Alexander A. Boni-Saenz, assistant professor of law, Chicago-Kent College of Law in Chicago.
More than 50 percent of adult Americans don’t have a will. Lack of a will may result in what the author calls “donative error,” when the individual’s donative preferences aren’t aligned with her state’s intestacy statutes. Many individuals lack the motivation to engage in estate planning, whether due to laziness, procrastination or discomfort discussing death. If an individual does have the motivation to execute a will, she may lack the resources to do so effectively because she can’t afford to hire a lawyer. If the individual does undertake to write a will and either doesn’t understand the law herself or has incompetent counsel, donative error may result because a court misconstrues or rejects a decedent’s will due to technical deficiencies.
The author asserts that formalistic probate rules are in tension with the probate system’s emphasis on donative intent and that the segment of the population that bears the burden of donative errors in the probate system is the middle class. The author urges simplification of probate rules to reduce the unequal distribution of undeserved donative errors among the middle class—individuals who lack access to legal knowledge or the resources to retain an attorney.
The article suggests two areas in which probate rules can be simplified. The first relates to will drafting and execution. For example, states could authorize other classes of professionals to draft wills or could expand the validity of holographic wills (those wholly in the handwriting of the testator) to allow an individual to be more self-reliant in his planning. Formalities relating to will execution could be liberalized. Laymen generally don’t understand the formalities required to execute a will. For example, many individuals believe a document is “legal” if it’s notarized. Only two states, Colorado and North Dakota, permit a will that’s merely been notarized to be admitted to probate. Legislative requirements, however, typically require a writing, signature and attestation by two witnesses. Adopting notarization may be a reasonable reform to reduce donative errors.
The author recognizes that formalities in the will execution process serve various functions, most importantly protecting the testator from being unduly influenced or coerced. Permitting non-attorneys to draft wills may not achieve donative intent. Retaining probate formalities to address these concerns may outweigh reducing inequality in the distribution of donative errors. The second area of probate simplification, therefore, focuses on probate court flexibility in dealing with imperfectly drafted or executed wills.
Other authors have proposed broadening the rules of judicial construction, for example by permitting judges to examine a wider range of evidence than the four corners of the will or by allowing courts to reform wills, particularly when there’s clear and convincing evidence of the decedent’s intent. Legislatures may be unwilling, however, to adopt reforms that require more fact-intensive inquiry by already burdened probate courts.
The author has taken a novel approach in suggesting probate reform not solely for its own sake but also to achieve “distributive justice” for a particular demographic of society.