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

Decoupling the Law of Will-Execution

(Excerpt) This Article proceeds in four parts. Part I explains the context of reform, including the traditional law of will-execution, the criticism of strict compliance, and the reform movement. Next, by explaining the purpose of testamentary formality, Part II serves as the foundation for decoupling the analysis of will formalities from the analysis of strict compliance. Part III completes the process of decoupling the law of will-execution by examining the purpose of strict compliance. Finally, Part IV explores the implications that the recognition of the independent purposes of will formalities and strict compliance has for the law of wills. Specifically, it explains how this framework clarifies the costs and benefits of reform and how such an analysis ultimately galvanizes the arguments in favor of change

Conditional Purging of Wills

The laws of most states unconditionally purge a testamentary gift to an individual who serves as an attesting witness to the will. Under this approach, the will is valid despite the presence of an interested witness, but the witness forfeits all, some, or none of her gift, depending on the particularities of state law. While the outcome of the interested witness’s gift varies amongst the states that adhere to this majority approach, the determination of what the interested witnesses can retain is the same. The only consideration is whether the beneficiary is also a witness; whether her gift is purged is conditioned on nothing else. This Article illuminates a substantial, yet largely overlooked, minority approach to the purging of wills–an approach that, contrary to the majority approach, conditions a testamentary gift on considerations other than simply whether the beneficiary served as an attesting witness. This conditional approach to purging is of three types. First, some states condition an interested witness’s gift on considerations related to the testator’s subjective intent. Second, other states condition the purging of testamentary gifts on procedural considerations regarding how the testator executed the will or how the will was proven at probate. Finally, one state conditions gifts to an interested witness on considerations concerning the substance of the gift. While generally ignored by legal scholars, conditional purging of wills has steadily grown in favor among policymakers, with ten states now following this approach, including California and Texas. Given state legislators’ increasing appetite for conditional purging, a critical analysis of this minority approach is needed now, more than ever, to ensure that conditional purging statutes are founded upon sound policy considerations. To meet this need, this Article analyzes conditional purging statutes in light of the law of will’s overarching goal of accurately and efficiently carrying out the testator’s intended estate plan. Ultimately, this Article argues that this minority trend is largely misguided because existing conditional purging statutes (1) do not protect the testator from wrongdoing aimed at undermining her intent, (2) make the probate court’s task of administering the decedent’s estate less efficient, and (3) have proven difficult for policymakers to clearly draft and for probate courts to predictably implement. State policymakers should therefore either adhere to the majority approach or more carefully tailor conditional purging statutes to further the policy goals of the law of 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