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Flying Blind: Planning for Death when Holding Illegal Assets

Jonathan G. Blattmachr, Bridget J. Crawford & Mitchell M. Gans, Estate and Gift Tax Valuation of Cannabis Business Interests, 16 Trusts & Estates 22 (2022), available at SSRN.

Valuation, a process considered both a science and an art, often lies at the heart of estate and gift tax planning. In the course of settling large estates, the size and appropriateness of valuation discounts are common sources of disagreement between taxpayers and the IRS. To this already tricky terrain, in Estate and Gift Tax Valuation of Cannabis Business Interests, three estate tax experts, Jonathan G. Blattmachr, Bridget J. Crawford, and Mitchell M. Gans, add another complication: cannabis. That is, how should cannabis business interests be valued for gift and estate tax purposes? Since the ownership of such a business is illegal under federal law but legal in over 30 states, what are taxpayers to do? These questions are both timely and cry out for guidance from the IRS.

Tax law has a long history of considering the treatment of illegal income. If it were excluded from gross income, thieves and law breakers would have an unfair advantage over law-abiding taxpayers. Thus, inclusion seems necessary to avoid the absurdity of a tax code that favors illegality. As early as the 1920s, it appeared settled that gains from an illegal business could be taxed, but questions remained over embezzlement. See United States v. Sullivan, 274 U.S. 259 (1927). In the 1940s, the Supreme Court held that embezzled funds were not gross income because the embezzler had an obligation to repay, much like a debtor. See Commissioner v. Wilcox, 327 U.S. 404 (1946). But the Court reversed itself 15 years later in James v. United States, 366 U.S 213 (1961). Even with this certainty, questions have arisen at the margins in trying to distinguish the tax treatment of swindling gains from legitimate loans that sour into bad debt. See, e.g., Kreimer v. Commissioner, T.C. Memo 1983-672.

Their illegal aspect places cannabis businesses in a lose-lose position because a cannabis business owner must include cannabis gains in her taxable income, but, pursuant to Internal Revenue Code Section 280E, she cannot deduct her costs (except for certain costs of goods sold). Given these limitations and the status of cannabis as a controlled substance, Blattmachr, Crawford, and Gans are prescient in questioning the wisdom of treating income derived from cannabis sales unfavorably and, in turn, whether the quasi-legal status of cannabis business interests poses a fundamental challenge under traditional valuation principles. Value for gift and estate tax purposes is supposed to be determined with reference to a hypothetical sale between a willing buyer and seller. See Treasury Regulations Section 25.2512-1. Yet in the case of cannabis, such a sale would be illegal for federal purposes even if legal under state law. Does the disallowance of such a sale invalidate the willing buyer and seller principle for cannabis business interests?

This kind of question is hardly novel, and yet the IRS has never provided guidance to taxpayers. As discussed by Blattmachr, Crawford, and Gans, a similar issue arose a decade ago with respect to artwork by Robert Rauschenberg that combined a canvas with a taxidermied bald eagle, an endangered species that cannot be sold legally under federal law. The estate of the art dealer who owned the piece claimed that the value should be zero because it could not be sold, while the IRS claimed it was worth $65 million. The two eventually reached an agreement wherein the painting was donated to the Museum of Modern Art and no deduction was taken by the estate for the donation. This settlement still left the valuation question unsettled and the IRS has not clarified the issue since.

Thus, a larger, central problem that the authors identify is a lack of guidance from the IRS on issues where it has the ability to provide clarity. Whether this failure stems from well-documented IRS understaffing and underfunding or simply reflects institutional reluctance to wade into issues that the agency deems controversial, the IRS has left cannabis business owners guessing. Even if, as Blattmachr, Crawford, and Gans assume, the IRS would argue for full inclusion, questions remain on whether large valuation discounts should apply and whether any cannabis business liabilities can be deducted for estate tax purposes. The risks involved and the possibility of seizure by the federal government seem like reasonable factors to consider in valuing such interests, but it is an open question how the IRS would respond to such claimed discounts.

The cannabis industry, along with other illegal enterprises generating income and accumulating assets, are not going away. Nor are the related valuation questions. Blattmachr, Crawford, and Gans have uncovered a gap in the federal transfer tax system that could result in unfair taxation of one segment of business owners now operating within a quasi-legal regulatory environment. Given the booming cannabis industry, this is an essential article for legal scholars with an interest in tax policy, cannabis industry participants engaged in estate planning, and estate planning practitioners.

Cite as: Goldburn Maynard, Flying Blind: Planning for Death when Holding Illegal Assets, JOTWELL (August 15, 2022) (reviewing Jonathan G. Blattmachr, Bridget J. Crawford & Mitchell M. Gans, Estate and Gift Tax Valuation of Cannabis Business Interests, 16 Trusts & Estates 22 (2022), available at SSRN), https://trustest.jotwell.com/flying-blind-planning-for-death-when-holding-illegal-assets/.

Becoming

Carla Spivack, The Dilemma of the Transgender Heir, 33 Quinnipiac Prob. L. J. 147 (2020).

Editor’s Note: With profound sadness, we share the untimely passing of Dean Browne C. Lewis of the North Carolina Central University School of Law on June 2, 2022. We extend our heartfelt condolences to Dean Lewis’s family, colleagues, and students. Dean Lewis submitted this review shortly before her death, so it was edited and published posthumously.

The probate system is designed to ensure that the decedent’s wealth is transferred to family members. Common law dictates that the probate system gives preference to families. The probate system has not kept up with the ever evolving definition of family. In The Dilemma of the Transgender Heir, Professor Carla Spivack discusses yet another complication that may arise because of the law’s tendency to see the world through a binary lens that requires people to identify as male or female. The problem identified by the author is how the law should treat a bequest when a person transitions to a gender different from the one mentioned in an executed testamentary instrument. For example, the testator may leave a bequest to a son who has transitioned to a daughter at the testator’s death. Does the gift lapse because the person identified in the testamentary instrument as male is now female? The author looks to several legal doctrines to determine whether the law provides a way to save the gift for a son who has become a daughter.

If an ambiguity exists in a will, the court will admit extrinsic evidence to clarify the testator’s intent. Once that intent is determined, the court can distribute the decedent’s property accordingly. In the case of a transgender heir, the ambiguity would be latent because the confusion only occurs when the executor discovers that the heir has transitioned to another gender. Under the common law, a court would allow the executor to present extrinsic evidence showing that the testator would have wanted the person to receive the property regardless of the person’s gender identity. The author, however, rejects the ambiguity-rule approach to resolving the dilemma of the transgender heir because she argues that the will does not truly contain an ambiguity. This is not a typical case of ambiguity in which the testator refers to an heir by the wrong name. Here, the information contained in the will is correct, even though the person named in the will no longer exists in the original form.

The author next turns to the law of mistake to find a solution. Under the Uniform Probate Code, if a provision in the will is the product of a mistake of fact or law, the court may reform the terms of an unambiguous will to carry out the testator’s true intent. The author opines that, in this context, the mistake of fact impacting the will may be the testator’s inaccurate knowledge about the beneficiary’s gender at the time the will was executed. The mistake could also be the testator’s belief that the will did not have to be updated after the named recipient had transitioned to another gender. The author concludes that this doctrine may not be sufficient to save the gift if a contestant claims that the transgender beneficiary is not, in fact, the same person named in the will. If accepted by the court, the claim might render the problem beyond the scope of reformation.

The author then explores the pretermitted heir doctrine as an answer to the transgender heir problem. That doctrine exists to ensure that children who are born or adopted after a parent has executed a will are not disinherited. The doctrine creates a presumption that the testator’s failure to update the will to include after-born and/or after-adopted children was inadvertent. The author likens a transgender heir to an after-born child when a transgender person’s true identity does not come into existence until after the testator has executed the will. Thus, the gender transition can be treated like a birth. However, the author does not think that this doctrine should apply to cases of gender dysphoria because it was designed to deal with a single act—birth. Gender dysphoria can last a long time and it may or may not leader to gender transition. In some cases, the family may think of the transgender person as the same person, so the testator would have no reason to believe that such a person would not be able to inherit.

