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Incomplete wills.

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 out in the fragmentary will or by independent reference to the statutory rules of intestacy. The intent of testators is bound to vary on each of these points, this Article argues. In order to account for this predictable variation, lawmakers should grant courts limited discretion to resolve each of these issues on a case-by-case basis, taking into consideration both intrinsic and extrinsic evidence. Such an approach would differentiate the rules of partial intestacy from complete intestacy, which operates according to mechanical rules. This Article suggests policy reasons for drawing that distinction. The Article supports its analysis with empirical evidence drawn from data sets of published cases, a resource not previously exploited in connection with quantitative studies of inheritance law.

TABLE OF CONTENTS

INTRODUCTION
   I. THEORETICAL PROLOGUE
      A. The Object
      B. The Methodology
  II. REDEFINITIVE WILLS
      A. Negative Wills
         1. Analysis
         2. Ancillary Issues
         3. Estate Planning Gimmickry
      B. "Positive" Wills
 III. GIFTS AND INCOMPLETE WILLS
  IV. DISTRIBUTIVE RULES OF PARTIAL INTESTACY
      A. Existing Deviations
      B. Proposed Deviations
         1. Lapse
         2. No Residuary
         3. Empirical Evidence
      C. The Structure of Intestacy Law
CONCLUSION


INTRODUCTION

Anticipating the end of economic life, a will should leave no stone unturned and no property unaccounted for. One way or another, everything previously owned by a deceased person is going to pass into someone else's hands. The textual device for ensuring completeness of wills is a residuary clause. After making discrete provisions for individual beneficiaries (if desired), a testator concludes with an inclusive bequest: "All the rest of my estate goes to A." The dimensions of such a clause expand or contract as the testator accumulates or dissipates assets, covering whatever remains once all other bequests have been satisfied--no more and no less.

The problem arises that, every so often, testators fail to construct their wills in a manner producing a complete estate plan. (1) Some neglect to include an elastic residuary clause in their wills. Others include one that is itself incomplete: it may subdivide the residue into fractions that fall short of bequeathing the whole estate, (2) or the clause may create only one or more life estates, leaving unspecified the disposition of the remainder of the residue. (3) Still other testators create residuary bequests that prove ineffective for one reason or another. (4) In any such instance, the will becomes fragmentary, disposing of some, but not the sum, of the testator's property.

When that happens, law must step in where the testator left off. Of course, the same is also true if a person executes no will at all. In that event, statutory law crafts an estate plan for the intestate decedent, determining the heirs and their shares according to a schedule of contingencies. Although the schedule that applies in any given state varies, rules of intestacy are universally designed to operate mechanically. (5)

If a testator executes a will but leaves it incomplete, a so-called partial intestacy occurs: a decedent can be simultaneously testate (in part), and intestate (in part). Considered structurally, though, the problem of partial intestacy differs from "complete" intestacy, in that the author of an incomplete will has at least revealed something about her preferences in an executed writing. As a matter of policy, the key question is whether courts should have leave to consider testamentary context when confronted with an incomplete estate plan. Should lawmakers treat the stated terms of a will and the blank spaces that remain as isolated elements, filling in the blank spaces as if there were no will at all--that is, by recourse to the regular rules of intestacy? Or should lawmakers instead deem the terms of an incomplete will as relevant to the process of supplying the missing terms?

This problem arises with some regularity. Professor Sayre remarked in 1929 that "[e]ven a cursory examination of the current digests will disclose the large number of cases involving partial intestacy which appear in the reports every year," (6) and that observation remains no less true today. (7) Yet, the topic by and large has escaped notice by scholars. Until now, not a single work has perused the problem as a theoretical whole, and hardly any studies have addressed even bits of it. The instant study endeavors to fill this void. In Part I, I reflect briefly on the characteristics of the problem and on the analytical tools with which I shall probe it, including an empirical methodology not previously applied in any inheritance study. I then proceed to the substantive issues at hand. In Part II, I consider the implications of provisions in a will that ostensibly speak to the division of the intestate portion of the estate--provisions disinheriting heirs, for example. I turn next, in Part III, to the interplay of gifts and partial intestacy--to wit, should inter vivos transfers to an heir diminish her eventual share by right of partial intestacy under the same rules that apply to complete intestacy? Finally, in Part IV, I examine the larger question, potentially subsuming the previous Parts, of whether a will that says nothing pertinent to a partial intestacy should nevertheless serve as a template for the disposition of property not covered by the terms of that will. My thesis, elaborated in the pages following, is that no mechanical approach to any of these issues produces an appropriate result in all instances. Therefore, I will make the case for allowing courts greater latitude to effectuate intent in instances of partial intestacy than when presented with a complete intestacy.

