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Kevin Noble Maillard, The Color of Testamentary Freedom, 62 SMU L. Rev. 1783 (2009), available at SSRN.

This work of recent scholarship in the field of wills law and legal history is an excellent and thought provoking piece and anyone interested in a critical analysis of race in its historical context should read it. This article is quite special and well worth reading for its detailed archival research and its innovative analytical approach. It is a welcome addition to the legal scholarship that studies the influence of race in the United States legal system, particularly in the area of Trusts and Estates.

In this beautifully written and thoroughly researched article, Kevin Noble Maillard, an Assistant Professor at Syracuse University College of Law and the Director, Angela Cooney Colloquium for Law and Humanities brings to bear his knowledge of Critical Race Theory, and Critical Legal Studies into the realm of the law of wills.
Professor Maillard initially observes how wills in which the main devisees are nontraditional close family members of the testator pose tremendous challenges to courts that have to decide the posthumous wishes of the testator. This is even more the case when these wills have excluded collateral heirs. He then points out that the collateral heirs who object to will provisions where the bequests to the nontraditional family members seem to expand the definition of the testator’s family stand to benefit from the tension between testamentary freedom and the social deviance of the family. In such instances, courts may privilege the interests of collateral heirs to the detriment of the nontraditional close family member. These nontraditional close family members are usually the unmarried cohabitant and nonmarital children of the testator, often of a different race than the testator.  In Professor Maillard’s view, wills with nontraditional family devisees act as evidence of moral or social transgressions, such as interracial sex and extramarital reproduction. This may be a reason why such wills are often subject to will contests by collateral heirs, who aim to use their white privilege and legitimacy status to overcome the clear intent of the testator.

The article then examines antebellum and postwar will contests between disinherited white heirs and black or mixed-race devisees. Following this examination, the article interrogates how the courts defined the family in these cases and how they typically upheld the expectancy of the collaterals by using the privilege of the white heirs and their status as legitimate under the law. This detailed analysis of the archival evidence in these historical will contest cases is one of the strengths of this article. It is true that other scholars have previously examined testamentary freedom and the legitimacy of diverse families, yet they have paid little attention to what Professor Maillard terms “the color of inheritance.” Professor Maillard thoughtfully draws upon Critical Race theorist Cheryl Harris’s seminal work on whiteness as property and racial expectation interests, to show the primacy of whiteness as a justification of the voiding testamentary transfers. This is the innovative analytical approach of this article- the use of Critical Race Theory in the area of Trusts and Estates law.  Professor Maillard further analyzes the judicial legal resistance to nontraditional families in these will contests and concludes that it undermines donative freedom — a bedrock principle of the law of wills. Thus, this article is a much needed a critical initial inquiry of the influence of race in testamentary transfers. It is hoped that future scholarship can further expand the scope of this critical inquiry into contemporary times.

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Cite as: María Pabón López, A Critical Race Theory Analysis of the Influence of Race in 19th Century will contests, JOTWELL (August 5, 2010) (reviewing Kevin Noble Maillard, The Color of Testamentary Freedom, 62 SMU L. Rev. 1783 (2009), available at SSRN),