Another doctrine analyzed by the author is the doctrine of acts or events of independent significance. That doctrine allows courts to take into account the will’s reference to actions and events that have significance for the testator apart from their effect on the testator’s estate plan. At the time of will execution, the testator probably did not know that the beneficiary would change genders, but the author does not find this doctrine helpful because the will refers to a person who no longer exists. Arguably, however, if a will did refer to a beneficiary’s future gender transition, such a reference would constitute an act of independent significance that would allow a court to uphold the devise.

According to the author, current law does not provide a solution to the dilemma of the transgender heir because it is grounded in a binary paradigm when it comes to gender-specific gifts in a will. Consequently, if the gender mentioned in the will no longer exists, arguably, the heir could be treated as having predeceased the testator, and the gift would lapse. The law fails to solve a problem that the law, itself, created. Today, law and society imposes a binary selection of gender at birth, but a transgender person should not be penalized under inheritance law for a gender decision made by parents or medical personnel under compulsion by the legal system.

The author asserts that the solution is for inheritance law to “engage in resistance to the gender binary and bring the transgender heir within its fold.” Hence, the law should focus more on the relationship between the testator and the heir than on the gender of the heir. If the testator’s intent was to provide for the persons with whom the testator had relationships, it should not matter that some of those people may have transitioned from sons to daughters (or vice versa).  The author’s proposed solution is to add a provision to the Uniform Probate Code (UPC) that creates a rebuttal presumption that the testator intends the person to take even after gender reassignment. The presumption could only be rebutted by clear and convincing evidence to the contrary. The proposed provision would align with the UPC’s goal of protecting the testator’s surviving family members in cases of unintentional omission.

The author admits that the case of the transgender heir has not yet been litigated. However, given the increasing number of people who identify as transgender, the test case will probably arise in the near future. After laying out the problem and explaining its importance, the author does an admirable job of explaining the reasons why the current tools in the legal tool box are inadequate. She relies on other scholars and literature to explain the reasons why gender itself should not trigger disinheritance in this context. The foundation of probate law is to ensure that property is distributed in a way that carries out the decedent’s intent, and any solution that focuses solely on gender status may make that task difficult. Therefore, the emphasis should be on the relationships and family connections that a testator built during life. The debate the author undertakes is not a new one, but it shows how, yet again, a marginalized population of heirs might be unfairly treated under the current legal regime. Previously, for example, non-marital children and posthumously born children were disadvantaged by the intestacy system until the law was changed to remove barriers that prevented them from inheriting. In the case of the transgender heir, the law should be proactive and resolve the issue before a rightful beneficiary is denied a bequest because that person has transitioned to another gender.

 

Cite as: Browne Lewis, Becoming, JOTWELL (July 15, 2022) (reviewing Carla Spivack, The Dilemma of the Transgender Heir, 33 Quinnipiac Prob. L. J. 147 (2020)), https://trustest.jotwell.com/becoming/.

The Double-Edged Sword of Hunting Heirs

David Horton & Reid Kress Weisbord, Heir Hunting, 169 U. Pa. L. Rev. 383 (2021).

Heir hunting. This slightly ominous term refers to the practice of sophisticated individuals and companies scouring probate filings, conducting genealogical research, and contracting with heirs of intestate decedents to provide help with probate proceedings in exchange for a cut of their inheritance. The practice originated in 1850s England before crossing over to the United States, and despite the prevalence of heir hunting, its legal treatment is murky at best. Academic scholars have failed to give it the attention its longevity would seem to warrant. Professors David Horton and Reid Kress Weisbord rectify this neglect and seek to understand the reality of heir hunting through an empirical study of San Francisco County probate filings. The professors’ findings guide their critique of heir hunting, and they propose legislation that provides a time and place for the practice in the present day and mitigates the serious harms it can cause.

The legal history of heir hunting is complex. Courts initially invalidated heir hunting contracts under the doctrine of champerty, which prohibits a third party from pursuing another’s legal claim. However, courts did not always employ the same logic when they struck down these contracts. Some courts voided the contracts because they encouraged litigation, and others pointed to heir hunters’ meddling with the duties of actual estate administrators. To make sense of these discrepancies, Professors Horton and Weisbord distinguish the differences in court opinions with two ideas: the “litigiousness” theory of champerty and the “interference” theory of champerty.

Although some courts remain steadfast in their recognition of the doctrine of champerty, the doctrine has fallen from favor over time. Additionally, heir hunters have become smarter in navigating the law; questions about ethics, unclaimed property, and litigation funding have complicated the legal landscape; and courts have moved from almost uniform invalidation to more frequently upholding these contracts because of the benefits they may confer.

The result is that no clear legal treatment of heir hunting exists to guide courts, legal professionals, and even lay individuals. Inconsistency in the courts has not inspired widespread legislative reform; only two states—California and New York—have statutes addressing heir hunting. Heir hunters are mostly free to target unknowing heirs however they choose.

To analyze these issues, the professors worked with a data set of probate filings over two years in San Francisco County (a county that allows free access to court filings). Although the professors found that heir hunting occurs in a relatively low percentage of total probate matters, heir hunters generate high numbers of assignment contracts when they do involve themselves in a case. Those contracted-for assignments average at 20% of an heir’s inheritance. Heir hunters have an impressive geographic spread, reaching states across the United States and even other countries. Heir hunters also have access to extensive genetic information, advanced knowledge of descent and distribution laws, networks of attorneys, and sufficient understanding of probate processes. In other words, heir hunters employ a business model that on one hand might be seen as pervasive and on the other sufficiently thorough to be particularly helpful.

Professors Horton and Weisbord make two useful critiques of heir hunting based on statistical analysis of these findings. First, the blanket approach of invalidating heir hunting contracts under champerty is imperfect because, while it mitigates the consumer protection concerns around the practice, it also precludes any of the beneficial results heir hunting produces. Second, heir hunting creates serious ethical issues with respect to conflicts of interest and dual representation.

Some commentators consider heir hunting to be beneficial because these people-finding experts resolve complex family trees and prevent intestacy matters from languishing in probate court limbo. Other commentators point out its downsides: heir hunting can be exploitative of lay individuals and give rise to litigation and premature intervention in court cases that concern heir hunters only as a business opportunity. The study’s findings confirm that this tension exists and support the professor’s “litigiousness” theory of champerty. Heir hunters do help solve genealogical mysteries and provide other benefits, such as detecting petitions that omit heirs. But still over 45% of surveyed estates involving heir hunters “degenerated into litigation” with an increased association between heir hunters and probate conflict. The findings also confirmed that heir hunters intervene extremely early in the probate process and often before a probate court has even appointed an estate administrator to locate heirs.

Also noteworthy is the scope of ethical issues heir hunting creates. Although heir hunters have become more sophisticated over time, the professors emphasize that they still maintain significant control over client-heirs’ legal representation. Heir hunters effectively persuade heirs to accept their contract offer and resources, such as free “independent” attorneys who have ongoing relationships with the heir hunters, raising the ethical questions of third-party solicitation and dual representation.

Ultimately, heir hunting cannot be evaluated and addressed without considering both the benefits it provides and the harms it can cause. To resolve these concerns in a way that preserves the good and mitigates the bad, Professors Horton and Weisbord propose legislative changes to regulate the heir hunting industry that include two components: capping heir hunting fees and barring heir hunting for a defined period of time until an estate administrator has the opportunity to find a decedent’s heirs. The professors argue that these are simple and effective ways to prevent overcharging of heirs, reduce litigation and ethical concerns, and limit heir hunting practices to those that truly benefit heirs.

