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Katheleen Guzman, Wills Speak, 85 Brook. L. Rev. 647 (2020).

Interim Dean (Dean) Katheleen Guzman explores the pre-death relevance of a will by determining whether or when a will speaks. She analyzes the legal consequences of a validly executed will before death and the potential property rights of devisees of the will. The focus and thesis of the article reminded me of the adage, “if the tree falls forest and no one hears, does it make a sound?” In translation, I thought, “Does a will make a sound (have a legal effect) if it is never probated?”

As professors, we typically teach that wills are testamentary documents that have no effect until after the death of a testator and probate by the court. Dean Guzman challenges this perspective of the law by exploring the pre-death effect of a will. First, she makes a distinction between property rights and expectancies by comparing deeds to wills. While adding a name to a deed makes a present transfer of property, adding a name to a will may transfer property in the future. Because the will does not currently transfer property, the named devisee has an expectancy, which is not the equivalent of a present or future property interest.

Dean Guzman acknowledges the efficiency and wisdom in the current law that leaves property rights undisturbed for the testator who names a beneficiary in a will. Thus, transforming a will to make it operate like a deed would render the will irrevocable. This likely would have unintended consequences because testators would not have the opportunity to change their minds. Testator intent is foundational in wills law, and efforts to negate that intent would likely fail. Dean Guzman also posits such changes would lead to an even lower incidence of will executions and may pauperize the testator, thereby shifting the cost of care of the testator to the public. Even so, she challenges the notion that wills have no “voice” until after death; instead, she indicates, a will may speak upon execution.

Dean Guzman explains that testation is a form of speech by communicating with oneself through an expression in the document. The will execution heightens this expression when the testator “publishes” the will (a requirement in some states) because publication is a clear statement of testamentary intent. As Dean Guzman explains, a will has pre-death significance insofar as post mortem questions about interpretation or even incorporation by reference can make the date of execution significant. As such, the will execution represents a time when the will “speaks.” It has pre-death significance because it may have a legal effect on post-death title transfers.

Dean Guzman also explains how the execution date may affect standing to challenge a will. She briefly describes issues associated with standing and how often will challenges occur. She then explains the multiple ways the execution date may impact standing which identifies another time when wills communicate pre-death. In this way, wills also “speak” pre-death by changing beneficiaries or property bequests in a subsequent will. The revocatory effect occurs on the execution date of a subsequent will. The new will evidences the testator’s intent and “silences” the prior will. Thus wills do have an under-appreciated legal effect before probate.

In this article, Dean Guzman raises important policy questions. She does not suggest changes in the law as much as she expands the way we read and perceive the law. Her insight encourages a more nuanced appreciation of how wills operate. She encourages me both to think differently about how I teach the importance and impact of wills pre-death and also to question antiquated laws that have precedential value, but may need further explanation or expanded application based on Dean Guzman’s insight.

This article is also interesting because it offers various perspectives on how a will communicates, or has legal effect, before probate. By analyzing the many ways in which will executions impact post-death transfers, Dean Guzman correctly states how we should expand the ways we view and teach the legal pre-death significance of wills to our students. A will is an instrument that transfers property after death through the probate process, and the probate process is necessary to consummate the change. The more significant issues arise when we gloss over steps between the date of execution and ultimate title transference. By focusing on the will’s legal significance in the time period between writing and execution on the one hand, and death on the other, we may facilitate understanding of the critical role a pre-probate will plays in title transfers.

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Cite as: Phyllis C. Taite, If a Will is Never Probated, does it Make a Sound?, JOTWELL (June 22, 2021) (reviewing Katheleen Guzman, Wills Speak, 85 Brook. L. Rev. 647 (2020)), https://trustest.jotwell.com/if-a-will-is-never-probated-does-it-make-a-sound/.