upon any information in this article.]