This entry is occasioned by a recent article from Prof. Gerry W. Breyer, a very prominent scholar in the field of trusts and estates.  A Grave Error:  A Man Attempting to Fake His Own Death Was Caught Because of a Typo, by Gerry W. Beyer (the Governor Preston E. Smith Regents Professor of Law, Texas Tech Univ. School of Law).

A Long Island man was scheduled to be sentenced for a crime. On the date of his sentencing his attorney appeared alone and informed the court that his client  had died in New Jersey and produced a death certificate supplied to the attorney by the man’s grieving fiancé. The district attorney was suspicious because the death certificate contained several misspellings of the word “registry.” (The document spelled the word “regsitry.”) Upon investigation, it turned out that New Jersey officials were not deficient in their spelling but that the death certificate was a forgery. The defendant is now alive but not well; he is in much more trouble.

All attorneys reading this story will have breathed a sigh of relief when they realize that the  attorney was as misled by his client and his client’s  fiancé as was the court and the prosecutor. It may be a stretch, but perhaps there is a lesson or two here relevant to the practice of trusts and estates. If not, then at least it was a pretty good story. Don’t you think? It made me laugh to beat the band.

One.  The official death certificate is a necessary proof of death. Obvious and usually there is no difficulty obtaining such a document when a person has died. But there are times when a death certificate is unavailable because the person has gone missing and the court is called upon to declare a missing person dead.  If the proof before the court shows that a missing person was exposed to a specific peril then the court can declare that person dead.  Alternatively, if the  person was missing for a continuous and unexplained period of three years, then the court can declare him or her dead. The FBI’s National Crime Information Center stated in its 2019 Missing Person and Unidentified Person statistics that as of December 31, 2019, there were approximately 87,500 active missing person records. (Youth under the age of 18 accounted for 35% of the total, and 44% of the missing persons were under 21.)

Two. The importance of attending to the details of language extends beyond the typographical error. It includes the choice of words themselves in a legal instrument. The courts frequently are called upon to untangle  knots of uncertainty caused by the ambiguous choice of words in a testamentary instrument.  The person who signed the instrument is no longer available to explain what his or her intention was, so the courts have to rely on an ancient body of common law guidelines to help them determine what the meaning was. In the parlance of our times, these are called “construction proceedings.”

Suppose a Will provides “I give and bequeath to my sister, xxxxx, any and all household items which she desires to take from my principal residence after my decease. Anything which she does not take from my principal residence shall become part of my residuary estate.”  What is the meaning of the phrase “household items?” Does the definition include the extensive and valuable art collection of the testator? If it does, then the artworks go to the decedent’s sister. If the words “household items” are interpreted to exclude art objects, then the testator’s residuary beneficiaries are entitled to them. Reasonable minds may differ, but the court is obliged to decide. If you are interested in the details of this case (the sister won), here is a link to it: Matter of Isenberg.

Bonus puzzle for coming this far: this blog entry contains two references to “The Big Lebowski.” What are they?

What!!! You haven’t seen the Coen Brothers’ movie? Shame on you. I think they really tied the piece together. Three.