In a world in which so many people continue to die intestate, Professors Horton and Weisbord provide nuanced recommendations for heir hunting to continue in the present day. I commend the professors for dedicating much-needed attention to a fascinating and controversial issue that has flown under the radar for so long. This article was enlightening and addresses a subject that every estate planning and probate professional ought to keep in mind.1

Editor’s Note: Reviewers choose what to review without input from Section Editors. Jotwell Trusts & Estates Law Section Editor Reid Weisbord had no role in the editing of this article.

  1. Special thanks for the outstanding assistance of Ana Mitchell Córdova, J.D. Candidate May 2022, Texas Tech University School of Law, in preparing this review.
Cite as: Gerry W. Beyer, The Double-Edged Sword of Hunting Heirs, JOTWELL (June 14, 2022) (reviewing David Horton & Reid Kress Weisbord, Heir Hunting, 169 U. Pa. L. Rev. 383 (2021)), https://trustest.jotwell.com/the-double-edged-sword-of-hunting-heirs/.

New Developments in Fifteenth-Century Ottoman Trust Law and the Fate of the Hagia Sophia

The Hagia Sophia Case, Recent Case: Daniștay, Onuncu Daire [Council of State, Tenth Chamber] Matter No. 2016/16015, Decision No. 2020/2595, July 2, 2020, 134 Harv. L. Rev. 1278 (2021).

English legal historian Frederic William Maitland declared in the late 19th century, “[i]f we were asked what is the greatest and most distinctive achievement performed by Englishmen in the field of jurisprudence I cannot think [of] any better answer . . . than . . . the development from century to century of the trust idea.”1 Maitland, indeed, had good reason to applaud the innovation of trust law. But his claim of English exceptionalism may have been a bit immodest.

As beautifully recounted in an unattributed student case note,2 English legal tradition is not alone in recognizing beneficial ownership, the concept that underlies the enduring ingenuity of trust law. The Hagia Sophia Case: Turkey’s Highest Administrative Court Annuls Ataturk’s 1934 Decision Converting the Hagia Sophia into Museum, reveals that the validity of a fifteenth-century Islamic charitable trust emerged in 2020 as a pivotal question on appeal to Turkey’s highest administrative court. In that case, the petitioner sought to invalidate the conversion of one of Istanbul’s famous landmarks, the Hagia Sophia, from an active mosque into a public museum.

Built by the Romans in 537, Turkey’s renowned marvel of Byzantine architecture existed for nearly a millennium as the flagship cathedral of eastern Christianity. But in the aftermath of Emperor Constantine XI’s military defeat in 1453 by the Ottoman Turks, Sultan Mehmed II converted the Hagia Sophia into a mosque and endowed the property in perpetuity as an Islamic charitable trust. Later adorned by four minarets, the Hagia Sophia was administered according to the terms of Mehmed’s trust for nearly five hundred years until 1934, when Kemal Atatürk, the first president of the newly secular Republic of Turkey, converted the ancient landmark into a public museum. The controversial move surprised both Turks and foreigners alike,3 but it did not immediately transform the landmark into the blockbuster tourist attraction that it later became. By one account, published by the Guardian in 1935, “the most famous Turkish mosque, for all time the greatest triumph of large-scale Byzantine building, [. . .] has tranquilly slipped into the state of a rather empty museum.”4 Attendance improved over time and, by 2019, the Hagia Sophia had become Turkey’s most visited museum.5

The Harvard Law Review case note reveals that, while many commentators attribute the recent decision restoring the Hagia Sophia’s sacred status to an executive fiat by President Recep Erdogan, a Turkish court was actually the mandate’s official source. While it is probably impossible to disentangle this litigation from the influence of domestic politics, analysis of the actual case argued before the Turkish courts offers a fascinating glimpse into the mechanics of medieval Islamic trust law, which, to my surprise, closely resembles doctrines of modern American trust law in certain respects.

In 2016, the Turkish Association for the Protection of Historical Monuments and the Environment filed a petition to reopen the Hagia Sophia as a mosque for Muslim worship. The petition slowly wound its way through the trial and appellate courts until the matter was finally appealed to the Council of State. There, the high court concluded that the 1926 Turkish Civil Code, which governed at the time of the 1934 conversion, preserved an Ottoman doctrine of Islamic trust law which prohibited modification of a charitable trust unless the purpose becomes useless or violates public policy. The Council of State held that, because neither exception applied, Turkish courts have an obligation to carry out the settlor’s intent, a duty that compelled the annulment of Atatürk’s 1934 conversion because that act violated the terms of Mehmed’s charitable trust.

The case note agrees that the Council of State reached the legally correct decision, but the student author offers a fascinating three-part critique of the Council’s application of Ottoman law.

First, the note argues that the court could have more fully addressed the legitimacy of Mehmed’s power to terminate existing rights of Byzantine citizens to use the cathedral for Christian worship. Under the branch of Islamic law followed by the Ottomans, a ruler who prevailed in conquest was required to respect existing property rights, especially for religious sites, but only if the defeated party surrendered. In a conquest by force, like Mehmed’s invasion of Constantinople, the prevailing conqueror could void existing property rights entirely. Conquest by force, therefore, gave Mehmed authority as Sultan to void the rights of Byzantine worshippers to maintain the Hagia Sophia as a Christian cathedral.

Second, the note contends that the court should have analyzed the way in which Mehmed exercised his authority over the Hagia Sophia. Under Islamic law, conquest by force entitled the ruling party to void existing property rights (as noted), but not for the ruler to seize proprietary ownership for himself. Up to one fifth of the conquered land could be endowed for the benefit of the general public while the rest had to be allocated among the soldiers. Thus, Mehmed never owned the Hagia Sophia outright in his individual capacity, as some commentators and historians have claimed, but Mehmed did have a legal right to endow the Hagia Sophia in trust as a mosque for the benefit of the worshipping public. The court could have strengthened its argument by mentioning this point.

Third, the note confronts the court’s failure to explain why Atatürk, as sovereign leader of the prevailing conqueror, lacked authority to modify the terms of Mehmed’s trust. Under one theory of Islamic law, rulers were permitted to modify charitable trusts if the corpus contained income-producing property and the modification implicated a governmental interest. Mosques, however, are not income-producing, so, under that theory, Mehmed’s restriction would be binding against successive rulers. According to another theory, a ruler could add or remove provisions but could not completely repurpose a charitable trust. At least one precedent seems to support the claim that altering the holy status of a mosque would rise to the level of impermissible repurposing.

For me, a reader more familiar with the modern rules of American trust law than sacred cannons from centuries past, what resonated most profoundly about this case was the unmistakable similarity between medieval Ottoman trust law and the modern rules of American trust law that T&E professors teach at law schools today throughout the United States. Indeed, provisions of the Uniform Trust Code, first promulgated in 2000 and since enacted in 35 states, are virtually identical to the Ottoman trust law doctrines that governed in the time of Sultan Mehmed: a valid trust purpose is one that is lawful and not contrary to public policy (UTC §404), and a charitable trust cannot be completely repurposed contrary to the settlor’s intent unless “a particular charitable purpose becomes unlawful, impracticable, impossible to achieve, or wasteful” (UTC §413), to cite two examples.

If Frederic William Maitland could revive himself from the dead, he would surely read this case note about the Hagia Sophia with as much interest as I did. Maitland would be gratified by the flourishing field of modern trust law, which has proven to be one of the most useful and enduring concepts of property law, but, perhaps, he might concede that the idea of beneficial ownership should not be attributed exclusively to English jurisprudence.