I. THEORETICAL PROLOGUE

A. The Object

Wills are exercises in freedom of testation. When testators create an incomplete estate plan, they fail to take full advantage of the freedom they enjoy. What policy ends should lawmakers strive to accomplish under such conditions? Orthodox default-rule theory dictates that when a citizen fails to execute a will, lawmakers should give effect to whatever distributive scheme they expect the citizen would prefer, given her circumstances. By doing so, lawmakers enable citizens to rely on the estate plan provided by the intestacy statute and thereby avoid the transaction cost of executing a will. (8)

This analysis breaks down in connection with an incomplete will. In essence, estate planning represents an all-or-nothing proposition. One cannot reduce the marginal cost of this endeavor by engaging an attorney scrivener to plan for fewer assets, leaving the rest to flow under the rules of intestacy. Because the dimensions of a will do not affect its cost, estate planners take pains to ensure that the wills they draft are all-inclusive as a matter of course. Hence, wills are hardly ever incomplete by design. (9) Incompleteness typically stems from planning errors, often encountered in wills produced by lay drafters. (10) Transaction-cost efficiency offers no justification for attention to probable intent in this context.

Still, we can justify an intent-focused policy in connection with incomplete wills on other grounds. Because incompleteness comprises a problem that mainly plagues homemade wills, it is one largely confined to testators of lesser means. Economics aside, by effectuating probable intent, lawmakers extend to less fortunate testators who do their own drafting the advantages enjoyed by more affluent ones who can afford to pay for a professional product. Lawmakers thereby heed the principle of "equal planning under the law," a policy norm with divers and diverse applications in the inheritance realm. (11) Both judicial opinions and academic commentary have traditionally emphasized intent-effectuation in other doctrinal regions of the field, such as the construction of wills. (12) The mere absence of efficiency concerns at this juncture provides no affirmative justification for deviating from inheritance law's central policy.

B. The Methodology

That said, how can lawmakers gain insight into the probable preferences of a decedent who fails to elaborate her wishes under the terms of a will? In some number of situations, we may be able to make logical inferences about intent. Judicial opinions occasionally venture such deductions. (13) Ultimately, though, probable intent is both a function of, and revealed by, statistics. To answer statistical questions, we need data. Yet the sources of data open to study shrink alarmingly once we shift our gaze from the living to the dead.

Until quite recently, some law reformers were prepared to brush the problem aside. Reacting to criticism that the National Conference of Commissioners had failed to justify a provision of the Uniform Probate Code with empirical evidence, the Reporter for the Code retorted that its authors included "not only leading scholars in the field but also nationally known estate planners of considerable insight and experience.... Their cumulative experience suggests that they have a pretty good idea of what most clients want." (14) This claim, pronounced just a decade and a half ago, already sounds quaint today. In the interim, the current of empirical analysis has entered the mainstream, and legal commentators now appreciate that expert impressions afford no substitute for hard data. (15) And this desideratum becomes even stronger with respect to issues such as testamentary incompleteness, which arise out of planning errors. Seasoned estate planners know better than to make those errors and hence have little or no experience with the wishes of testators who leave their wills incomplete: the wills that experts draft never are.

No shortcuts, then, to the discovery of probable intent lie at our disposal. And barring a breakthrough in Ouija technology, we cannot readily tally the preferences of those who have passed from the scene. None of the available sources of data concerning their wishes comes without drawbacks of various sizes and shapes, threatening to compromise the data's reliability.

Many of the extant studies rely on surveys of the living as surrogates for decedents. These studies have collected information by distributing questionnaires or by conducting interviews over the telephone. Some researchers have solicited information about subjects' actual estate plans or distributive preferences. (16) Others have posed hypothetical questions to subjects, eliciting their reactions to imaginary scenarios. (17)

One difficulty with this technique is that the subset of persons who agree to participate in a study may be biased in ways that skew the results. (18) What is more, we have no assurance that subjects will even report their estate plans or preferences accurately. To the extent that her preferences deviate from perceived social norms, a subject might prevaricate to avoid embarrassment in her interaction with the researcher. (19) And even assuming subjects do state their preferences honestly, responses to a hypothetical vignette remain just that--hypothetical. Subjects may lack insight into scenarios alien to their experiences, (20) and they might offer snap judgments that differ systematically from the more reflective choices made by actual testators. (21) In this regard, eliciting data on how subjects would prefer to fill in the incomplete terms of an imaginary will appears futile--subjects would have no factual foundation on which to predicate their answers. Nor is a search for living testators who actually have an incomplete will practically feasible. Testators in this predicament rarely are aware of the fact; typically, evidence of incompleteness only comes to light in a probate proceeding.

