Why did the late David Mellinkoff object to using “last will and testament”?
The phrase last will and testament is a common legal doublet — a ceremonious phrase with ancient resonances. Sir Edward Coke (1552-1634) referred to an ultima voluntas in scriptis (= last will in writing). Last will and testamentis not a term of art but falls under the heading of ritual language, which is always directed to a lay rather than a legal audience.The noted legal writer David Mellinkoff argued that the phrase is “redundant, confusing, and usually inaccurate.” The Language of the Law 333 (1963). Mellinkoff concluded that tacking on the superfluous and testament violates the surplusage canon. (See Scalia & Garner, Reading Law: The Interpretation of Legal Texts 174-79 (2012).) With redundant terms, the lazy drafter (especially of statutes) may use will in one part of the law, testament in another, and will and testament in yet a third section. Do will and last will and testamentmean precisely the same thing? If so, why has the drafter worded the provisions differently? And so on.With more fervor, Mellinkoff criticized the word last in the formulaic phrase for being ambiguous. He observed this last in its earliest use was akin to the “last words of a dying man.” But the words in a will are rarely the testator’s last words on earth. And the document itself is not always the last in a succession of wills — and just naming it your last will does not make it so. Your last will is the one in effect on your death. But until that day, there may be more wills drafted — each one temporarily taking on the last label.
Mellinkoff stressed that the phrase last will may be legally inaccurate as well. Mellinkoff gives this example from an actual case: will No. 1 was revoked by will No. 2; the court held that a later “codicil to my last will” referred to No. 1, reviving it and revoking No. 2. The testator was talking about his first, not his second, when he said last will. He was using last to mean “previous” rather than “final.”
Since this phrase is not likely going away anytime soon, my recommendation, if you’re going to use the phrase, is to confine it to the title of the document it refers to, and to use will alone in the body and in legal opinions construing the document. That’s my last word on the subject — at least for now.
Garner’s Dictionary of Legal Usage 294-97; 516-17 (3d ed. 2011).
David Mellinkoff, Legal Writing: Sense and Nonsense 64, 102-03 (1982).
David Mellinkoff, The Language of the Law 77-79; 331-33 (1963).
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 174-79 (2012).
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