  1. F. Maitland, Selected Essays 129 (1936).
  2. According to internal policy, the Harvard Law Review does not attribute author names to unsigned comments.
  3. See Yildiray Ogur, Hagia Sophia: Ataturk and the rich Americans who changed icon’s fate, Middle East Eye (July 23, 2020).
  4. Saint Sophia: conversion into a museum, The Guardian (June 12, 1935).
  5. See The Governorship of Istanbul, The Most Visited Museums of Turkey: Hagia Sophia Museum (Dec. 3, 2020).
Cite as: Reid Weisbord, New Developments in Fifteenth-Century Ottoman Trust Law and the Fate of the Hagia Sophia, JOTWELL (May 16, 2022) (reviewing The Hagia Sophia Case, Recent Case: Daniștay, Onuncu Daire [Council of State, Tenth Chamber] Matter No. 2016/16015, Decision No. 2020/2595, July 2, 2020, 134 Harv. L. Rev. 1278 (2021)), https://trustest.jotwell.com/new-developments-in-fifteenth-century-ottoman-trust-law-and-the-fate-of-the-hagia-sophia/.

‘Till Death Do We Vote: The Thorny Issue of Votes Cast By People Who Die Before Election Day

David Horton, The Dead Voter Rule, 73 Ala. L. Rev. 341 (2021).

It is vastly better to address issues related to voting outside the context of a hotly contested election. Professor David Horton has done an admirable job of doing this with his article that addresses what he accurately refers to as a “comparatively niche issue of predeceasing absentee voters.” (P. 347.) Specifically, he takes on the nuanced and thorny issue of whether to count votes that were cast by a voter who subsequently dies before election day.

In his thought-provoking article, The Dead Voter Rule, Professor Horton notes that in the 2020 national election, more than 100 million voters used absentee ballots and early voting procedures before Election Day. This was out of the approximately 160 million total votes cast. A small number of early voters, however, died before Election Day. When this happens, many states utilize what Professor Horton refers to as the dead voter rule (the “DVR”) to invalidate those votes. While the numbers are small, Professor Horton accurately notes that those votes can alter the outcome of a close election. He argues persuasively that the DVR should be abolished and that we should not wait until we have a really close election to enact reforms.

Part I of the article surveys the rules surrounding early absentee voting around the country. It notes that many states apply the DVR to discard the ballots of people who cast ballots and die before Election Day. Professor Horton explains the history of absentee voting in the United States, noting that it initially emerged in some states to allow soldiers who were away during the Civil War to vote. It expanded after World War II to allow anybody who needed to be away, such as due to illness or traveling for business, to vote. By the late 1970s and 1980s, it expanded again in certain states to allow “no excuses absentee voting.” Similarly, some states began adopting early in-person voting as well. Collectively, these initiatives indicate a growing trend toward allowing “convenience voting.” This trend inevitably raises the question of whether states should honor the votes of people who vote early and pass away before the polls open on “Election Day.”

The article then explores the history of the DVR and notes that the first mention of the DVR seems to be in New Hampshire’s 1921 absentee voting law, which simply held that ballots cast by people who subsequently die before election day would not be counted if the officials charged with counting votes became aware of a voter’s death. Other states subsequently expanded that principle, saying that votes cast by people who die before election day would not be counted. By the 1990s, the DVR was the majority approach throughout the United States.

The rationale given for the DVR is simply that a person must be alive on Election Day to be qualified to vote. Professor Horton refers to this rationale as “rank formalism.” If a person votes and then dies before Election Day, the simplistic argument goes, that person’s vote will not count because they were not qualified to vote on Election Day. But had the person died on Election Day, his or her vote would count even though there is no strong substantive rationale that would justify the differential treatment. Professor Horton notes that, while the DVR is not applied with a great deal of frequency, it is a “visible part of the electoral landscape.” Most recently, in the last election, states rejected 6,599 ballots under the DVR, and that doesn’t count the 20 percent of localities that do not report this data.

Part II of the article evaluates two theories: (1) that the DVR is unconstitutional and (2) that the DVR is normatively flawed. As to constitutionality, it appears possible that intermediate scrutiny might apply to some applications of the DVR because voting is a fundamental right. However, because courts have uniformly held that there is no “right” to vote absentee, a court could simply note that, because it is impossible for a dead person to actually vote on Election Day, candidates are not entitled to count absentee ballots submitted by predeceased voters in their favor.

Professor Horton also highlights a major issue with litigating such a constitutional challenge: standing. Who is able to challenge the DVR? The three potential plaintiffs are (1) estates of decedents who voted and then died, (2) candidates who, in order to win an election, needed the votes of predeceased voters, or (3) living voters who are terminally ill and likely to die before Election Day. As to (1), the estate lacks standing because constitutional rights die with the decedent, and the decedent is necessarily dead at the time of the alleged constitutional violation. As to (2), while the candidate might be able to demonstrate third-party standing, it is still necessary to demonstrate that the voter suffered a constitutional deprivation, which is not possible after death. Finally, as to (3), it impossible to prove that the voter will definitely die before election day, making proof of standing impossible. Professor Horton ultimately concludes that a lack of standing should preclude a successful constitutional challenge to the DVR.

Although the DVR almost certainly would survive a constitutional challenge, Professor Horton argues that the DVR is normatively flawed and should be repealed anyway. Specifically, he argues that there is no persuasive justification for the DVR. His primary point is that the rationale for the DVR, that absentee ballots are not effective until Election Day, is a mere technicality. He argues that the rationale for not letting people vote after dying, either through a representative or through instructions in a will, does not apply to people who have actually cast a vote before dying. It would be inappropriate to allow people who die before attempting to cast a ballot to vote because they can no longer make informed decisions regarding issues presented in the election. Somebody who actually casts a ballot before dying, however, can make an informed decision, like any other early voter. Stated simply, the factors that generally disqualify dead people from voting under the DVR do not apply to living absentee voters who actually vote but happen to die before Election Day.

Another argument that is often made in support of the DVR is that it is administratively difficult to deal with the issue of predeceased voters. Professor Horton correctly notes that the opposite is true. It is administratively less convenient to figure out which voters may have died before Election Day so that their votes can be eliminated. In short, the DVR itself is burdensome to administer, and we would be better off without it.

The final argument often asserted in support of the DVR is that it reduces the risk of fraud. Professor Horton dismisses this allegation by noting that there is astoundingly little actual evidence of voter fraud of any kind in elections in the United States. With respect to absentee ballots, he notes that the conservative Heritage Foundation has identified only 204 cases of fraud involving absentee ballots out of 250 million votes cast in 2020. In short, there simply is no significant evidence of fraud that would support a rule, such as the DVR, that erases legitimately cast votes.

Professor Horton has written a thought-provoking article. While this may be a “niche issue” that will affect relatively few voters, I am persuaded by his arguments. The arguments in support of abolishing the DVR simply outweigh the arguments in support of keeping it in place.

Cite as: Sergio Pareja, ‘Till Death Do We Vote: The Thorny Issue of Votes Cast By People Who Die Before Election Day, JOTWELL (April 11, 2022) (reviewing David Horton, The Dead Voter Rule, 73 Ala. L. Rev. 341 (2021)), https://trustest.jotwell.com/till-death-do-we-vote-the-thorny-issue-of-votes-cast-by-people-who-die-before-election-day/.

Unearthing Posthumous Subordination

Fred O. Smith Jr., On Time, (In)equality, and Death, 120 Mich. L. Rev. 195 (2021).

Fred O. Smith Jr.’s compelling new article, On Time, (In)equality, and Death, is a remarkable inquiry that delves into the posthumous rights of individuals and the risks of subordination that persist even beyond death. Smith identifies “four long-standing ‘rights’ after death” – bodily integrity, dignified interment, protection against undignified disturbance once interred, and control over the disposition of one’s property – and subsequently analyzes the potential that inheres in each category for posthumous subordination. These risks overlap with and undergird each other, discrimination compounding dispossession, but Smith identifies four main mechanisms and details how reliance on these mechanisms increases the likelihood of posthumous subordination.

