Exploring the Expressive Dimension of Inheritance Law

Deborah S. Gordon, Letters Non-Testamentary, 62 U. Kan. L. Rev. 585 (2014).

We often get so caught up in the nooks and crannies of small corners of the doctrinal universe, examining tiny subsections of the Uniform Probate Code or the Uniform Trust Code with microscopic scrutiny, that we often forget about the big picture in our field. Deborah Gordon takes us back to that macro level in her thoughtful article, Letters Non-Testamentary. Like Daphna Hacker’s Soulless Wills, 35 Law & Social Inquiry 957 (2010), this article reminds us about the expressive dimension of inheritance law.

Gordon’s research focuses on language, emotion and gender in inheritance law. She began this work in her previous article, Reflecting on the Language of Death, 34 Seattle U. L. Rev. 379 (2011) and her new article continues this theme. It considers the connection between letters written in anticipation of death that are not valid testamentary instruments and their impact on inheritance law as a whole.

Gordon begins the article with an excerpt from a letter written by an Afghani politician who knew she was the target of Taliban militants. Addressed to her two daughters, the letter is, as Gordon describes it, “an epistolary response to an awareness of impending death.” The letter is straightforward as the writer tells her daughters, “I hope I will come back and see you again, but I have to say that perhaps I will not. There have been threats to kill me on this trip. Maybe this time these people will be successful.” She goes on to tell her daughters that she is willing to sacrifice her life so that they and all Afghan girls may have a better life. This powerful and poignant missive is a reminder to the reader of the overarching theme of much of our work as inheritance law scholars and practitioners – to bring order to the affairs of people who seek our help as they contemplate death. This writer goes in her letter to say, “If I am killed and I don’t see you again. I want you to remember a few things for me. . . You have my authority to spend all the money I have in the bank. But use it wisely and use it for your studies.”

Gordon moves from this opening example to connect letter writing to the impulse to express one’s love for family or give guidance to them. While they do not always fit neatly into a doctrinal framework that treats them as “valid” testamentary instruments, such letters yield much about the writer’s intent. Some of these are letters written in the face of imminent death, a literary vehicle not unknown to literature, history and popular culture as Gordon notes. Others are vehicles for wisdom and life lessons.

In the article, Gordon develops a framework for how to evaluate the impact of such letters on American inheritance law—an area that she notes has receive little scholarly attention. Gordon creates two categories—the first includes letters that are meant to be valid wills or codicils but somehow fail and the second contains letters that are deliberately not meant to be testamentary, thus the title of her article (which is also a clever play on the letters of administration granted to personal representatives in probate.) She considers “how informal letters have influenced the development and coherence of inheritance law, focusing specifically on letters that have been offered and construed as wills, codicils and trusts.” Gordon also uses linguistic analysis to identify the letter as a specific genre that has “unique communicative purposes” for its writer. And she engages in close, textual examination of specific letters put forth in probate cases.

Gordon applies her framework first to courts as “unintended readers” of “homemade” letters who sometimes find testamentary intent in the often informal and casual language used by letter writers. She notes the difficulty that courts face in trying to draw a final, formal testamentary intent in documents that combine language that appears to make final, testamentary gifts and language that gives lots of homespun advice like a father’s advice to a son on how to preserve their pork for the cold winter to come.

Gordon discusses the case of one of America’s best loved newsmen, Charles Kurault. A court found that a letter to Kurault’s mistress was in fact a valid codicil to his previous will leaving all of his property to his wife. Even though the letter appeared to indicate a future intent to have his lawyer do the paperwork to make a transfer of property in Montana, the court found a valid present intent to make a testamentary gift despite the future nature of the language. The court rather inexplicably found that words like “inherit” were reason enough for the court to find the letter constituted a valid codicil, one which subsequently wreaked havoc on Kurault’s wife in terms of taxes.

Gordon notes the “scattered and inconsistent” decisions of courts in this area. Similarly, Gordon notes how courts are faced with the difficult analysis of language and whether it is precatory or mandatory for purposes of determining if the writer intended to create a valid trust. Whether one subscribes to the notion that courts are applying coherent doctrine or simply engaging in results-oriented jurisprudence to reward one beneficiary over another, the reader is left to contemplate the challenges probate courts face when interpreting documents in which human beings try to translate fears, hopes and wishes into a writing.

Gordon then moves on to letters that are clearly not intended to make final bequests, for example letters that exist in addition to formal instruments and do not contradict them but rather amplify them. She applies linguistic analysis to identify different genres of writing and to distinguish letters from other genres of written discourse. Gordon notes that letters contain distinct elements that set them apart from other written forms, e.g., salutation, securing of good will, narrative, petition and conclusion. This section is particularly illuminating to those not well versed in this kind of analysis and Gordon is persuasive in her argument that letter writing is the most deliberatively social form of written communication. This observation gives us insight into why letters have a particularly unique role in inheritance law, with its focus on testator intent and familial relationships. The intimate nature of the genre lends credence to Gordon’s linkage of these kinds of letters and the larger project of inheritance law—to express the subjective intent of not only individual decedents but society as a whole.

Finally, Gordon turns to a third type of letter that she labels the “letter of wishes.” This kind of letter has been touted by contemporary practitioners, how-to estate planning books and newspaper articles as a way to give more personal and specific advice to a trustee, for example, about how the grantor would like the trust funds allocated. Such letters are explicitly non-testamentary and decidedly less personal than the letters Gordon describes earlier in the article. However, she concludes “these supplemental letters have an important role to play in the planning process.” The motivation behind these letters is often fear on the part of the writer that to put such specific wishes in a formal, testamentary document might interfere with the efficient or uncontested administration of the estate. This insight gives the reader much to contemplate in terms of the trend toward less formalism and fewer intent-defeating rules in inheritance law and the social drivers that underlie that trend.

Given their power, Gordon concludes that courts should make some kind of room for these kinds of written communications, which she predicts will only increase in digital form in the future. After reading her article, I agree. However, Gordon does not give us much insight into the ways in which courts can make such room, given policy concerns like evidentiary reliability. While that is not the purpose of this piece, I hope to see her grapple in her future work with how to expand current doctrinal constraints to allow courts to consider such letters while still being cognizant of the risks involved in giving informal documents legal status.

