Probate cases often arise from a complicated web of relationships between the decedent and family members, friends, caretakers, fiduciaries, and other parties. When the facts of a given case are especially complex, it is sometimes helpful to draw a visual diagram of the various relationships to better understand the dispute’s major fault lines: Whose interests are aligned? Whose interests are adverse? Which parties, if any, represent the interests of non-parties? Which parties are relevant to the dispute but did not enter an appearance? And finally, did any party enter an appearance but lack a legally sufficient connection to the dispute? In Probate Standing, Professor David Horton takes a deep dive into the latter question by expertly examining the important, though often overlooked, gatekeeping doctrine of probate standing. This Article breaks new ground, first, by identifying incoherent branches of the standing doctrine that undermine probate law’s bedrock policy of honoring testamentary intent and, second, by proposing sensible, minimally invasive reforms to clarify the standing rules in probate litigation.
The Article begins with a historical survey of Anglo-American common law from which Horton distills two alternative theories of probate standing: The “property theory” confers standing on anyone who can demonstrate a pecuniary stake in the probate matter. The “status theory,” in contrast, confers probate standing on intestate heirs to contest a decedent’s will. Horton explains that both theories are flawed. Under the property theory, for instance, an undue influencer can unfairly deprive a testator’s intestate heirs of standing to contest the will’s validity by procuring a series of unduly influenced wills because the contestant would have to (but might be unable to) contest every serial will to acquire a pecuniary interest as an intestate heir. Conversely, the status theory grants any intestate heir standing to contest a will’s validity even if the testator devised more than an intestate share to the heir, thus creating a judicial forum for estate litigation potentially motivated by emotion or revenge rather than by rational economic self-interest.
Horton then describes statutory refinements in which state legislatures attempted to define the term “interested person” for purposes of probate. Twenty-six states, for instance, adopted versions of UPC § 1-201(23) (1969), which enumerates the following individuals or organizations as “interested persons”: “heirs, devisees, children, spouses, creditors, beneficiaries, and any others having a property right in or claim against a trust estate or the estate of a decedent.” Horton argues, however, that the UPC’s definition unhelpfully blurs the two already-flawed theories: On the one hand, it undercuts the status theory by seeming to require probate litigants to demonstrate a property right in, or claim against, the estate even for heirs, devisees, children, spouses, creditors, and beneficiaries. On the other hand, it contradicts the property theory by seeming to confer all interested parties with probate standing, including those who lack a pecuniary interest.
To illustrate the confusion over probate standing, Horton describes a case that languished for years in Michigan state courts over the question of whether a revocable trust’s contingent beneficiary (here, one of the settlor’s children) could sue a living settlor-qua-trustee for breach of fiduciary duty. Applying the status theory, the trial court allowed the lawsuit, but, as Horton colorfully explains, “[a]ll hell broke loose on appeal.” (P. 25.) The conclusion, however, was frustratingly anticlimactic: The state supreme court ultimately denied review but nevertheless “vacat[ed] the lower court’s endorsement of the status theory as ‘unnecessary to resolve this case.’” (P. 26.) So even after years of litigation, we still do not know whether Michigan recognizes the status theory of probate standing.
Horton examines another doctrinal oddity in which probate courts seem to confer pseudo-standing upon themselves to take certain actions, such as removal of dishonest fiduciaries, “in the absence of any motion.” (P. 30.) In a recent California will contest, for instance, the state appellate court remarked in dicta that “nothing prevents the probate court on its own motion from raising the undue influence challenge.” (P. 30.) Such judicial power to effectively contest a will sua sponte seems odd given that the property theory of probate standing could preclude claims by even the testator’s own children if they lacked a pecuniary interest in setting aside the will. As Horton explains, “[p]robate judges’ ability to operate autonomously raises fundamental questions that no court or scholar has even tried to answer.” (P. 31.)
In the final part of the Article, Horton outlines reforms that could bring much needed clarity to this messy doctrine. Horton begins with a statutory analysis of UPC § 1-201(23), and cautions that the statute should not be interpreted as codifying the status theory, because parties with different interests in the estate should not necessarily be treated as having the same probate status. For instance, a creditor seeking collection on a decedent’s unpaid debts would have an interest in the estate’s administration of creditor claims, but not in contesting the decedent’s will because creditor claims are paid before the net estate is distributed to will beneficiaries. (P. 33.)
Horton then poses the most difficult question raised by his inquiry: What gatekeeping rules should the law impose to regulate the litigation rights of parties who lack a pecuniary stake in a probate dispute? Excluding such parties would conserve resources and deter emotionally driven claims in which fractured families use probate litigation as a weapon for avenging bad blood. But “requiring litigants to be injured can give safe harbor to individuals who exploit seniors” and can undermine inheritance law’s organizing principle of seeking to carry out the decedent’s intent. (P. 37.)
Horton balances those competing concerns by proposing a “liberal theory” of probate standing that would adopt the property theory as a starting point but liberalize its application: “once a litigant shows that their rights might be affected, probate courts should generally hear their claims.” (P. 39.) The liberal theory thus requires parties to demonstrate some interest in the outcome of litigation, but it adopts a capacious notion of “interest” to include “even the chance to gain a trivial benefit.” (P. 42.) Under Horton’s liberal theory, indirectly interested parties would have standing but uninterested parties would not. Horton then illustrates how the liberal theory would apply in various contexts to demonstrate the elegant simplicity of his reform proposal. (Pp. 44-47.)
In sum, Probate Standing makes a significant contribution to the literature by illuminating a complex and messy doctrine which, until now, has flown under the scholarly radar. This beautifully written, meticulously researched analysis of probate standing demonstrates Professor Horton’s exceptional gift as a legal scholar.
Trackbacks/Pingbacks