The first site of subordination is linguistic and discursive. As Smith explains, statutory language used to govern burial practices and acts of desecration rely on terms like “outrage,” “offensiveness,” and “reasonableness.” The problem is that these terms are culturally contingent and “imbued with cultural values and norms.” Bodies have been prepared in different ways, burial has involved many different processes, and mourning practices have ranged from public and vocal, to private and silent. Cultural norms, pinpointed in time, have dictated these practices and the variety of approaches taken to death and care for the dead reminds us that the “outrage” accounted for in statutes is co-extensive with whatever it is that ruling bodies and classes find outrageous at any given moment. It would be interesting to have some examples of what Smith has in mind here as evidence of the cultural contingency of burial practices.

Another mechanism for enabling posthumous subordination is inheritance law’s fixation on the idea of “decedent intent.” This concept, which runs through the domain of death and wealth, is a lodestar for courts and lawmakers. In a leading inheritance case about the Indian Land Consolidation Act and the fractionation of indigenous land, Hodel v. Irving, the Court commented that: “In one form or another, the right to pass on property—to one’s family in particular—has been part of the Anglo-American legal system since feudal times.”1 This statement – filled with tragic irony in its imposition of feudal histories on indigenous testation – belies the fact that freedom of testation (and any concomitant care for decedent intent) was historically the province of white men. The trope of decedent intent, meant to memorialize and actualize posthumous agency can also, then, be used to privilege the wishes of those who were authorized to express them in legal format and disregard the wishes of those who never had the chance to set forth their intentions in a will or other testamentary document. Smith does not dwell on this point but it is worth future explication as contesting and complexifying the concept of freedom of testation gives us a better understanding of the field of wealth transfer, more generally.

Decedent intent also matters, Smith tells us, regarding who will carry out of such intent. Which brings us to the third way in which subordination gets reproduced – through “combined legal and cultural reliance on family members as trustees and stewards of a decedent’s interests and integrity.” Kinship, Smith explains, plays “a paramount role” in the protection of family corpses (just think of Antigone), creates default inheritance rights, and determines supervision of a decedent’s privacy rights. However, families whose legality was historically denied and whose relational ties were violently fractured by law and by custom were and are at a distinct disadvantage, subordinate to those families with legally recognized genealogies and family trees. Smith describes this phenomenon – the “ways that violent, identity-based subordination [have] disrupted some individuals’ relationships with their descendants” – as “lineal alienation.” Because family members are living agents for their dead, Smith points out that lineal alienation not only disturbs inheritance right but also disrupts kinship cycles of care and control that begin at death and ensure proper memorializing.

The last way in which death practices have the potential to recreate oppressive relationships, thereby instantiating posthumous subordination, is through collective memory. Collective memory translates concerns about proper care and respect for the dead from the private, family realm to a squarely public one. Here, Smith taps into current debates about monuments, grave sites, and the built landscape of death and commemoration. Smith claims that “custodians’ treatment of the bodies and images of subjugated, stigmatized deceased persons can render them complicit in additional harm to those victims.” That is to say, those acting in current controversies – such as the treatment of newly discovered slave cemeteries or the display of slave skulls in museum – can posthumously harm communities and populations by “reinforcing their marginal status in our nation’s memory.”

Both historically and currently, America has created and compounded relationships of oppression by “subordinating the memory of the dead on the basis of race, ethnicity, and disability.” Think segregated cemeteries or the mass, unmarked graves of those who died of AIDS-related causes in the 1980s. This posthumous subordination has served to build a selective “memory” of what constitutes our nation and its people and represents the counterpart – silent, unsung, concealed, and subjugated – to memorials and monuments celebrating confederate leaders, eugenicists, and sexual predators. Smith leaves the details of rebuilding our imagined nation to future conversations but states that “[r]efusing to detoxify our collective memory is not only a disservice to ourselves but an encouragement to continued assaults on victims of mass subordination.”

Smith’s article is, then, a launching point for thinking about not only how private processes surrounding death and mourning get coded and codified in our current landscape. This article also prompts consideration about where to begin collective detoxification and how to make symbolic as well as economic reparations. It is an article for the times and an article that can help us better conceptualize and regulate death and the practices around death for the future as well.

  1. Hodel v. Irving, 481 U.S. 704 (1987).
Cite as: Allison Anna Tait, Unearthing Posthumous Subordination, JOTWELL (March 2, 2022) (reviewing Fred O. Smith Jr., On Time, (In)equality, and Death, 120 Mich. L. Rev. 195 (2021)), https://trustest.jotwell.com/unearthing-posthumous-subordination/.

Most People, Most of the Time

Mary Louise Fellows & E. Gary Spitko, How Should Non-Probate Transfers Matter in Intestacy?, 53 U.C. Davis L. Rev. 2207 (2020).

Each moment of every day, many people are living without a formal estate plan and dying without a valid will. Reasons include ignorance, inertia, and choice. Some might not know that they have the ability to transfer property at death; others don’t want to think about the matter or do not care. A slight few might consciously figure that solving who gets what is best left to survivors to sort out, thereby externalizing the effects of their indecision. And there always remains the unlikely possibility that a person will both know, and consciously select, the succession outcomes that intestacy would force. In the latter two instances, those who “choose not to decide [] still have made a choice.” Nevertheless, as Professors Mary Louise Fellows and E. Gary Spitko intimate in How Should Non-Probate Transfers Matter in Intestacy?, individuals who intentionally die without an estate plan are probably rare.

Dying without an enforceable estate plan poses problems because clarity of ownership – knowing who owns what and precisely when – matters. Such deaths are neither new nor novel, with intestacy rules offering a solution. The property will pass to the decedent’s heirs, i.e. those whom state statutes identify as takers in default of a will. Otherwise stated: the property will pass to whomever some set of long-ago legislators (picture that demographic) determined as the most likely (or, as shaded by inherent biases, “appropriate”?) candidates for the decedent’s largesse. While intestacy may provide an efficient solution for distributing the property of decedents who died without manifesting a preference, Professors Fellows and Spitko note the inadequacy of that solution and posit a more intent-effectuating response.

Most notable to critics of current intestacy statutes are the mismatches between the universality of death and the personality of a particular decedent—between objective rule and subjective reality, which describes every decedent’s “intent” even if we can no longer clearly discern it. As Professors Fellows and Spitko note, that asymmetry generates attempts to fit informal or under-recognized relationships into recognized statutory boxes or to determine what sorts of factors can remove a privileged “heir” status once obtained. That problem is exacerbated by time. Just as wills become more ambiguous the more stale they become, intestacy statutes often reflect suppositions about “rightful takers” that don’t square well with modern family dynamics. What would (“should?”) most decedents have wanted, most of the time? The most efficient answer is not necessarily the best. And as both over-and under-inclusive, the statutes often fail to get it right.

At some level, the problems that intestacy statutes solve by default seems dismissible because wills are cheap and easy to create. Would-be intestates accept, or again perhaps even choose, the consequences of their (in)action, with the law getting as close as possible to likely intent anyway and without costly, fact-intensive litigation to unearth it. Professors Fellows and Spitko would disagree in favor of a more direct engagement with the decedent’s intent. To them, while perhaps administratively costlier than applying objective rules of heirship, an intestate decedent’s probable intent can be discerned from an individualized review of the decedent’s own nonprobate transfers. Fellows and Spitko would surely impose new costs on the process of estate administration, but their elegant solution would be superior to intestacy in most cases. Lifetime donors – even those of will substitutes where the burn of transfer is delayed – are presumably more immediately, acutely aware that some sort of ownership transfer has taken place. Those choices offer valuable evidence of decedent intent, perhaps even more so than wills drafted long ago, and probably much more so than the text of a fusty statute.