Unlike formal wills which are not addressed to particular individuals, Gordon reveals how letters non-testamentary can “fill emotional, rhetorical and even legal gaps” and how they address “the reality of death as a frightening event that involves messy emotions and relationships.” In elegant prose, she has given those of us who research and practice in inheritance law a valuable gift—a reason to pause to reflect once again on the significance of our field and its humanity.

Cite as: Paula Monopoli, Exploring the Expressive Dimension of Inheritance Law, JOTWELL (June 30, 2015) (reviewing Deborah S. Gordon, Letters Non-Testamentary, 62 U. Kan. L. Rev. 585 (2014)), http://trustest.jotwell.com/exploring-the-expressive-dimension-of-inheritance-law/.

Too Young for a Will?

Mark Glover, Rethinking the Testamentary Capacity of Minors, 79 Missouri L. Rev. 69 (2014).

The primary goal of the law of wills is to allow individuals to decide how to distribute their property upon death. Yet, the vast majority of states prohibit minors under the age of 18 from distributing their property through a will. Interestingly, few scholars have questioned the reasons underlying this categorical denial of testamentary capacity to minors.

In his 2014 article, Rethinking the Testamentary Capacity of Minors, Professor Mark Glover examines the possible rationales for the rule and concludes that none of these justifications warrant denying all minors testamentary freedom. First, he addresses the justification most often cited by courts—the need to protect minors from the consequences of their own foolish decisions. Although no one would dispute that children do not always consider the potential consequences of their decisions (neither do adults), Professor Glover quickly illustrates that the testamentary context is probably the one area in which children need the least protection from the consequences of their imprudent decisions. To put it bluntly, a will only takes effect upon the testator’s death. As such, a child testator (like other testators) will not be alive to suffer the consequences of her foolish testamentary decisions.

Professor Glover also illustrates the inconsistency in the law’s treatment of minors in the testamentary context as compared to other situations. For example, minors need protection when they enter into contracts that are not in their best interests or make inter vivos gifts that they cannot afford. In those contexts, unlike the testamentary context, children will be alive to experience the consequences of their decisions. However, the law does not deny children the ability to enter into contracts or make lifetime gifts, but instead allows them to revoke or disaffirm contracts and lifetime gifts. Until then, the contract or lifetime gift is valid. In contrast, a will, which is always revocable, and thus provides children (and all testators) with the protections that lawmakers have deemed sufficient in cases involving contracts and lifetime gifts, is automatically void if executed by a child testator.

Professor Glover analyzes two other possible justifications for denying minors testamentary capacity. He explores whether lawmakers might be treating the age of majority as a proxy for the minimal mental competency that the law requires of all testators. He also examines whether, by denying minors testamentary capacity, lawmakers intended to create a forced parental inheritance given that parents are generally the intestate heirs of their minor child’s estate unless the minor is survived by a child or spouse.

Professor Glover demonstrates that these possible justifications do not support a categorical age restriction on testamentary capacity. First, he argues that while young children and some adolescents lack the mental capacity to understand the nature and extent of their property, who their family members are, and how their property will be distributed under the will, many adolescents do possess the requisite mental capacity. However, with few exceptions—for example, if a minor is married, emancipated, or a member of the armed services—the vast majority of states do not give legal effect to a will executed by a minor even if the minor possessed the requisite mental capacity to execute the will.

Second, Professor Glover concedes that parents may arguably deserve to receive part of their deceased child’s assets given their financial and intangible contributions to the child, and the likelihood that they contributed to the child’s ability to accumulate wealth. Nevertheless, he convincingly argues that the law can compensate parents for their contributions by creating an explicit forced parental share (similar to the forced spousal share) rather than categorically denying all minors testamentary freedom.

I was thoroughly persuaded by Professor Glover’s arguments rejecting the possible justifications for the age restriction on testamentary capacity. As I read the article, I thought of other areas where the law has determined that children have the mental capacity to make decisions that, in my opinion, have much greater significance than disposition of one’s property upon death. Lawmakers have determined that minors possess the mental capacity to commit serious crimes. They have also determined that minors have the mental capacity to consent to medical treatment for sexually transmitted infections, substance abuse, and mental health. The law has also determined that minors have the mental capacity to make the irrevocable decision to place a child for adoption. Lawmakers have also decided that a girl who is found by a court to be a mature minor has the mental capacity to consent to an abortion. A few courts have also held that mature minors have the mental capacity to refuse lifesaving treatment—a decision with greater dire consequences (death) than executing a will.

I was also persuaded by Professor Glover’s main proposal that lawmakers adopt a rebuttable presumption of incapacity for minors that could be rebutted by evidence that the minor possessed the requisite mental capacity to execute a will. If we are concerned that minors may unjustly disinherit parents who have supported them and made it possible for them to accumulate wealth, Professor Glover suggests that lawmakers give parents a forced share of the minor’s estate rather than the current result whereby parents receive the child’s entire estate when minors are denied testamentary capacity.

I am somewhat skeptical about Professor Glover’s alternative proposal. Professor Glover recognizes that lawmakers may be unwilling to abolish the categorical age restriction for testamentary capacity so he suggests an alternative approach that might gain lawmakers’ support. He proposes that minors be allowed to execute a valid will if their parents consent. Although I am sympathetic to this pragmatic alternative proposal, I fear that parents’ current position (in most cases) as the intestate heirs of their child’s estate creates a potential conflict of interest that may color their assessment of the child’s mental capacity to execute a will. In addition, while executing a will requires the testator to confront his own mortality, a task that may be particularly difficult for children, it is infinitely more difficult for a loving parent to entertain the possibility that the minor child will die. As such, some parents will not allow a child to execute a will regardless of the child’s mental capacity.

I agree that lawmakers may be more amenable to granting children testamentary capacity if their parents consent so it is important that scholars and lawmakers explore approaches that include parents in their minor child’s decision to execute a will but also address parents’ potential conflict of interest and difficulty grappling with the possibility of their child’s death. Professor Glover’s article is a great start to this important conversation.

