Law Commons^™

Is A Will Better Than Intestacy?, Kristine S. Knaplund

University of Cincinnati Law Review

No abstract provided.

A Good Death: End-Of-Life Lawyering Through A Relational Autonomy Lens, Genevieve Mann

Washington Law Review

Death is difficult—even for lawyers who counsel clients on end-of-life planning. The predominant approach to counseling clients about death relies too heavily on traditional notions of personal autonomy and a nearly impenetrable right to be free from interference by others. Rooted in these notions, contracts called “advance directives” emerged as the primary tool for choosing one’s final destiny. Nevertheless, advance directives are underutilized and ineffective because many people are mired in death anxiety, indecision, and the weight of planning for a hypothetical illness. In the end, many do not get the death they choose: to trust in others and share …

How Gender And Other Identity Factors Influence Attitudes Toward Will Making: Lessons From Australia, Bridget J. Crawford, Tina Cockburn, Kelly Purser, Ho Fai Chan, Stephen Whyte, Uwe Dulleck

ACTEC Law Journal

This essay aims to stimulate interest in further empirical study of attitudes toward will making by reporting the results of a 2022 survey conducted in Australia of the general population (n=1202) and legal professionals (n=112). We asked participants for their views about the ideal age at which to begin the will-making process and the relative contributions of the client and attorney to any resulting will. There was a discernible gender-based difference in views on both questions. Women preferred to initiate those conversations approximately six years earlier than men did and, especially at earlier life stages, preferred less professional input into …

Legacies Of A Pandemic: Remote Attestation And Electronic Wills, Richard F. Storrow

Mitchell Hamline Law Review

No abstract provided.

Post-Pandemic Estate Planning: Analyzing The Recent Changes In Remote Notarization Laws, Matthew Fiedler

Seattle University Law Review

This Note explores estate planning in the post-pandemic landscape. Part I of this Note discusses how the resistance to remote technology in estate planning is rooted in traditional notions of formalism. Part II introduces a discussion regarding the use of remote technology, including its benefits and drawbacks. Part III articulates the current legal requirements to validly notarize signatures on various estate planning documents in Washington state. This part also discusses the extent of electronic or remote notarization allowed in the wake of emergency orders issued by Washington State Governor Jay Inslee in response to the spread of COVID-19. Additionally, Part …

Socially Distant Signing: Why Georgia Should Adopt Remote Will Execution In The Post-Covid World, Jessie Daniel Rankin

Georgia Law Review

In the wake of the COVID-19 pandemic, Georgia Governor Brian Kemp and other state governors issued emergency executive orders authorizing the attestation and execution of wills, trusts, and other testamentary documents through the use of audio-video technology. Most states have traditionally required that such testamentary documents be signed in the physical presence of two or more witnesses to be valid. Georgia’s executive order permits these witnesses to instead observe the signing via video-conferencing software, alleviating the requirement that the witnesses be physically present with the testator. This authorization, however, only exists through this executive order and could lapse or be …

Incentivizing Wills Through Tax, Margaret Ryznar

ACTEC Law Journal

There have been recent calls to loosen will formalities in order to allow more people to execute wills, the importance of which has been highlighted by the COVID-19 pandemic. The reduction of necessary will formalities can be successful in expanding the use of wills, as can potential tax incentives for creation of wills, such as a tax credit. However, there are numerous advantages to using tax to initiate change, as considered in this Article.

Inheritance Crimes, David Horton, Reid Kress Weisbord

Washington Law Review

The civil justice system has long struggled to resolve disputes over end-of-life transfers. The two most common grounds for challenging the validity of a gift, will, or trust— mental incapacity and undue influence—are vague, hinge on the state of mind of a dead person, and allow factfinders to substitute their own norms and preferences for the donor’s intent. In addition, the slayer doctrine—which prohibits killers from inheriting from their victims—has generated decades of constitutional challenges.

But recently, these controversial rules have migrated into an area where the stakes are significantly higher: the criminal justice system. For example, states have criminalized …

The Uniform Probate Code's New Intestacy And Class Gift Provisions, Mary Louise Fellows, Thomas P. Gallanis

ACTEC Law Journal

Law and society inextricably link family and wealth transmission. An individual’s right to inherit from an intestate decedent depends on whether the individual has a legally recognized familial relationship to the decedent. Similarly, when a class gift in a donative document uses a term of relationship to identify the class members, an individual’s right to share in the gift depends on the legal recognition of the relationship. The enactment of the 2017 Uniform Parentage Act required a revision of the intestacy and class gift provisions of the Uniform Probate Code.

