A Critical Research Agenda for Wills, Trusts, and Estates by Professors Bridget J. Crawford and Anthony C. Infanti is a ”must read” for wills, trusts, and estates practitioners and scholars. The authors highlight key contributions in the category they loosely refer as “critical trusts and estates scholarship” and challenge each of us to add our voices to these important issues. Some of the works that Crawford and Infanti highlight were written by trusts and estates professors, others were penned by professors who teach in other areas of the law, and some are even authored by non-lawyers.
Crawford and Infanti remind us that issues of race, gender, sexual orientation, socio-economic class, and disability should not be relegated to just a passing reference in scholarly works. As both scholars and practitioners, we need to examine how and why the law has developed the way that it has, and how historically disenfranchised groups have been affected. The variety of works highlighted by Crawford and Infanti reminds us that even in the “money” area of law—“tax and wills,” there are critical issues that need to be discussed inside and outside of the legal academy.
There is often talk about the relevance of legal scholarship and whether it is valued or useful to those outside of the legal profession. Further, with blogs, social media and other outlets for voicing critical viewpoints, the traditional law review article may need some new energy. Crawford and Infanti have provided us with a useful roadmap. It is now up to us to start researching and writing.
We cannot talk about American property law without discussing race. Historians and legal scholars have provided scholarship in this area. We know that European settlors claimed Native American land and African American slaves were treated as property rather than human beings. However, Crawford and Infanti remind us that “there is so much more to discover about the intersection of race with wills, trusts, and estates.” Some examples they suggest are as follows: how cultural factors influence planning for incapacity and death, how race affects attitudes about wealth and inheritance, and mapping the judiciary’s responses to charitable trusts. Also race, is far more complex than black and white and the authors point out that legal scholarship is almost non-existent in the area of Latino, Asian-American and Native American testation.
Gender issues also permeate the law of wills, trusts and estates. Crawford and Infanti reference articles where scholars have studied the differences between men’s wills and women’s wills, how gender informs estate planning and how probate courts have interpreted wills and treated men and women differently. The authors suggest additional topics worth exploring include “gender differences in attitudes about investment” and “the practical impact of legal reform on how men and women organize their finances.” They even suggest that the study of the legal profession should not be avoided. Has the field accommodated women? Does the lack of gender diversity impact reforms?
Although same sex marriage is now legal in all 50 states, there are still issues worthy of scholarly dialogue. As the traditional family of mom, dad and two children declines, perhaps default rules should be revised so that the “multiplicity of family forms” are addressed. Also worth exploring are the attitudes of attorneys who advise LGBT clients. Cultural awareness and sensitivity of practitioners and judges is important. Can such individuals be trained to be sensitive to the needs of nontraditional families?
Like the authors, I find it surprising that scholars have not written more frequently about class based issues in the area of wills, trusts and estates. The authors suggest future research that explores the obstacles faced by low and middle income testators as they create estate plans.
Finally, the authors look at the issue of disability and how it intersects with race, gender, class, gender identity and sexual orientation in the area of wills, trusts and estates.
After reading this article, I was inspired to take out a pen and begin to write. Lawyers are the change agents of our society. Although we would like to think of inheritance law as a private matter, Crawford and Infanti remind us that it is not. The law needs to be “evaluated for bias”. When the law safeguards those who have or continue to be disadvantaged, we are all in a better place.
I look forward to the critical scholarship that is written as a result of this article.