Cite as: Solangel Maldonado, Too Young for a Will?, JOTWELL (June 3, 2015) (reviewing Mark Glover, Rethinking the Testamentary Capacity of Minors, 79 Missouri L. Rev. 69 (2014)), http://trustest.jotwell.com/too-young-for-a-will/.

Organ-izing Your Estate

Reid Kress Weisbord, Anatomical Intent, 124 Yale L.J.F. 117 (2014).

Professor Reid Kress Weisbord’s article astutely addresses the growing problem of demand outpacing supply for organ donations needed for lifesaving medical procedures. Professor Weisbord’s discussion of the debate surrounding whether compensation should be allowed for posthumous organ donations to encourage higher donation rates focuses on the parameters of a proposed regulatory system to respect the wishes of the donor. This respect for the decedent’s preference for whether their organs may be sold by his or her estate forms the foundation of the article and is referred to by Professor Weisbord as “anatomical intent.”

The article describes a system that would allow compensation for organ donations by striking a balance that both encourages donation by avoiding unnecessary hurdles, and yet still deters fraud and undue influence. Professor Weisbord addresses this balancing act by suggesting specific parameters for registration of anatomical intent that are “sufficiently secure to protect the donor but sufficiently simple to avoid deterring willing donors from registering their intent,” and default rules when no expression of anatomical intent has been made that “respect the autonomy, privacy, and religious liberty interests of non-donors by presuming that the decedent prefers to prohibit the postmortem sale of his or her bodily remains absent an affirmative indication of intent to donate.”

Professor Weisbord models his proposed registration process on the current gratuitous organ donation system, which includes over half of organ donor registrations coming from DMV registration, but he notes that security would have to be heightened to counter the increased incentives for abuse that a for-profit organ donation system could create. The article also notes that an over secure system can fall victim to inertial forces and procrastination, and uses the example of will formalities that while protecting the testator from undue influence also contributes to a majority of Americans dying without executing a will. Professor Weisbord suggests solutions that include adding security to the current system of organ donation registration and borrowing the less burdensome protections provided through will formalities to create “efficient procedures [that] would strike a sensible balance between security and simplicity.” A suggested system for organ donor registration is provided that would require in-person registration at a state DMV, and periodic re-registration of anatomical intent. Other protections suggested include requiring a one-on-one interview of the registrant by a DMV official that is recorded to both confirm and document anatomical intent.

In addressing default rules for when anatomical intent is not recorded prior to death, the article explores the benefits and drawbacks of opt-in versus opt-out default rules. In exploring whether majoritarian defaults, like those used in inheritance law, would be helpful in this context, the article notes that survey results show that a majority of individuals are in favor of organ donation. However, Professor Weisbord pays due respect to minoritarian views against organ donation, which often arise out of deeply rooted religious views or other convictions, in arguing that the default should be actual intent, and thus a person must affirmatively opt-in through registration for their organs to be sold after their death.

I highly recommend this article, which makes a well-reasoned argument for respecting donative intent and encouraging organ donation through a regulated commercial market of posthumously donated organs.

[Special thanks to the outstanding assistance of Jennifer Wissinger, J.D. Candidate May 2015, Texas Tech University School of Law, for her assistance in preparing this review.]

Cite as: Gerry W. Beyer, Organ-izing Your Estate, JOTWELL (May 4, 2015) (reviewing Reid Kress Weisbord, Anatomical Intent, 124 Yale L.J.F. 117 (2014)), http://trustest.jotwell.com/organ-izing-your-estate/.

Law on the Books Meets Law in Action

David Horton, Wills Law on the Ground: Empirically Assessing Probate Reform, 62 UCLA L. Rev. (forthcoming, 2015), available at SSRN.

This article contains a fascinating study of a year in the life of a probate court in one California county. Professor Horton uses his data to examine the fit between existing wills doctrine (derived from the small number of disputed estates that become reported appellate decisions) and routinized probate administrations. In other words, how does wills law on the books compare to “Wills Law on the Ground”? Horton frames his analysis within the existing debate in the field between “formalists” (who favor strict compliance with wills act rules even if intent-defeating) and “functionalists” (who reject formalism for its own sake favoring an intent-serving-standards-based wills act). Most state lawmakers and judges sit squarely in the former category; whereas, the latter faction includes the brain trust behind the Restatement (Third) of Property: Wills (Restatement) and the Uniform Probate Code (UPC). Part I of Horton’s article aptly describes several areas in will execution (attestation, holographic wills, and harmless error) and will construction (ademption by extinction and antilapse) where the contrast between the two camps is most stark.

Part II describes Horton’s empirical methodology and reports the results. The study examined every probate administration in Alameda County, California (CA) from January 2008 to March 2009 relating to decedents dying in 2007.1 After discarding abandoned matters and those involving pour-over wills, the dataset consisted of 571 cases. Fifty-seven (57) percent of these decedents died with a will and 43 percent without. After providing descriptive statistics on testate versus intestate estates (cost, length, litigation, beneficiaries), Horton analyzes how the data informs the issues that drive a wedge between formalists and functionalists.

Reformers contend that the attestation requirement is a relic of a time when deathbed wills were the norm and currently operates to deny probate to otherwise valid wills. While Horton’s data generally supports this claim, he cautions that in a sizable minority of cases “[w]itnesses protect . . . gravely ill testators and furnish additional proof of testamentary intent.” Traditionalists oppose the admission of holographic wills on the grounds that they are unreliable and breed litigation. The holographic wills in the sample support the second objection (“[they] do seem to spawn more than their fair share of litigation”) but not the first (they appeared authentic and voluntary).

The study is least illuminating on the most divisive will execution issue: harmless error. Unfortunately, this curative doctrine was not available in CA until January 1, 2009 (when over half of the sampled estates had closed). After acknowledging this limitation, Horton reports that none of the litigants invoked harmless error (tempering formalists’ claims about the rule overburdening courts) and the data supports extending harmless error to all signature defects (pushing back against the view that the doctrine can never apply to an unsigned instrument).