These are a few of the direct arguments and outcomes to admire in the authors’ work. But part of what makes the piece so powerful has as much to do with other things. First, their piece is thorough and careful, and for those less familiar with empirical research, offers a blueprint for how one might effectively blend qualitative and quantitative research with existing legislation and legal theory. Second, it holds a dialogic quality that deepens understanding. The authors invite the reader into a conversation with and between them and the material, their thesis, the estate planners they interviewed and the individuals they polled, the ways in which their initial theses were refined and re-presented. At least for me, they encouraged me to have a conversation with myself. I had first encountered their initial research a decade ago, and found the ideas then presented compelling. The ability to revisit that material anew and updated ten years later, and to see how different stages of the past research and results both altered initial project scope and contributed to present design, generated a satisfying feeling: that even were I not to have agreed with the outcomes reached, I had in a sense lived with, really knew, and understood that which informed them.

Although the authors’ scholarship is always valuable, the range of benefits found in this update was an unexpected gift.

Cite as: Katheleen Guzman, Most People, Most of the Time, JOTWELL (January 31, 2022) (reviewing Mary Louise Fellows & E. Gary Spitko, How Should Non-Probate Transfers Matter in Intestacy?, 53 U.C. Davis L. Rev. 2207 (2020)), https://trustest.jotwell.com/most-people-most-of-the-time/.

Wealth, Privilege, Power, And Opportunity

Allison Anna Tait, Inheriting Privilege, 106 Minn. L. Rev. __ (forthcoming 2022), available at SSRN.

Over one’s lifetime, advantage processes have a cumulative and potentially significant impact on inequality.  The notion of cumulative advantage, or behavior processes whereby wealth continues to fall into the hands of individuals based upon how much they have already accumulated, is a concept to which many labels are applied: preferential attachment; “the rich get richer”; the Matthew effect. Most law school courses on trusts and estates consider (to some extent) the privilege, power, and opportunity that flows from economic wealth. Conversely, inherited social and cultural capital create advantage processes that are arguably no less significant, driving behaviors that produce tacit economic benefits—the parent who pays for extra tutoring so that a child may outperform peers on an entrance exam; the professional able to develop an instant sense of rapport and connection with other successful professionals; the job candidate who comports herself with high cultural knowledge (au courant but appropriate attire, elegant table manners, knowledge of fine arts, broad functional vocabulary). Although the intergenerational impact of inherited cultural capital is fascinating and relevant as an advantage process, the implications have been largely overlooked by legal scholars contemplating inheritance frameworks. Inheriting Privilege by Allison Anna Tait considers the family trust as a mechanism for intergenerational transfer of privileged social standing and cultural hierarchies.

The article encourages us to think more broadly about patrimonies: family resources usually considered by legal scholars in the narrow context of financial assets. Social and cultural capital is manifest within the patrimonies of the wealthy, with season tickets to the polo club, country club memberships, fee-paid legacy status within initiation-based social clubs, or box seats to performing arts events. Cultural objects, heirloom possessions, and shared rituals may also be part of the patrimony. Notably, treasured collectibles may sometimes be a part of both the economic patrimony and the family’s cultural capital. Trust beneficiaries may have access to priceless antiquities without ever investing capital to purchase them (“only middle-class people buy furniture (because upper-class people inherit it)”). Access to high-value antiquities, artwork, and social memberships—or any of the conspicuous markers of elite white culture—is a mantle of privilege and one inherits unearned opportunities when cloaked with this mantle. Professor Tait’s argument that young people are paid more and promoted far earlier when they possess a wealth of social capital is thoroughly supported.

The family trust may facilitate control over a patrimony for centuries. The structural flexibility of a trust arguably allows it to operate as both sword and shield when it comes to protecting the capital within the patrimony. The power of a trustee to treat the trust principal as sacred, allowing distributions only from income generated by the principal, allows wealth to be preserved for as long as the state’s perpetuities will permit. Settlor-imposed restrictions that micromanage spending may be so explicit as to place the trustee in the position of substitute parent to the beneficiaries. And with a properly drafted trust, the assets within the trust may not be reached by generations of beneficiaries’ creditors. Professor Tait takes examination of family trusts a step further and considers the specific ways in which structural flexibility allows social and cultural capital to be protected and preserved:  restrictions may be placed upon the trustee to preserve family assets and preclude their sale or disposition (e.g., vacation homes, farm properties, closely-held businesses, art collections, family heirlooms); a statement of values may be incorporated in the preamble of the trust, as a way of setting forth some sense of shared identity among family members; and, wielding both carrots and sticks, incentive provisions may be incorporated into a trust to encourage socially productive behavior, specific educational outcomes, or mandate philanthropic involvement.

Professor Tait notes that seven of the twenty wealthiest families on the Forbes Richest 400 list have inherited intergenerational wealth that was “strategically transferred . . . from one generation to the next through a complicated system of trusts, charitable foundations, and corporate entities.” She observes that to the extent trusts play an important role in preserving and concentrating wealth for an elite segment of society, conversations about structural inequity must necessarily involve trust law. This well-researched journey through the trust as a “unique catalyst of inequality” shifts gears and then reimagines the family trust as a tool for equality. Professor Tait contemplates the use of “citizen trusts” to address the needs of historically marginalized or vulnerable persons or communities. By way of a model, the article considers the First Nation Settlement Trusts in Canada, which are currently used to manage, preserve, and protect settlement funds received by displaced aboriginal communities, and the Alaska Permanent Fund, which has grown from $900 million in 1980 to $60 billion in 2017 and is used to support the community-at-large in Alaska.

This type of scholarship serves as a departure point for important conversations that need to happen in the classroom about the benefits and disadvantages arising from the plasticity of the family trust, and the ability of the trust to preserve intergenerational wealth and privilege. Professor Tait has also made an extraordinarily important contribution in helping to frame a pivot: harnessing the advantages of the trust enjoyed by the wealthy to advance community-supported causes. An article is a noteworthy contribution when it leaves us with new thoughts and ideas of our own, and when we are inspired to incorporate those ideas into our classes.

Cite as: Victoria J. Haneman, Wealth, Privilege, Power, And Opportunity, JOTWELL (December 22, 2021) (reviewing Allison Anna Tait, Inheriting Privilege, 106 Minn. L. Rev. __ (forthcoming 2022), available at SSRN), https://trustest.jotwell.com/wealth-privilege-power-and-opportunity/.

Don’t Forget About the Fakes

Reid Kress Weisbord & David Horton, Inheritance Forgery, 69 Duke L. J. 855 (2020).

In the Estates textbook I use, most of the will execution cases involve testators whose clear intent is unrealized because they bungled strict execution requirements. The Uniform Probate Code and the Restatement (Third) of Property: Wills and Other Donative Transfers—mainstays in any Estates class—are drafted to minimize the possibility of formal requirements interfering with testator intent. Reis Kress Weisbord and David Horton’s Inheritance Forgery is a counter-narrative that demonstrates how forgery remains a real and substantial risk of which the law must take account.

Weisbord and Horton argue that “counterfeit donative instruments are a serious problem.” (P. 855.) They focus on three donative transfers: wills, deeds, and life insurance beneficiary designations. To explore the prevalence of forged wills, the authors conduct empirical research in Alameda County, California. In a dataset consisting of every matter on the probate court’s docket in a one-year period, ten percent of will contests involved a forgery claim. (P. 876.) To document the forgery risk with deeds, the authors examine reported opinions since 2000, grand jury reports, and journalistic accounts of cases that were never litigated. As Weisbord and Horton explain, “these cases and stories share a common thread: deed forgers tend to prey on property that is owned by a decedent’s estate.” (P. 883.) To demonstrate that courts “routinely preside[] over claims that a life insurance form was falsified or fabricated,” the authors study reported opinions since 2000. (P. 889.) This empirical works reveals the extent to which forgery threatens the integrity of donative transfers.