The other traditional source of raw data for empirical inheritance studies is probate records. (22) Data gathered from this source provide trustworthy evidence of how testators behave in practice. What is more, unlike living subjects, decedents who make wills cannot refuse to contribute data to researchers. As collections of all wills submitted for probate, the records are comprehensive, and they also constitute public documents. (23)

Still, skewing could result from the data set's limitation to decedents whose estates are probated. (24) Poorer persons are disproportionately likely to execute no will, (25) and, whether they leave one or not, their estates are more likely to be settled informally. (26) At the same time, wealthier persons appear more inclined to rely on will substitutes that avoid probate and, unlike probated wills, remain private documents. (27) Probate records would seem a particularly unpromising resource for the study of incomplete wills. Incompleteness may not appear on the face of the wills preserved in the probate records in those instances where residuary, clauses are void (rather than absent). And recorded wills may also fail to illuminate how testators would have preferred to round out their estate plans.

This Article mines a third vein of data for the quantitative analysis of probable intent--a source not previously exploited in any existing studies in connection with inheritance law. Although this source of data will play just a part in the analysis presented here, its potential for enriching other inheritance studies bears noting; we should pause to remark its comparative advantages, as well as its disadvantages.

The data set developed in this Article derives from legal cases appearing in published law reports. One useful feature of this resource is its cumulative size, accreting over some two centuries in the United States. Although these cases represent only a drop in the ocean of estates catalogued in the surviving probate records, this mass of cases is easier to explore empirically. The cases are helpfully collected in electronic databases that the researcher can search by algorithm to pinpoint pertinent units of data. What is more, those cases may make available information not found in probate records. Often enough, judicial opinions reproduce sworn testimony, along with other factual details not divulged within the language of a will. (28) Opinions can therefore furnish evidence of incompleteness and of intent missing from the leaner probate records while featuring greater reliability than evidence harvested from an off-the-cuff survey.

No less importantly, the researcher can conduct such a study cost-efficiently. (29) The Reporter for the Uniform Probate Code excuses its failure (and the parallel failure of the Restatements) to rely on empirical evidence on the grounds that neither the National Conference of Commissioners nor the American Law Institute has the means to sponsor the requisite studies. (30) Because an empirical analysis of legal cases requires no archival research or field interviewing, a model lawmaking body--substantially composed of academics--could undertake the study without obtaining a grant. The instant study, pursued within an academic setting, relied on student research assistants to help collect and code the data, drawing on a budget for student assistants made available in some amount to professors at all major American law schools.

The concern remains that the data set of legal cases provides a relatively small sample of the universe of all estates. In one respect, the data set of published cases surpasses the range of probate records, in that these cases also cover litigation over living trusts (whose terms, although private, remain subject to discovery). Still, only a fraction of probate proceedings degenerate into a will contest, (31) only a fraction of those contests culminate in a decision rather than a settlement, (32) and only an (apparently shrinking (33)) fraction of those decisions ultimately appear, in print or in silica, as disseminated opinions. (34)

Accordingly, the sample of estates represented by all legal cases, however accessible, wide-ranging, and rich in factual data, could again suffer from selection bias. For example, theory suggests that litigation is more likely to ensue and to result in a published case where greater sums lie at stake. (35) Other biases may also exist, (36) and further concerns could crop up specifically in connection with the analysis of incomplete-will cases, as noted hereinafter. (37) To the extent that this data set--along with survey evidence and probate records--is subject to economic skewing, (38) the researcher can compensate by using more sophisticated techniques of stratified or quota sampling, although not without adding to the cost and complexity of the task at hand. (39) But we cannot control so easily for other biases, (40) let alone those that remain obscure to the researcher. (41)

Ultimately, then, we should rate a data set composed of published cases in the inheritance realm as suggestive, rather than definitive, and we cannot ignore the possibility that results gleaned from published cases comprise an artifact of the data set. Like other potential sources of data available to us, we have recourse to this one for better and for worse. Prudence thus demands that we remain modest in our claims about the import of the data. In fact, this diffidence can figure into the substance, as well as the strength, of our conclusions, as we shall presently see. (42) In light of our reservations about this and other sources of data, the ideal (albeit most costly) approach may be to study, and then to cross-examine, multiple data sets--published cases, and survey evidence, and probate records--in order to render our empirical conclusions more (or less) persuasive. (43) I have not endeavored to test my data in this manner in the instant study, largely because survey and probate studies appear so lacking in promise as windows into incomplete wills. Worthless data is not worth its cost.

But all of this is just by way of introduction. We turn now to the doctrinal issues of incomplete wills. The first of these concerns the effectiveness of provisions in a will that purport to operate on the missing parts through means other than outright bequests.

II. REDEFINITIVE WILLS

Testators typically express their intent by providing items or sums to beneficiaries. When testators leave incomplete wills, those items and sums fail to account for the entire estate. At this point, under current law, we look to the intestacy statute to furnish the balance of the estate plan. By tradition, intestacy statutes establish mechanical rules of distribution on the basis of contingencies, mainly concerning who the decedent's surviving family members are and how closely related they were to the decedent. Courts cannot consider evidence of intent when they apply rules of intestacy.