With regard to ademption by extinction, CA is still a rule-based identity jurisdiction rejecting the standard-based intent theory of the UPC/Restatement. Since only 6 percent of the reported cases involved ademption, Horton infers that “ademption is unlikely to be a fount of litigation.” Moreover, most of the adeemed bequests involved personal property chosen as “a tribute to a particular person, rather than as part of [a] property-distribution scheme.” This called into question the reformist doctrine that presumptively provides the monetary value of an adeemed asset to a beneficiary. However, since financial assets were adeemed in a significant minority of cases, Horton cautions against “a reflexive rule of non-compensated ademption.” This analysis leads to an endorsement of the UPC regime, which presumes ademption without remuneration but allows a beneficiary to present evidence of a testator’s contrary intention.

Horton also addresses the issue of whether survivorship conditions should prevent application of an antilapse statute. The traditional view is that they do. The UPC and Restatement presume the opposite—that words of survivorship are not sufficient, without additional evidence of intent, to opt out of the antilapse regime. The concern of reformists is the rote inclusion of survivorship clauses in form wills without an understanding of their legal effect. The subject wills provide modest support for the legitimacy of this issue—of the five testators who employed survivorship provisions, three were unnecessarily attached to non-antilapse triggering bequests. Horton advocates a middle-ground approach—flipping the UPC/Restatement presumption to reflect the traditional view (generally enforce survivorship conditions), but in a nod to reformers, allow the beneficiary to “prove that the testator did not intend to supplant antilapse.”

I will leave debate over the quality of the dataset or the statistical analysis employed (or not employed, as the case may be) to the empiricists. Horton himself cautions against drawing any “sweeping conclusions” from his data given its limited nature. Instead, I commend this article to you based on the cogency of the analysis of existing wills doctrine in light of insights gleaned from this survey of law in action.

  1. Professor Horton utilized this same dataset in another article examining the probate process. See David Horton, In Defense of Probate: Evidence from Alameda County, California, 103 Geo. L.J. (forthcoming, 2015). []
Cite as: Kerry Ryan, Law on the Books Meets Law in Action, JOTWELL (April 7, 2015) (reviewing David Horton, Wills Law on the Ground: Empirically Assessing Probate Reform, 62 UCLA L. Rev. (forthcoming, 2015), available at SSRN), http://trustest.jotwell.com/law-on-the-books-meets-law-in-action/.

The Impact of Federal Law on a Decedent’s Digital Assets

Naomi R. Cahn, Probate Law Meets the Digital Age, 67 Vand. L. Rev. 1697 (2014), available at SSRN.

Recently, estate planners and scholars have begun to grapple with the problem of transferring digital assets at death. In Probate Law Meets the Digital Age, Professor Naomi Cahn adds an interesting new dimension to this relatively new issue. She focuses on the effect of the Stored Communications Act (“SCA”) on estate administration. Although the SCA does not affect a fiduciary’s ability to distribute assets once they are discovered, it affects the fiduciary’s ability to examine on-line accounts to discover those assets.

The SCA, which was enacted nearly two decades before the development of Facebook, was passed in response to privacy concerns related to the internet. It was not aimed at transfers at death, but it certainly can impact probate administration in an era when most people have some sort of on-line presence. This has created a great deal of uncertainty for internet service providers as well as for fiduciaries, including personal representatives, agents, conservators, and trustees. As Professor Cahn points out in her piece, this uncertainty currently impacts anyone who dies with an e-mail account.

At its most basic level, the SCA does two things. First, it limits the government’s ability to require internet service providers to disclose information about subscribers unless an exception applies. The most notable exception is when the disclosure occurs with the consent of the subscriber or the intended recipient of an electronic communication. Second, the SCA limits the ability of the internet service provider to voluntarily disclose the information. Although a court could interpret the SCA to allow disclosure by, for example, determining that the fiduciary stands in the place of the decedent for consent purposes, this result is far from certain.

In Part II of her article, Professor Cahn discusses difficulties related to the inheritance of digital assets under state law. Digital assets include any information that is stored on a digital device or on the internet, including electronic documents, e-mails, bitcoins, music, social media profiles, photos, and websites. These assets are a unique form of intangible asset. Unlike other more traditional intangible assets, such as trademarks and copyrights, digital assets can raise unique privacy concerns. The rights of the account owner are typically governed by a terms-of-service agreement that, in turn, is governed by state law. This agreement may give the account owner an ownership interest in an asset that can be transferred at death, or it may give the account owner a license that terminates at death.

In Part III, Professor Cahn analyzes federal statutes that impact the inheritance of digital assets. Here, she focuses on the SCA and notes that it was concerned only with protecting the privacy of the account holder; it was not concerned with ownership of the account or ownership of communications. The SCA sets out the procedures that the government must follow to force an internet service provider to disclose information, and it also sets out penalties for unauthorized disclosures. She notes that while an internet service provider may disclose non-content based communications (the envelope rather than the letter) to a fiduciary, it may only disclose content-based communications in seven situations, including with the consent of the account holder. Unfortunately, the SCA does not explicitly address whether a fiduciary automatically has lawful consent to access the decedent’s digital assets. This has caused some internet service providers to refuse to disclose information rather than risk liability.

The SCA House Committee Report emphasized that the account holder’s consent does not need to be explicit, and it gives examples of acceptable forms of implied consent. Professor Cahn argues that state-recognized fiduciaries should be included within the lawful consent exception. She notes that the fiduciary obligations of executors to administer estates in the best interest of the beneficiaries are frustrated if they cannot have access to digital assets.

In Part IV, Professor Cahn proposes changes to existing state and federal laws. She first argues that there is a simple way to legislatively fix federal law: just add “or state-recognized fiduciary” to the list of people who can provide lawful consent for disclosure. Despite the apparent simplicity of this solution, Professor Cahn recognizes the inherent political difficulty of trying to change a law that deals with sensitive issues of national security and privacy. As an alternative to a specific legislative change, Professor Cahn argues that courts should interpret the law to permit fiduciary access.

