We stand at the precipice of a major transfer of wealth: in the coming years, trillions of dollars will pass through the inheritance system to the next generation from millions of decedents. Potential beneficiaries may be tempted to engage in wrongdoing to alter or accelerate these transfers to their own benefit. In Crimes Against Probate, Kevin Bennardo and Mark Glover focus on one such type of wrongdoing: interference with wills. Whether it is through undue influence or fraud, will forgery or will suppression, the inheritance system must deal with this threat to the testator’s donative wishes.
Bennardo and Glover argue that the current legal regime does not adequately deter this type of misconduct, and they provide two major contributions to the literature. First, they offer a clever reconceptualization of the misconduct at issue as evidentiary rather than proprietary in nature. Second, they supply a concrete reform proposal, which is a new criminal offense of intentional or willful interference with probate. Scholars of both criminal law and trusts and estates will have much to learn from this cross-cutting piece of legal scholarship.
The authors first lay out the basic features of the inheritance system and identify the legal problem they will address. Because probate courts focus on the donative intent of the decedent, they are haunted by the so-called worst evidence problem, or the impossibility of calling the decedent to testify as to what they want done with their property after death. Instead, the court must evaluate second-best evidence of donative intent that was produced during life, such as a will. Wrongdoing that affects the content or availability of wills diminishes the evidentiary value of these documents and frustrates the search for donative intent.
The legal system has not been silent on this problem. The tort of intentional interference with inheritance—endorsed by the Restatement (Third) of Torts and accepted by nearly half the states—gives the decedent’s intended beneficiaries a cause of action against wrongdoers who encroach upon property the beneficiaries should receive. In addition, many states criminalize some relevant misconduct, either through specific offenses covering the forging of a will or more general provisions concerning the creation of fraudulent documents.
Bennardo and Glover critique this regulatory regime on several grounds. First, they argue that existing civil and criminal solutions do not adequately deter wrongdoing. Criminal penalties do not cover all transgressions, such as undue influence, and civil remedies do not necessarily provide the punitive damages needed for deterrence, given the manner in which probate courts process the relevant tort. Second, there are theoretical problems with defining the harm in these situations, as the frames of property or economic interference do not fully capture the phenomenon under consideration. Third, donative intent and the worst evidence problem are central to resolving these types of cases, but neither of the available actions in tort or criminal law were designed to resolve them effectively.
The authors then introduce a new theoretical frame that they believe will dissolve some of these tensions. Instead of conceptualizing the harm as one against property rights or an expectancy interest, the authors propose understanding the harm as an evidentiary one. Because the will is meant as evidence of donative intent, tampering with such evidence during the life of the testator or after death constitutes a harm against the proper functioning of the probate process. Thus, in their view, we should shift the inquiry from the donative intent of the testator to the criminal intent of the defendant, an inquiry that the criminal law is well-suited to address.
Their reform proposal naturally flows from this theoretical shift, and it is to create a new crime of intentional or willful interference with probate. Bennardo and Glover argue that this new offense is broad enough to encompass a variety of types of interference with probate while avoiding over-prosecution through a high scienter requirement coupled with the traditional high burden of proof of criminal prosecutions. The authors are careful to address other criminal law issues in this section, such as how attempted interference might be understood and how the statute of limitations should operate for the offense, given that the criminal conduct might occur well in the past in the case of a forged will. While not providing a recommendation for punishment, they suggest that sentencing be tied to existing punishment ranges for other evidentiary offenses, such as evidence tampering and perjury.
This Article left me pondering several issues both inside and outside of inheritance law, which is one of its major strengths. One topic that piqued my interest was the empirics of deterrence in the inheritance law context. Specifically, the authors at several points adopt the traditional law and economics view of the rational actor to reason about the adequacy of deterrence in the current or alternative legal regimes. I wonder whether real life wrongdoers are sufficiently close to this hypothetical rational actor to bear out the analysis. Do they have accurate enough knowledge of the law in this area to perform the calculus described by the authors about the benefits of success, the costs of failure, and the likelihood of success or failure? Further empirical work would help to illuminate this question. In addition, one might be skeptical of extending the criminal law regime, with all of its attendant social costs, without first having a sounder empirical basis for doing so. Regardless, by introducing a new theoretical frame and a concrete reform proposal, this Article represents an advance in both inheritance law theory and doctrine on the important issue of misconduct concerning wills.
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