We were the reporters, or principal drafters, of the UPC …

“Champion Man-Hater Of All Time”: Feminism, Insanity, And Property Rights In 1940s America, Magdalene Zier

Michigan Journal of Gender & Law

Legions of law students in property or trusts and estates courses have studied the will dispute, In re Strittmater’s Estate. The cases, casebooks, and treatises that cite Strittmater present the 1947 decision from New Jersey’s highest court as a model of the “insane delusion” doctrine. Readers learn that snubbed relatives successfully invalidated Louisa Strittmater’s will, which left her estate to the Equal Rights Amendment campaign, by convincing the court that her radical views on gender equality amounted to insanity and, thus, testamentary incapacity. By failing to provide any commentary or context on this overt sexism, these sources affirm the …

Rethinking The Estate Planning Curriculum, Jeffrey A. Cooper

ACTEC Law Journal

As a result of recent changes in Federal estate tax law, fewer and fewer clients need sophisticated estate tax planning. Many lawyers are thus spending less time acting as estate tax planners and instead deploying different skills and expertise.

In this brief article, I explore the extent to which law schools are rethinking their curricula as a result. The discussion proceeds in two parts. First, I discuss the curricular changes I have overseen at the law school at which I teach, setting out both the changes made and the assumptions underlying them. Second, relying on a brief survey of other …

Sb 301 - Wills, Trusts, And Administration Of Estates, Morgan S. Ownbey, Paul M. Napolitano

Georgia State University Law Review

The Act creates the “Revised Uniform Fiduciary Access to Digital Assets Act,” extends fiduciaries’ powers to include managing tangible property and digital assets, and provides conforming cross-references for a conservator.

Hb 121 - Property, Wills, Trusts, And Estates, Colt Burnett, Ben Dell'orto

Georgia State University Law Review

The Act amends several aspects of trust law, including updating the application of the Uniform Statutory Rule Against Perpetuities in Georgia by extending the time within which a nonvested property interest or power of appointment must vest from 90 to 360 years. The Act also allows for modifications of a trust without judicial approval in some cases. Many passages are simplified, including the calculation of compensation for a trustee, which can now be modified through different procedures. Finally, the Act codifies the role of trust directors.

The Prince Estate: How Intestacy Works, How It Could Work, And How It Fails As An Estate Plan, Dennis M. Patrick, Beth T. Morrison

Mitchell Hamline Law Review

No abstract provided.

Wills, Trusts, And Estates, J. William Gray Jr., Katherine E. Ramsey

University of Richmond Law Review

The Supreme Court of Virginia has handed down seven recent

decisions addressing the authority of an agent to change the principal's

estate plan, legal malpractice claims in estate planning,

rights of incapacitated adults, limits of the constructive trust doctrine,

effects of a reversionary clause in a deed, ownership of an

engagement ring, and proof of undue influence. The 2017 Virginia

General Assembly clarified rules on legal malpractice and tenancies

by the entireties, adopted the Uniform Trust Decanting Act

and the Uniform Fiduciary Access to Digital Assets Act, and expanded

provisions governing estate administration, life insurance,

and advance medical directives. Other …

Arbitration In Wills And Trusts: From George Washington To An Uncertain Present, Edward F. Sherman

Arbitration Law Review

No abstract provided.

In Defense Of The Harmless Error Rule’S Clear And Convincing Evidence Standard: A Response To Professor Baron, Mark Glover

Washington and Lee Law Review Online

In Irresolute Testators, Clear and Convincing Wills Law, Professor Jane Baron draws attention to a conflict between the mechanics of the law of wills and the realities of testation. Baron observes that the law of wills is designed to be used as a tool by resolute and rationale testators to communicate their intent regarding the distribution of property upon death. However, the law’s archetypical testator does not represent the many real testators who are irresolute and irrational, those possessing incoherent and only partially formed thoughts regarding the disposition of their estates.

Based upon the disconnect between the law’s paradigm …

Incomplete Dispositions, Naomi Cahn

Washington and Lee Law Review Online

In Irresolute Testators, Professor Jane Baron provocatively suggests the existence of two distinct types of testators: the rational, autonomous testator who has made deliberate choices about the contents of her will and whose errors, if any, are minor; and the more vulnerable, less resolute testator who may not have actually made the final decisions enshrined in a formal will. To illustrate how these testators appear in wills law, she analyzes how courts apply the doctrines of harmless error and mistake reformation. While the two doctrines appear to be intended to help the resolute testator, courts instead, she suggests, also …

Trial And Heirs: Antemortem Probate For The Changing American Family, Katherine M. Arango

Brooklyn Law Review

The notion of the traditional American family has changed due to complex family structures formed through remarriages, cohabitation, and same-sex couples. Freedom of disposition is a guiding principle of inheritance law, whereby society recognizes the value in protecting one’s ability to acquire and transfer personal property at death. However, intestacy statutes are antiquated and have failed to keep pace with the rise of the modern American family, thus leaving the right to freedom of disposition uncertain and vulnerable for a large population. A will is a way of opting out of intestacy, but given that a will is frequently the …