In the absence of federal legislation and judicial decisions interpreting federal law, Professor Cahn argues that states should enact laws that define lawful consent and that define the scope of access to clarify whether digital assets should be treated the same as non-digital assets. Although states cannot require federal courts to interpret federal statutes in a specific way, those courts can seek interpretive guidance from state laws.

Professor Cahn has written an extremely thought-provoking piece. I tend to agree that a decedent would want a named fiduciary to have access to his or her digital assets. Implying that consent makes all the sense in the world to me. That said, I probably would come out slightly differently with respect to fiduciaries who were not expressly named by the decedent, such as administrators of an intestate estate. Although I have no basis for knowing this, something tells me that decedents generally would only want expressly-named people to have unfettered access to their digital life. Regardless of my personal opinion on that issue, I cannot help but conclude that Professor Cahn has made a wonderful contribution to this very important and current issue.

Cite as: Sergio Pareja, The Impact of Federal Law on a Decedent’s Digital Assets, JOTWELL (March 9, 2015) (reviewing Naomi R. Cahn, Probate Law Meets the Digital Age, 67 Vand. L. Rev. 1697 (2014), available at SSRN), http://trustest.jotwell.com/the-impact-of-federal-law-on-a-decedents-digital-assets/.

Erasing the Lines Between Contracts, Gifts, and Wills

Adam J. Hirsch, Formalizing Gratuitous and Contractual Transfers: A Situational Theory, 91 Wash. U.L. Rev. 797 (2014).

Imagine that I asked your opinion about a dispute concerning the purchase of a new car; or whether I was entitled to a necklace my friend promised to give me; or about the devise of land by my father. You would likely analyze each transaction against the rules of contracts, gifts, and estates and trusts, respectively. Was there a signed contract for the purchase of the car? Was the necklace delivered? How many witnesses signed the will? As Adam Hirsch’s Formalizing Gratuitous and Contractual Transfers: A Situational Theory points out, however, the laws of contracts, gifts, and estates and trusts are all fundamentally about transfers. And perhaps we could considerably simplify the law if we abolished doctrinal categories and instead focused on the circumstances under which transfers occur.

At present, each doctrinal category has its own set of requirements for a valid transfer. Broadly speaking, contracts must comply with the statute of frauds; gifts must be delivered, and wills must be written, signed, and witnessed. But each of these formal requirements has exceptions. Lots and lots of exceptions, as well as inconsistencies, and Hirsch details most of them. These exceptions have sprung up over time, as legislatures and judges try to account for the varying circumstances under which transfers occur.

Hirsh argues that the situational context of the transfer—and not doctrinal category—should dictate the optimal level of formality that is required for a valid transfer. He identifies three different situational contexts. First, there are “spot transfers,” where the exchange or handing over occurs right on the heels of making the decision to transfer. Examples of spot transfers include short-term contracts and inter vivos gifts. Second are “anticipatory transfers,” where an interval of time elapses between the decision to make the transfer and the transfer itself, as with wills and relational contracts. Last, there are “eleventh hour” transfers, where the decision to make a transfer occurs very close to death. Examples include gifts causa mortis and deathbed wills. Hirsh suggests that each of these situational contexts necessitates a different level of formal requirements. Critically, however, these formalities could be the same across all doctrinal categories. For example, lawmakers could allow gifts to be promised in the present but given (i.e., delivered) in the future, provided that donors formalized the gift the same way they would formalize a will.

Hirsch suggests that applying rules across doctrinal lines will simplify existing doctrines. As he reviews the labyrinth of exceptions to existing rules (such as all the instances in which the statute of frauds does not apply, holographic wills, harmless error rules, and so forth), he makes the case for the necessity of reform. Still, I’m not entirely certain that we will eliminate exceptions and inconsistencies by focusing on situational context. Hirsch’s article is focused exclusively on the timing of the transfer, but timing is only one element of a transaction’s overall context. Unless we confine “situational context” to timing alone, there are plenty of ways to distinguish one transfer from another, which means there are ample opportunities to create exceptions and create apparent inconsistencies.

For me, however, the hallmark of a good article is when I continue to play with the ideas the article presents even when I’m done reading it. As law students, we learned by doctrinal category and as professors we often teach by doctrinal category. But Hirsch’s article encourages us to think outside the box and across doctrinal lines. In doing so, Hirsch suggests reforms that may make it easier for people to engage in legally valid transfers.

Cite as: Sarah Waldeck, Erasing the Lines Between Contracts, Gifts, and Wills, JOTWELL (February 4, 2015) (reviewing Adam J. Hirsch, Formalizing Gratuitous and Contractual Transfers: A Situational Theory, 91 Wash. U.L. Rev. 797 (2014)), http://trustest.jotwell.com/erasing-the-lines-between-contracts-gifts-and-wills/.

The Heir Who Laughs, Laughs Last

John V. Orth, “The Laughing Heir” What’s So Funny?, 48 Real Prop., Tr. & Est. L.J. 321 (2013).

Professor John V. Orth takes a look at the limitations of intestate succession in his recent article, “The Laughing Heir” What’s So Funny. Unless an individual is the last human being on earth, when he or she dies, a surviving relative will exist. How closely related should the relative be to the decedent in order to inherit the decedent’s estate through intestate succession?

Common law canons of inheritance did not include a decedent’s ancestors as his or her heirs. Surviving spouses were also excluded. If a decedent had no descendants, his or her nearest collateral relatives inherited the estate. As long as there was proof of a blood relationship, a remote collateral could inherit the decedent’s estate.

Now, in the United States, surviving spouses are heirs. Also, ancestors may inherit when a decedent is not survived by a spouse or descendants. About half of states have unlimited collateral succession. The other half limit intestate succession by collaterals based on either parentelic lines, degree of relationship or some combination of the two. When limitations are strict, the likelihood of a decedent’s estate escheating increases. So the question becomes, who has the last laugh? The state or a remote collateral relative.

