Minimizing Probate-Error Risk

Probate-error risk is the possibility that a court will incorrectly assess the authenticity of a will. By prescribing the method courts use to evaluate the authenticity of wills, the law of will-execution allocates probate-error risk between false-positive outcomes and false-negative outcomes. When a court validates an inauthentic will, it creates a false-positive outcome. When a court invalidates an authentic will, it creates a false-negative outcome. Because false-positive outcomes result in the admission to probate of inauthentic wills and false-negative outcomes result in the denial of probate of genuine wills, both can be characterized as probate errors. This framework has been used to identify the problem with the conventional law of will-execution, which is that it generates unnecessary probate errors by heavily allocating risk in favor of false-negative outcomes. It has also clarified the objective of will-execution reform, which is to reallocate risk more evenly between false-positive outcomes and false-negative outcomes so that the total number of probate errors is minimized. This Article applies this framework more broadly to analyze potential methods of will-execution reform. Specifically, this Article identifies the various components of the law of will-execution that can be altered to reallocate probate-error risk and evaluates how different methods of reform can be manipulated to reallocate risk to varying degrees. With a better understanding of what is possible, state policymakers may be more willing to break away from the conventional law and implement change

Incremental Change in Wills Adjudication

Probate courts must decide which wills are valid and which are not. The traditional law provides courts a straightforward process to make these decisions. If the court determines that a will complies with certain formalities, then the will is valid, but if the court determines that a will does not comply, then it is invalid. This decisionmaking process has been criticized for being overly formalistic. While the traditional law is relatively easy to apply, it places greater importance on the process by which a testator executes a will than on the substance of the testator\u27s intent. Consequently, the traditional wills adjudication process invalidates noncompliant wills that are authentic expressions of testators\u27 intended estate plans. This criticism has led to major reforms being incorporated into the Uniform Probate Code that are designed to make the wills adjudication process more accurate in distinguishing authentic wills from inauthentic wills. Although no state has fully adopted the UPC\u27s comprehensive reform package, few states still cling wholeheartedly to the traditional law. Instead, policymakers in many states have implemented changes that take incremental steps away from the traditional law\u27s formalistic approach to wills adjudication. While the preference of state policymakers for incremental change, rather than for comprehensive reform, is clear, questions remain regarding the merits of these more modest approaches to reform. This Article seeks to better understand why state policymakers might favor partial rather than wholesale change to the wills adjudication process. More importantly, it analyzes whether some incremental changes are preferable to others. Ultimately, by providing a better understanding of the merits and possibilities of incremental change, this Article provides guidance to state policymakers who are wary of comprehensive reform

Rethinking the Testamentary Capacity of Minors

This Article proceeds in five main parts. Part II provides the context for examining different rationales for the testamentary incapacity of minors. In particular, it explains the doctrine\u27s place in the law of wills and describes the minor incapacity rules in the related areas of contracts and lifetime gifts. Parts III through V analyze three rationales for the testamentary incapacity of minors. Part III reexamines the traditional explanation, which views the age requirement as furthering a protective policy. Part IV suggests an alternative rationale, namely that age serves as a proxy for competence, and Part V analyzes a second alternative, which suggests that the testamentary incapacity of minors implements forced parental inheritance. Finally, Part VI suggests reforms of the rules governing the testamentary capacity of minors. Specifically, Part VI proposes that the categorical age restriction should be abolished or, alternatively, that the law should grant minors testamentary capacity when parents authorize their children to execute wills

The Timing of Testation

An adult can execute her last will whenever she wants She can do so on her eighteenth birthday or she can wait until she is on her deathbed She can also execute her last will at any point between these two extremes While the timing of testation is up to the individual testator her choice has important implications for the law These implications have been recognized primarily in the realm of willinterpretation as when testation occurs can affect how courts attribute meaning to a will\u27s words By contrast the implications of testation\u27s timing for the law of willauthentication have been overlookedWillauthentication is the process by which the law separates purported wills that testators intended to serve as evidence of their estate plans from those that decedents did not want to be given legal effect upon their deaths This Article argues that the extent to which the testator\u27s intent will be fulfilled if a correct willauthentication decision is made should be an important consideration for policymakers when crafting the law of willauthentication Additionally the Article argues that the timing of testation can provide policymakers evidence of the likelihood that the testator\u27s intent will be carried out if a will is correctly authenticated By explaining how the timing of testation should inform how the law authenticates wills this Article provides policymakers a fresh perspective through which to evaluate potential reforms of the lawIn addition to highlighting the theoretical implications of testation\u27s timing this Article provides an empirical analysis of testation\u27s timing which considers an original data set of over eighteen hundred wills that were probated in Hamilton County Ohio in 2014 By comparing the date of execution of these wills with the date on which the testator died this analysis provides a glimpse of when testation in fact occurs Ultimately when considered alongside the theoretical implications of testation\u27s timing this original empirical analysis can assist policymakers in crafting the law of willauthenticatio