Irresolute Testators, Clear And Convicing Wills Law, Jane B. Baron

Washington and Lee Law Review

Controversial recent wills law reforms, embodied in new provisions of both the Uniform Probate Code and the Restatement of Property, excuse so-called harmless errors in will execution and permit judicial correction of erroneous terms in a will or trust. Both reforms pose evidentiary dangers, as proof of the error must come from outside the attested instrument and will be offered after the testator’s death. To respond to this concern, both the error and the testator’s true intent must be established by “clear and convincing” evidence. This Article is the first to examine how courts have applied the clear and convincing …

Not Your Mother's Will: Gender, Language, And Wills, Karen J. Sneddon

Marquette Law Review

“Boys will be boys, but girls must be young ladies” is an echoing patriarchal refrain from the past. Formal equality has not produced equality in all areas, as demonstrated by the continuing wage gap. Gender bias lingers and can be identified in language. This Article focuses on Wills, one of the oldest forms of legal documents, to explore the intersection of gender and language. With conceptual antecedents in pre-history, written Wills found in Ancient Egyptian tombs embody the core characteristics of modern Wills. The past endows the drafting and implementation of Wills with a wealth of traditions and experiences. The …

Where Strict Meets Substantial: Oklahoma Standards For The Execution Of A Will, Katheleen R. Guzman

Oklahoma Law Review

No abstract provided.

Protecting Freedom Of Testation: A Proposal For Law Reform, Eike G. Hosemann

University of Michigan Journal of Law Reform

This Article addresses a problem ever more pressing in wealthy and aging societies like the United States: interference with freedom of testation by the use of wrongful means such as undue influence or will forgery to acquire benefits through inheritance. A detailed analysis of the remedies against interference with freedom of testation under inheritance law, tort law, and equity reveals that there is currently a significant under-deterrence of this undesirable behavior. Hence, this Article proposes a new remedy in order to protect freedom of testation more effectively: a disinheritance statute barring wrongdoers that have infringed upon someone’s freedom of testation …

Incomplete Wills, Adam J. Hirsch

Michigan Law Review

This Article explores the problems that arise when a will fails to dispose of an individual's entire estate, so that she dies partially testate and partially intestate. The questions then raised include (1) whether provisions contained in the will purporting to redefine the individual's intestate heirs should supersede the statutory designations of those heirs, (2) whether inter vivos gifts to heirs should qualify as advancements on the inheritances of those heirs under conditions of partial intestacy, and, most broadly, (3) whether courts should fill in the incomplete portion of an individual's estate plan by extrapolating from the distributive preferences set …

Formalities And Formalism: A Critical Look At The Execution Of Wills, Charles I. Nelson, Jeanne M. Starck

Pepperdine Law Review

No abstract provided.

Oral Will Contracts And The Statute Of Frauds In California, 1896-1980: A Summary And Evaluation , Marc P. Bouret

Pepperdine Law Review

There is no longer any certainty that one can successfully argue that purely oral mutual promises to bequeath property are unenforceable due to the Statute of Frauds. The author traces the trends in the oral will contract area during the past eighty years. He then analyzes various exceptions to the Statute of Frauds which have developed to allow oral will contracts to be enforced during the lifetime of the promisor, or more frequently after his or her death.

"I'M Not Quite Dead Yet!": Rethinking The Anti-Lapse Redistribution Of A Dead Beneficiary's Gift, Eloisa C. Rodriguez-Dod

Cleveland State Law Review

A persistent challenge in law is how to achieve the necessary balance between individual decision-making and societal goals. This struggle of autonomy versus societal goals manifests itself in the context of anti-lapse law for wills and trusts. This article highlights how the current rules of construction regarding anti-lapse statutes fail both the goal of implementing intent and ensuring societal goals. An examination of the current statutes demonstrates that they are flawed, controversial, and, at times, result in inconsistent application. The current statutory scheme leads to unanswered questions: Should statutes presuppose distributions when an instrument does not explicitly address the specific …

Sharia-Compliant Wills: Principles, Recognition, And Enforcement, Omar T. Mohammedi

NYLS Law Review

No abstract provided.

Toward Economic Analysis Of The Uniform Probate Code, Daniel B. Kelly

University of Michigan Journal of Law Reform

Insights from economics and the economic analysis of law may be useful in analyzing succession law, including intestacy and wills as well as nonprobate transfers such as trusts. After surveying prior works that have examined succession from a functional perspective, I explore the possibility of utilizing tools like (i) transaction costs, (ii) the ex ante/ex post distinction, and (iii) rules versus standards, to illuminate the design of the Uniform Probate Code. Specifically, I investigate how these tools, which legal scholars have employed widely in other contexts, may be relevant in understanding events like the nonprobate revolution and issues like "dead …

The Greatest Heritage Is The Love Of A Family: The Larson Case And The Mediation Of Probate Disputes, Susan N. Gary

Pepperdine Dispute Resolution Law Journal

In 1981, two brothers, Ben and William Larson, began litigation that would last for four years. By the time the lawsuit ended, the "winning" brother was dead, and the other brother was bitter and estranged from the family of his only sibling. Although one can only speculate, had the brothers chosen mediation, rather than litigation, to resolve their dispute, both brothers might have achieved a better outcome.