Professor Orth suggests that a 1935 article by Professor David Cavers influenced states to adopt limitations on intestate succession. In the article, Cavers suggested that only descendants of a decedent’s parents (first parentelic line) should inherit through intestate succession. His suggested limitation was based on the shift from rural to urban life. He argued that relatives who are scattered in different locales have no “sentiment of relationship” and “family pride” diminishes. For such individuals to inherit is a social injustice, according to Cavers, because they suffer no sense of loss. In the years following the Cavers article, many states began to place limitations on intestate succession. Professor Orth challenges the Cavers assertion. No state intestate succession statute lists the emotional reaction of the decedent’s death as a requirement for inheritance. There are plenty of close relatives who have no emotional connection to a decedent. So, if intestate succession is an “estate plan by default” then why do we impose any limits?

Professor Orth leaves us to ponder whether a state should have the last laugh. I would love to see an article answering the question in the negative. Both Professor Orth and I teach in North Carolina where the intestate succession limitation is the second parentelic line (descendants of a decedent’s grandparents) and fifth degree of relationship. Most of my students think this limitation is too rigid. I tend to agree with them. Such limitation eliminates relatives who are a far cry from “laughing.” As an example, since both of my “ninety- something” year old grandmothers are alive, my children are blessed to know their great-grandmothers—third parentelic line relatives. According to North Carolina and the Uniform Probate Code, such great-great mothers are too remote to inherit from my children through intestate succession. If they were my children’s only surviving relatives, my children’s estates would escheat.

When I teach Decedent’s Estates, we look at the case of Newlin v. Gill1, a North Carolina case where the first cousin of the decedent’s mother claims that he is entitled to the decedent’s estate. Unfortunately, as a third parentelic line relative, he was not able to inherit through intestate succession and the decedent’s estate escheated.

Professor Orth says the only reason to limit intestate succession is to increase the chances that the state will receive the windfall. Is the government better able to make use of the funds than private individuals? There is no consensus on the answer. But, if intestate succession statutes are to replicate what an individual would do had he taken the time to draft a will, then most individuals do not list the state as their residuary beneficiary. So, who would you rather have laugh all the way to the bank? A first cousin once removed, your great-grandmother, or the state?

  1. Newlin v. Gill, 293 N.C. 348, 237 S.E.2d 819 (1977). []
Cite as: Camille Davidson, The Heir Who Laughs, Laughs Last, JOTWELL (January 5, 2015) (reviewing John V. Orth, “The Laughing Heir” What’s So Funny?, 48 Real Prop., Tr. & Est. L.J. 321 (2013)), http://trustest.jotwell.com/the-heir-who-laughs-laughs-last/.

Compassionate Care for the Living and the Dying

Lois L. Shepherd, The End of End-of Life Law, 92 N.C.L. Rev. 1693 (2014).

As an elder law attorney, I spent my career helping my clients prepare for incapacity and death. A part of that preparation entailed assisting them with the execution of living wills and/or other health care directives. My goal was to ensure that their wishes with regards to end-of-life care were known and respected. Because of my experiences comforting and counseling sick and dying clients I have spent my academic career researching and writing about the ethical and legal issues surrounding end-of-life decision-making.

Two phenomena make a discussion of this subject so important. First, due to the aging baby boomer population, the number of patients who face these types of decisions will continue to increase. Second, as a consequence of the existence of medical technology that enables physicians to artificially sustain life longer, more people will be forced to make end-of-life decisions. Legislatures and courts have taken steps to establish processes that make it easier for patients to provide information to their health care providers about their choices with regards to end-of-life care. Nonetheless, Professor Shepherd claims that laws exclusively designed to help patients express their end-of-life preferences may not be needed. According to Professor Shepherd, the better approach would be for health care providers to treat end-of-life choices similar to other types of medical decisions.

Professor Shepherd starts the article by discussing two instances. The first case involved a conflict between the contents of a living will and the opinion of the patient’s health care agent. Relying on the living will, the hospital asked the patient’s wife who was also his health care agent for permission to remove him from life support. After the wife objected, the hospital successfully obtained a court order to discontinue life support in accordance with the wishes the patient had expressed in his living will. Professor Shepherd opines that the court’s decision may not have respected the patient’s autonomy. She feels that it is problematic that the court determined that the provisions of the boilerplate-filled living will should be given more weight than the directives of the woman the patient was married to for over fifty years. Professor Shepherd’s second example was related to a discussion she had with members of a book club after reviewing changes to North Carolina’s law pertaining to health care agents and living wills. During her conversation with the members of the book club, Professor Shepherd realized that the statutory revisions had rendered the living wills of some of the women obsolete. She also recognized that the law was too complicated and could not provide for all of the concerns raised by the women.

Professor Shepherd asserts that decisions about end-of-life case should be treated similar to other choices that impact the patient’s health. In the remainder of the article, Professor Shepherd sets forth eight principles she feels health care providers should consider when decisions need to be made. The first articulated principle states that physicians should respect and care for patients by balancing their expressed wishes, values and interests. For example, instead of just relying on what is stated in a form, the physicians should speak to those persons who are closest to the patient to ascertain the actions that would best conform to his or her desires. Professor Shepherd next suggests that every patient should have a surrogate decision maker. Therefore, if a patient does not pre-select an agent, one should be appointed for him or her. She also argues that the law should not give pre-selected agents more deference than the ones appointed by default. Thirdly, Professor Shepherd recommends that the law lessen the formalities currently required for an advanced health care directive to be valid. She feels that this will make it easier for persons to indicate their choices. Some jurisdictions have taken this approach by recognizing holographic wills. Fourthly, Professor Shepherd contends that, if possible, patients should not be treated as if they are obligated to stick to their pre-selected choices. In particular, she states “We must be especially cautious in following advance instructions that are contrary to a patient’s current, individualized best interests or contrary to a patient’s current expressions, even if the patient’s decision-making capacity may appear diminished at the time.” Professor Shepherd’s position acknowledges that patients do not regularly update their advanced directives. Hence, those documents may not be reflective of their changing values or life circumstances.

