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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.

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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/.