Will forgery remains such a problem because policy makers fail to appreciate that it is a problem. Instead, the popular perception is that “forged wills are rare” and “just the stuff of novels.” (P. 870.) The Restatement (Third) does not even include forgery on its list of grounds for refusing to probate a will. (P. 871.) The Uniform Probate Code and some states have abolished purging statues that disincentivize beneficiaries from serving as witnesses; the Uniform Probate Code allows testators to use a notary instead of two witnesses; and in the most recent developments the Uniform Law Commission and some states have endorsed electronic wills. Unless policy makers appreciate the prevalence of forgery, they underestimate the risks inherent in each of these statutory changes. Moreover, Weisbord and Horton argue, the lack of attention to will forgery creates “festering areas of doctrinal uncertainty”, including issues about the burden of proof and burden shifting; whether a judge may look beyond the four corners of an instrument to determine due execution; and the “shaky science” of forensic handwriting analysis. (P. 882.)

The risk of forgery also plagues life insurance beneficiary designations, largely because life insurance companies lack adequate incentives to police for forgery. Under the rules of interpleader, the insurer that sues to compel adverse claimants to resolve their conflict can recover costs and attorney’s fees. Moreover, an insurer who learns of a forgery after it has paid the death benefit can fall back on facility-of-payment statutes. These statutes shield insurers from liability if they have acted in good faith and paid proceeds to the beneficiaries named on the policy—even if the names of those beneficiaries were forged. (P. 890.) Moreover, impleader rules and facility-of-payment statues “create perverse incentives for insurers to avoid scrutinizing death-beneficiary designations.” (P. 890.) This is because the less insurers know about the authenticity of the signature, the easier it is for the insurer to reap the benefit of the facility-of-payment statute and recover costs and fees in the interpleader action. Because less knowledge is advantageous to the insurer, companies make only “hollow gestures toward discouraging forgery.” (P. 891.)

Forgery on deeds may seem like a real property problem, not an estates problem. But Weisbord and Horton explain that forgers have “discovered another soft target: vacant real estate owned by the recently deceased.” (P. 885.) When a parcel is unoccupied and moving through the probate process, a counterfeit deed or trespasser may not be immediately detected. (P. 885.) Often the forger’s job is simple because recording a fake deed is “shockingly easy.” (P. 884.) The “overwhelming majority of Deed Registers [do] not try to authenticate legal instruments,” and many states expressly prohibit them from passing upon the validity of deeds because Registers are merely “ministerial officers.” (P. 884.) While all fake deeds are void, “untangling these legal knots can be time-consuming and expensive.” (P. 887.)

Weisbord and Horton’s explanation of why forgery is a contemporary problem previews their solutions. For beneficiary designations, they propose rule changes that would force life insurance companies to shoulder the burden of deterring forgery. For deeds, they suggest authentication protocols that would make it difficult to record a forged document. For wills, they are careful to note that many of the Uniform Probate Code’s innovations—harmless error, the abolition of purging statues, and holographic wills that only have material portions in the decedent’s handwriting—do not appear to increase the possibility of forgery. (Pp. 895-96.) However, Weisbord and Horton are skeptical of the trend to allow a notary to substitute for witnesses because “crooked notaries” appear in an alarmingly number of the will forgery cases. (P. 878.) The authors also are concerned about the potential of forgery with electronic wills and argue that authentication characteristics must be hard to fabricate, such as biometric measures. (P. 898.) Weisbord and Horton also advocate for reform of burden shifting and other doctrinal rules so as to eliminate the “powerful procedural advantage” held by the proponent of a will. (P. 899.)

From the first sentence to the last, Inheritance Forgery functions as a wake-up call: forgery is a modern-day problem that thwarts the intent of decedents and weakens our system of donative transfers. Policy makers should take note.

Cite as: Sarah Waldeck, Don’t Forget About the Fakes, JOTWELL (November 25, 2021) (reviewing Reid Kress Weisbord & David Horton, Inheritance Forgery, 69 Duke L. J. 855 (2020)), https://trustest.jotwell.com/dont-forget-about-the-fakes/.

Electronic Wills Are Just Like Paper Wills, Except When They’re Not

Adam J. Hirsch, Models of Electronic-Will Legislation, San Diego L. Stud. Res. Paper No. 21-014 (June 20, 2021), available at SSRN.

A conventional paper will must be in writing, signed by the testator, and signed by two witnesses. Statutes that authorize electronic wills (“e-wills”), by contrast, largely replicate the conventional will execution formalities in a digital format by giving legal effect to electronic documents that “are never reduced to paper.” (P. 164.) As of June 30, 2021, nine American states have enacted validating statutes for e-wills, and seven more states are considering e-will legislation. (Pp. 164, 165.) Currently, only one state, Oregon, expressly invalidates e-wills. (P. 166.) While American states are only recently beginning to address the validity of e-wills, certain foreign countries have had over two decades of experience with the concept. (P. 165.)

In Models of Electronic-Will Legislation, Professor Adam Jay Hirsch surveys the current landscape of e-will legislation in the United States and argues that states’ limited experience on the ground with e-wills renders the Uniform Law Commission’s approval in 2019 of the Uniform Electronic Wills Act (“Uniform Act”) premature. To enrich our understanding of the various options for validating e-wills, Professor Hirsch examines four competing legislative models that warrant policy and empirical analysis: (1) general validating statutes, such as the Uniform Act, which create general protocols for testators to formalize an e-will; (2) limited validating statutes, which are more limited designs for treating certain electronic records as an e-will; (3) emergency statutes, which validate only e-wills that serve a specific purpose, such as creating an estate plan during an emergency; and (4) remedial statutes, which validate e-wills that are otherwise not valid but are demonstrably intended as testamentary vehicles. (P. 165.) In thoroughly analyzing each legislative model, Professor Hirsch supports (among other things): (1) rejecting general validating legislation for e-wills because legislatures need time to develop substantive rules for e-wills, (2) enacting legislation explicitly proscribing e-wills, and (3) giving time to state legislatures to evaluate different models of e-will legislation, arguing that, because, among other things, there is currently little domestic experience with e-wills, the Uniform Electronic Wills Act is premature. (Pp. 206, 231-35.) This jot summarizes only some of the substantive rules discussed by Professor Hirsch and can only hint at the impressive depth and breadth of his analysis.

The first model, to which Professor Hirsch devotes the most attention, is a general validating statute. Professor Hirsch analyzes four aspects of this model: the writing requirement, the signature requirement, the self-proving affidavit, and will revocation.

As to the writing requirement, e-wills necessarily differ from paper wills because electronic documents are, of course, paperless. Under the Uniform Act, an e-will must be “readable as text” and, therefore, cannot be an audio or video file. (P. 168.) Professor Hirsch persuasively argues that, once wills are in the digital realm, words can be interchangeable between sound and text; he also notes that Uniform Law Commissioners acknowledge in a comment that “a will dictated by a testator onto a computer file using voice-recognition technology qualifies as an e-will.” (P. 169) The Uniform Act allows the remote witnessing of an e-will, but states have diverged on how witnesses should attest an e-will: some require the physical presence of witnesses, others permit remote witnessing, while still others permit remote witnesses only under limited circumstances. (P. 174.) I found persuasive Professor Hirsch’s critique of remote witnessing because the alarming rise of elder financial abuse and recent scourge of predatory caretakers pose a heightened risk of undue influence, duress, or fraud. (P. 176.)