Professor Shepherd’s fifth principle stems from the concern that some end-of-life decisions are made too quickly. She gives two examples of cases where families and patients were given a short period of time to answer the question or whether or not a patient would want to “live like that.” To decrease the possibility of that happening, Professor Shepherd counsels that, absent an emergency, physicians should slow down the process to give patients the opportunity to embrace the altered state of their health. As a sixth principle, Professor Shepherd states that physicians should be encouraged to have more conversations with their patients about all health care matters. The law should not dictate the content of those conversations. Instead, physicians should be compensated in some manner for taking the time to communicate with their patients. In recognition of the fact that the number of patients with some form of cognitive impairment has increased, Professor Shepherd maintains that suitable safeguards need to be put in place. However, those protections must only be aimed at patients who are shown to lack decision-making capacity. In enumerating her principles, Professor Shepherd concludes by proclaiming that physicians should always recognize the reduction of pain and suffering as a crucial goal of patient care.

In light of medical advances and increasing health care costs, conversations about end-of-life care will continue to occur. A significant portion of the discussion will focus on ways to handle surrogate decision-making. The practical suggestions Professor Shepherd includes in her article could be a valuable part of that dialogue.

Cite as: Browne Lewis, Compassionate Care for the Living and the Dying, JOTWELL (December 9, 2014) (reviewing Lois L. Shepherd, The End of End-of Life Law, 92 N.C.L. Rev. 1693 (2014)), http://trustest.jotwell.com/compassionate-care-for-the-living-and-the-dying/.

Transmitting Retirement Accounts: Getting It Right

Stewart E. Sterk & Melanie B. Leslie, Accidental Inheritance: Retirement Accounts and the Hidden Law of Succession, 89 N.Y.U.L. Rev. 165 (2014).

Articles routinely appear that serve up a simple, everyday scenario that has potential to morph into a terribly complex legal situation and in the process, twist legal doctrines pretzel-like to reach the preferred result. We read them, digest them for the nugget to divulge in class, and file them away to cite in a later article. Rare is the article that serves up a simple everyday scenario that could have a disastrous effect that causes us to actually do something to avert the potential disaster. Stewart E. Sterk and Melanie B. Leslie have done just that in their masterful, co-authored piece, Accidental Inheritance: Retirement Accounts and the Hidden Law of Succession.

Starting with the fairy tale beginning of “once upon a time,” the authors bring us back to the days when wills controlled the disposition of property at death. Judges were in control of the probate process, much, if not most, property was probate, and rules had developed to ameliorate the routine mistakes and missteps that occur between the signing of the will and the date of death. Marriage, birth of a child, divorce, and the death of a beneficiary no longer have to upset the decedent’s presumed intent for his heirs, as we had developed rules for the probate process to reach the preferred result. As the non-probate revolution has settled into mainstream life, the issue has become how many of those presumed-intent rules apply. So far pretty standard fare, but consider $9 trillion in retirement accounts (a most significant non-probate asset), a changing American family, and the impending demise of the baby boomer generation, and the consequences have the potential to be dramatic and, in the view of the authors, intolerable.

Sterk and Leslie dig deep into the succession law of retirement accounts to reveal an unsettling and uneven picture as to how those accounts may be distributed upon the participant’s death. Their article first discusses the growing importance of retirement accounts, noting in particular the impact of companies switching from defined benefit plans to defined contribution plans. In many defined benefit plans, there was no asset to pass on after the participant’s (and usually the participant’s spouse’s) death. A consequence was that as employers set up these plans, there was no focus on transfers at death, because there probably wasn’t going to be anything left to pass on. These accounts were not, and are not seen as, will substitutes.

The beating heart of the article is the description of the current state of the law governing the distribution of these accounts at death. Sterk and Leslie analyze the materials in the context of four common life changes: marriage, birth of a child, divorce, and death of a beneficiary. First, they consider those participants who do not try to change their beneficiary designations. They show the different treatment that may be afforded the same person depending on whether the account is an IRA account or one governed by ERISA. Second, they compare the results that can occur when one tries to change the beneficiary designation but does not fully comply with the plan requirements. Results can vary depending on the judicial standard of review and depending on the type of document that attempted the change (will or trust provision, prenuptial, or divorce decree). This section is comprehensive and particularly impressive in its clear presentation of results that are hard to justify.

The article next argues that the connection between the beneficiary designation and the participant’s intent for the passage of property at death is tenuous. There are several reasons advanced: the passage of time, the lack of foresight, inattention, and bureaucratic obstacles, including opaque forms. The obvious problem is that in many plans the beneficiary designation remains the sole evidence of the participant’s intent, despite changes in the participant’s life.

The authors propose potential reforms, including statutory, recognizing that those reforms would have to be at the state and federal level. Another avenue for reform is the industry itself, which could begin by redesigning beneficiary forms. The authors helpfully nudge that process by including suggested language. Equally important, they encourage lawyer consultation in the process, a suggestion they readily acknowledge that “may seem quaint” in today’s online world. Yet, the authors remind us that the “oft-identified ‘ritual’ and ‘protective’ functions of formalities have not disappeared.”

It is almost impossible to read this wonderfully written article without a sense of disbelief at the complexity and injustice of the system. The disconnect between what the participant-decedent intended and what the system delivered can be striking. “Can be” is the operative phrase. I urge all of you to double check your beneficiary designations on all your retirement accounts. My guess is that some of you will be surprised at what is on file, and some of you will discover that you do not have any form on file. Accidental inheritance is not something that a T&E professor’s estate should stumble upon.

Cite as: Anne-Marie Rhodes, Transmitting Retirement Accounts: Getting It Right, JOTWELL (November 24, 2014) (reviewing Stewart E. Sterk & Melanie B. Leslie, Accidental Inheritance: Retirement Accounts and the Hidden Law of Succession, 89 N.Y.U.L. Rev. 165 (2014)), http://trustest.jotwell.com/transmitting-retirement-accounts-getting-it-right/.

Reenvisioning DRR as a Two-Stage Interpretive Tool for Determining the Testator’s Probable Intent

Richard F. Storrow, Dependent Relative Revocation: Presumption or Probability?, 48 Real Prop. Tr. & Est. L.J. 497 (2014), available at SSRN.

