When I read the premise of Mark Glover’s terrific new article Nominal Bequests—that some small-dollar gifts are problematic—I couldn’t help wonder whether it was a kind of stunt, like writing a novel without using the letter “e.” What could be wrong with testamentary gifts of trivial sums? Even if these bequests were somehow harmful, wouldn’t the payoff from regulating them pale in comparison to the costs? But Glover (who has been publishing up a storm) is waiting in the weeds with creative and thoughtful answers.
For starters, Glover argues that “[s]ome nominal bequests . . . are wasteful” and “undermine the fundamental policies of the law of succession.” He astutely observes that testators invariably make nominal bequests for one of two reasons. First, some are motivated by spite. Glover offers the real-life example of a mother who left each of her four daughters $1 and quips that she “wanted to give [them] something worse than nothing.” Second, Glover notes, other testators are laboring under a mistake of law. They want to disinherit the beneficiary entirely, but they incorrectly believe that they must acknowledge the individual to prevent a court from deeming the individual to be accidentally omitted. Either way, Glover contends, there’s no social value in implementing these testators’ wishes. Freedom of disposition supposedly encourages industry and thrift, but “[t]he donor has no reason to increase her wealth during life to functionally disinherit the beneficiary at death.”
In addition, Glover provides several crackerjack examples of how nominal bequests can cause headaches. For starters, he shows that they generate perverse results under standing doctrine. Most states bestow the right to challenge a will or a trust upon “interested person[s]”: very roughly, people who would reap a pecuniary benefit from the invalidity of the instrument. Suppose T leaves Son nothing in Will 1 and nothing in Will 2. Son isn’t an “interested person” with standing to contest Will 2 because even if Son won on the merits, Son wouldn’t take anything from Will 1. But now let’s say that T left Son $5 in Will 1. That changes the calculus: Son would take a five spot if he prevailed, which opens the courthouse door and allows him to “disrupt[ T’s] clearly established estate plan.” Similarly, Glover reveals that tiny gifts create administrative costs when a beneficiary who is closely related to the testator dies first. Under antilapse statutes, the predeceasing beneficiary’s descendants take whatever their ancestor was supposed to get. But when that share is a mere token, and there are many such descendants, the executor may spend resources to achieve a goal that has no discernible upside. Finally, Glover explains that the government must take custody of unclaimed property even when the amount is negligible. In turn, this means that the state “incurs costs associated with safekeeping unclaimed bequests, maintaining records, and processing claims.”
Finally, in an imaginative proposal, Glover urges the legal system to treat executors as having a special power of appointment over the de minimis bequest with the “beneficiary being the permissible appointee.” He explains that this would solve the problems he previously flagged by denying standing to the beneficiary and giving a trusted third party the discretion not to distribute the money if doing so would be expensive or burdensome.
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