A Therapeutic Jurisprudential Framework of Estate Planning

The psychological consequences of the law of succession largely have been overlooked This oversight is confounding given that the estate planning and probate processes are emotionally charged and raise a number of psychological issues Filling this analytical void this article examines the estate planning process from a therapeutic jurisprudential perspective and makes two primary contributions to the study of the law of succession First the article identifies the psychological consequences of the estate planning process Although the analysis suggests that certain aspects of preparing and implementing an estate plan can negatively affect one\u27s psychological wellbeing the analysis also reveals that estate planning has positive psychological consequences which contribute to the process\u27s overall therapeutic nature Second the article develops the therapeutic and antitherapeutic qualities of estate planning into a framework through which to analyze how reforms of the law of succession will affect the therapeutic potential of the estate planning process Ultimately this article encourages the continued use of the therapeutic jurisprudential framework in the estate planning context and seeks to inspire further therapeutic jurisprudential analysis throughout the law of successio

A Social Welfare Theory of Inheritance Regulation

The law of succession grants donors broad freedom to decide how to distribute their property upon death. It does so in hopes of increasing social welfare in two general ways. First, freedom of disposition generates socially beneficial estate planning decisions. In particular, donors are in the best position to evaluate their own specific circumstances and to make decisions that, on the whole, produce the greatest utility from the transfer of their estates. Second, the donor’s autonomy over estate planning decisions incentivizes socially beneficial behavior, such as productivity during the life of the donor. Because the law views freedom of disposition as maximizing social welfare in these ways, it generally defers to the estate planning decisions of individual donors. Although the law typically relies upon the choices of autonomous decision-makers to maximize the social welfare that is generated by the inheritance process, it regulates inheritance in some circumstances through both prescriptive and proscriptive restrictions of freedom of disposition. Prescriptive restrictions are rules that require donors to distribute property in certain ways thereby preventing them from transferring property to other donees. By contrast, proscriptive restrictions are rules that directly limit freedom of disposition by prohibiting donors from distributing property in particular ways. Scholars have catalogued the various ways that the law regulates inheritance; however, they typically examine them in isolation without developing an overarching framework for analyzing inheritance regulation. To better understand the role that inheritance regulation plays within the law of succession, this Article analyzes restrictions of freedom of disposition in relation to the law’s social welfare goals. It does so both by recognizing defects in the donor’s decision-making process that suggest she might make suboptimal estate planning decisions and by identifying potentially socially detrimental incentives that freedom of disposition can produce. It then explores how particular restrictions of freedom of disposition address these social welfare concerns. Ultimately, this analysis explains how inheritance regulation can maximize social welfare and develops a framework that can aid policymakers in deciding when inheritance regulation is appropriate and how such regulation should be crafted

Minimizing Probate-Error Risk

Probate-error risk is the possibility that a court will incorrectly assess the authenticity of a will. By prescribing the method courts use to evaluate the authenticity of wills, the law of will-execution allocates probate-error risk between false-positive outcomes and false-negative outcomes. When a court validates an inauthentic will, it creates a false-positive outcome. When a court invalidates an authentic will, it creates a false-negative outcome. Because false-positive outcomes result in the admission to probate of inauthentic wills and false-negative outcomes result in the denial of probate of genuine wills, both can be characterized as probate errors. This framework has been used to identify the problem with the conventional law of will-execution, which is that it generates unnecessary probate errors by heavily allocating risk in favor of false-negative outcomes. It has also clarified the objective of will-execution reform, which is to reallocate risk more evenly between false-positive outcomes and false-negative outcomes so that the total number of probate errors is minimized. This Article applies this framework more broadly to analyze potential methods of will-execution reform. Specifically, this Article identifies the various components of the law of will-execution that can be altered to reallocate probate-error risk and evaluates how different methods of reform can be manipulated to reallocate risk to varying degrees. With a better understanding of what is possible, state policymakers may be more willing to break away from the conventional law and implement change