Professor Richard F. Storrow’s comprehensive article about the doctrine of dependent relative revocation (DRR) is one that I like lots because I learned so much reading it. I will try to summarize some of the highlights of the article—there are many more (including, for example, a discussion of student responses to one of his exam questions invoking DRR).

Professor Storrow notes that the body of jurisprudence around DRR “lacks coherence” (P. 499), and he provides, throughout the article, many different formulations of the doctrine from courts and commentators. He notes that DRR “holds that revocation [of a will] is legally invalid if a testator has made some sort of mistake in performing it—specifically a mistake either related to her motivation for revoking the will or related to what she desires that revocation to accomplish.” (P. 501.) He writes that some courts have viewed it as a rule of construction/interpretive device while other courts have viewed it as a rule of law/legal principle. (P. 499.) Ultimately, Professor Storrow proposes that DRR be situated “within the familiar framework of will interpretation” (P. 541) as an interpretive device that has two stages: the first stage “would ask whether the circumstances surrounding the revocation render the intent to revoke ambiguous,” and the second stage “would examine the probable intent of a reasonable testator to revoke or not to revoke in those circumstances” (P. 499).

In the first main part of the article, Professor Storrow provides the doctrinal underpinnings of DRR. He notes that, in most jurisdictions, common law limits corrections of wills to: “(1) misdescriptions of property or beneficiaries, (2) mistakes brought about through fraud, and (3) DRR.” (P. 500.) DRR has been “defined in various ways,” and Professor Storrow synthesizes certain common definitions of DRR to note that “DRR cases are of two types: one involving a new will or an intent to make one and another involving the testator’s misapprehension of the law or a fact material to the revocation.” (P. 501.) The Restatement acknowledges this “dual definition” and “recognizes that DRR applies when a testator revokes his or her will ‘in connection with an attempt to achieve a dispositive objective that fails’ and also when he or she does so ‘because of a false assumption of law’ or fact.” (PP. 501-502.) Professor Storrow notes, “Courts tend to apply the doctrine only if (1) an alternative testamentary scheme fails, or (2) the mistake is set forth in the writing that revoked the will and the mistake is beyond the testator’s knowledge.” (P. 502.)

Professor Storrow writes, “The law does not make perfectly clear whether DRR is a primary presumption, a presumption used to negate competing presumptions, or a canon of construction that establishes the probable intent behind a revocation.” (P. 503.) The policy behind DRR is “to help effectuate the testator’s intent.” (P. 503.) Professor Storrow then provides a comprehensive summary of the doctrines of revocation and revival, and (within his discussion of revocation) a summary of the following presumptions: (1) “a testator has revoked his will by physical act if the will was in his possession immediately before his death, but then after his death cannot be found,” (2) “when a testator has performed a revocatory act on a will, he did so with the intent to revoke it,” and (3) “one against intestacy.” (PP. 504-507.)

In the next main part of his article, Professor Storrow discusses the “substantive imprecision” of DRR, showing how it is “plagued with definitional variation” such as being defined as “a doctrine of presumed intention of what a testator would have done had he or she known that the new disposition that he or she was attempting to execute would be invalid” as well as “a doctrine of mistake” and “a doctrine in service of ‘the law’s preference for a testate disposition.’” (PP. 512, 513.) Professor Storrow then writes that “harmonizing the various iterations of the doctrine reveals that it can apply to three distinct types of revocation” (P. 513): (1) impliedly conditional revocation, (2) ineffective revocation, and (3) mistaken revocation. (PP. 513-526.) As to the view of DRR as mistaken revocation, Professor Storrow summarizes three sets of cases: (1) a cancellation of a will followed by a set of notes/a rough draft for future changes, (2) a partial revocation of a will by physical act and an attempted amendment to the will, and (3) a new will that validly revokes an earlier will but has dispositive provisions that are legally invalid. He discusses certain analytical problems with the three views of DRR, among them: (1) “impliedly conditional revocation” can be a “legal fiction that does not advance the analysis” (P. 516), (2) “ineffective revocation” can be “too broad . . . to accurately describe DRR” (P. 517), and (3) “mistaken revocation” can shift the focus away from what one court “rightly focused” on—the testator’s “lack of revocatory intent” (P. 521).

Concerned that “decisions applying DRR will continue to exhibit discontinuity and incoherence,” Professor Storrow suggests courts use a two-step process that “mirrors the familiar process of will interpretation.” (P. 530.) Courts should apply DRR when confronted with “ambiguous revocations, not ineffective, conditional, or mistaken ones.” (P. 530.) The first step is “to ascertain whether the facts and circumstances surrounding the revocation reveal that the intent behind the revocation is ambiguous” (which, he notes, “parallels the approach to disclosing latent ambiguities in wills”), and, at the second step, “the ambiguity must be resolved either with evidence of the testator’s actual intent or with canons of construction that impute intent based on what we conclude a reasonable testator would intend under the circumstances.” (P. 530.)

Professor Storrow then persuasively applies his proposed two-step analysis to certain cases he previously discussed. (PP. 532-535.) In general, he notes that, if a court uses DRR as a canon of construction, it need not discuss whether the revocation was mistaken or conditional and can instead focus on what the reasonable testator, under the circumstances presented, would intend. (P. 532.) Professor Storrow concludes that positioning his reenvisioned DRR “as a tool for determining a testator’s probable intent” (P. 541) provides three advantages: (1) promoting judicial economy, (2) harmonizing DRR with the law of will interpretation, and (3) serving as a reminder that DRR is “a tool for ascertaining probable intention.” (PP. 541-542.)

Cite as: Michael Yu, Reenvisioning DRR as a Two-Stage Interpretive Tool for Determining the Testator’s Probable Intent, JOTWELL (October 24, 2014) (reviewing Richard F. Storrow, Dependent Relative Revocation: Presumption or Probability?, 48 Real Prop. Tr. & Est. L.J. 497 (2014), available at SSRN), http://trustest.jotwell.com/reenvisioning-drr-as-a-two-stage-interpretive-tool-for-determining-the-testators-probable-intent/.