As to the signature requirement for both testators and witnesses, the Uniform Act and seven states accept names typed into the file of an e-will as a form of electronic execution. Two other states, by contrast, require electronic signatures that are unique to the signatories. (P. 178.) The acceptance of typed (non-unique) names as signatures and the non-requirement of a date to an e-will in the Uniform Act and in six states (with three states requiring a dated e-will) leads Professor Hirsch to propose a notarization requirement for e-wills. (Pp. 181-83.) Notarization can protect against fraud or tampering with the e-will by, among other things, verifying the identities of witnesses and providing a record of the date of signing. (P. 184.)

A paper will can be “self-proved” if attesting witnesses sign an affidavit swearing to their participation in the will-formalizing process. (P. 185.) The Uniform Act, however, authorizes a self-proving e-will “only if the parties execute the e-will and affidavit ‘simultaneously’”—the Uniform Probate Code, by contrast, provides that the parties can “self-prove a conventional will immediately or at any time after the will’s execution.” (P. 187.) Two states currently have draft e-will legislation that omits the Uniform Act’s requirement of simultaneity. (P. 187.) Whether a self-proving affidavit is signed simultaneously with the will or not, allowing the affidavit to appear in the same digital file as the e-will exposes the e-will to tampering because metadata timestamps an electronic file’s last revision, but not the date or time of the e-will’s execution. Professor Hirsch proposes an elegant solution to this problem: “lawmakers could require parties to store any self-proving affidavit created ex post in a file separate from the e-will” so that the parties “could maintain the digital purity of an e-will.” (P. 189.)

Professor Hirsch explains that allowing an e-will to be revoked by physical act (rather than by express revocation by executing a subsequent writing) raises a host of novel issues. To revoke a conventional will by physical act, the testator must perform a revocatory physical act upon the original will with the intention to revoke it. But, assuming that deletion is the digital equivalent of a revocatory act, what file should be deleted? If an e‑will is signed and electronic copies are made immediately (or, even, at a later time), are they all originals? Does revocation of an original e-will by deletion also revoke all copies? The Uniform Law Commissioners nonetheless allowed revocation of an e-will by physical act because “many people would assume that they could revoke their wills by deleting them.” (P. 192.)

Revocation by physical act of an e-will without copies does not seem problematic, but revocation by physical act of an e-will with multiple copies does. One state (Indiana) requires the testator to permanently delete each copy of the electronic will, not just one of them—the Uniform Act, however, indicates in a comment that a “physical act ‘performed on one’ among ‘multiple copies’ suffices [for revocation].” (P. 194.) To explore whether Indiana law or the Uniform Act is more likely to correspond to people’s assumptions, Professor Hirsch undertook the “first-ever survey of popular assumptions about the revocation of e-wills.” (P. 195.) He asked 1,004 Americans if, assuming electronic wills are valid in your state and you created an electronic will in a file on one drive and made a copy of the will in a file on another drive, what do think you would have to do to revoke your will?—respondents could answer: (1) “Delete either one of the electronic will files,” or (2) “Delete both of the electronic will files.” 78% of the respondents indicated that they believed they would have to delete both of the files to revoke their electronic will. (P. 195.) Professor Hirsch concludes, “These data suggest that the Indianians’ rule of revocation better fits natural assumptions, and hence is more likely to minimize legal error, than the Commissioners’ rule.” (P. 195.)

Professor Hirsch’s analysis of the diverse treatment of the foregoing substantive laws (including a discussion of partial revocation and electronic trusts that are beyond the scope of this jot) leads to a view, expressed throughout his article, that legislatures need more time to develop the substantive laws of e-wills. Accordingly, Professor Hirsch supports a rejection of general validating legislation for e-wills. (P. 206.) To prevent existing conventional will legislation from being extended to e-wills, Professor Hirsch believes that the “safer course” is to “enact legislation explicitly proscribing e-wills.” (P. 206.)

The second model for e-will legislation provides for limited validating statutes, which “offer testators digital mechanisms for doing a more limited range of things.” (P. 206.) One example is a draft act in California allowing electronic pour-over wills but not other e-wills. (P. 209.) Professor Hirsch argues that, if a pour-over will is exclusively a pour-over will, then such an “abbreviated” will does not raise independent issues of fraud and allows the trust to become the “focus of attention.” (Pp. 209-10.) In those cases, Professor Hirsch proposes that the fate of the pour-over will can be tied to the fate of the trust. (P. 210.)

A third model for e-will legislation allows e-wills in emergencies. Emergency e-will legislation can co-exist with general validating statutes, but testators in emergencies should be allowed to dispense with formalities. (P. 214.) Although no American or foreign jurisdiction has enacted legislation authorizing e-will only in emergencies, two American states have draft legislation. Ohio has a draft e-will act allowing oral wills “made in the last sickness” with two disinterested witnesses in the testator’s physical or electronic presence, thus allowing for telephone wills. California has a draft e-will act allowing a textual, audio, or video e-will if the testator executed the e-will while “in contemplation, fear, or peril of imminent death, including self-created peril” and only if the testator does not survive “such imminent peril within 48 hours of creating” the e-will. (P. 215.)

The fourth model for e-will legislation provides for open-ended remedial rules, which allow an e-will to become valid “if a court determines that a testator intended an electronic record to function as a will, even though it is improperly formalized.” (P. 219.) A remedial rule could exist with or without any general validating statute for e-wills. (Id.) In 1990, the Uniform Probate Code added a dispensing power (allowing courts to dispense with formalities on a case-by-case basis when proponents seek to probate noncompliant wills), but, as of 2021, only eleven American states have enacted some version of the so-called “harmless-error” rule. (P. 220.) The Uniform Act combines a general validating statute with a harmless-error rule for defective e-wills. (P. 222.)

Of the nine states that enacted e-will legislation, two harmless-error jurisdictions have extended the dispensing power to e-wills. (P. 225.) Professor Hirsch notes that lawmakers considering remedial legislation for e-wills have several choices. First, although the Uniform Act allows for the harmless-error rule to be applied to an improperly-formalized e-will that is “readable as text,” Professor Hirsch supports expanding the rule to validate audio and video wills, noting that, if the harmless-error rule applies to emergencies, then the dispensing power should be broad. A second matter is the burden of proof—currently, the Uniform Act requires that proponents produce “clear-and-convincing evidence” to invoke the remedy of harmless error. Professor Hirsch theorizes that this heightened standard (over the usual civil preponderance of the evidence standard) was lawmakers’ attempt to make “outcomes more predictable and resistant to litigation, except where the equities are too glaring to ignore.” (P. 229.) He argues that the clear-and-convincing standard should be rejected because it is vaguer than a preponderance of the evidence standard and “generates less predictable outcomes, and hence invites more litigation, without any compensating benefits in terms of substantive justice.” (Id.) Professor Hirsch proposes shifting decisions over remediation from probate judges to “a higher court, in which lawmakers have greater confidence.” (Id.)

Professor Hirsch’s comprehensive discussion of four possible legislative models of e-will legislation and his impressive analysis of current and draft legislation in the United States and certain other countries have convinced me that e-wills require their own substantive rules because e-wills can sometimes differ greatly from paper wills. Currently, overall, American legislatures, courts, people, and society appear to have insufficient experience with e-wills. Professor Hirsch, this article, and his previous work on e-wills will help guide us in developing sophisticated and equitable substantive laws for e-wills.

Cite as: Michael Yu, Electronic Wills Are Just Like Paper Wills, Except When They’re Not, JOTWELL (October 27, 2021) (reviewing Adam J. Hirsch, Models of Electronic-Will Legislation, San Diego L. Stud. Res. Paper No. 21-014 (June 20, 2021), available at SSRN), https://trustest.jotwell.com/electronic-wills-are-just-like-paper-wills-except-when-theyre-not/.