It happens that some testators express intentions about the distribution of their estates that do not take the form of explicit bequests. Occasionally, a will includes a statement that can be read to redefine who the testator's intestate heirs are. Such a redefinitive provision could become relevant if the will proves incomplete. But is such a provision recognized as legally effective? This issue has generated a fair bit of interest among lawmakers and among model lawmaking bodies. Or, to be more exact, part of it has.

A. Negative Wills

Consider a will that makes various bequests and then continues, "Under no circumstances shall my child, A, receive any portion of my estate," or words to that effect. In the context of a complete will, a statement along these lines is superfluous. The will itself provides all the information the court needs to distribute the entire estate to beneficiaries who the will affirmatively names. Any identification of beneficiaries excluded from the estate plan serves merely to add an exclamation point.

But suppose instead that the will fails to dispose of the testator's entire estate. The testator's child, A, comprises one of the heirs entitled to inherit, all else being equal, under the intestacy statute, which now controls that part of the estate to which the will failed to speak. The issue then arises whether the so-called "negative will" (44) operates to bar the disinherited heir from taking by right of intestacy--that is, whether the negative will redefines the statutory heirs. (45) Similarly, a will could provide that a beneficiary receive a certain sum "and nothing more of my estate," or words to that effect--not a pure negative will but, we might say, a limiting will. Again, the issue arises in connection with an incomplete will whether the limit established in that document also carries over to intestacy to block any statutory inheritance rights over and above the capped bequest.

British courts faced this "perplexing question" (46) for the first time early in the eighteenth century. Before long, those courts were hopelessly divided over the issue. Some gave effect to negative wills. (47) Others declined to do so. (48) And still others sought to reconcile these lines of cases by drawing doubtful distinctions between them. (49) The most recent British case on point, dating to 1983, takes the view that negative wills are enforceable, a position also accepted elsewhere in the Commonwealth. (50)

In the United States as well, this issue has produced a steady trickle of published cases. The first American cases, dating to the early nineteenth century, cited to British authorities and soon echoed their lack of consensus. (51) Over time, however, the view that negative wills are ineffective gained acceptance within American common law, (52) and modern cases have overruled most contrary precedents without smothering them entirely. (53)

In more recent years, statutory law in a number of jurisdictions has supplanted the common law to give effect to negative wills. In 1967, New York became the first state to enact such legislation. (54) The original version of the Uniform Probate Code, promulgated two years later, failed to address the issue. (55) In 1990, though, as part of a general revision of the substantive articles of the Code, the Commissioners added sections explicitly validating negative wills. (56) Fifteen states have since enacted statutes based on this language; four others have enacted nonuniform legislation to the same effect. (57) Finally, in 1999, the third Restatement of Property chimed in, urging courts to reverse the common law nullification of negative wills in jurisdictions where statutory law fails to govern the issue. (58) We cannot count the Restatement as an independent voice, however, since both the Restatement and the Uniform Probate Code share the same Reporter. (59) At any rate, no cases reconsidering the common law of negative wills have yet appeared. Altogether twenty states today give effect to negative wills either by statute or case law. (60) Twenty-five do not, and the issue has yet to arise in the remaining five. (61)

The argument repeatedly offered in favor of honoring negative wills is simple enough: doing so accords with the intent of the testator. The medium through which testators express their intent should make no difference, critics have urged: "[A] clearly expressed negative intention is entitled to equal weight with a positive one." (62) New York's pioneering statutory reform of the law of negative wills in 1967 was premised on this rationale. (63) In unison, the Uniform Probate Code and the Restatement both opine that the American common law rule "defeats a testator's intent for no sufficient reason." (64)

Courts in turn have defended the traditional rule on several grounds. One venerable rationale is formalistic in nature: courts assert that, whereas a testator is free to bequeath under a will, "no man can institute a law of descent [i.e., intestacy] for his own property, in conflict with the general law." (65) In other words, a will can supersede the statutory rules of intestacy but cannot modify them; once we proceed to the statute to apportion property not distributed by will, the will no longer operates. A negative will purports to redefine shares during this second stage, after the mechanical rules of intestacy have come into effect. In this dimension, however, intent becomes irrelevant, and any expressions of authority emanating from a will comprise (in the delightful words of one early court) "a perfect brutum fulmen"--inert thunder. (66)

As a matter of policy, obviously, this argument begs the question. Negative wills could easily enough become part of the "general law" (67) of intestacy if a legislature viewed their enforcement as expedient. Even as a doctrinal matter, the suggestion that the intestacy statute takes precedence over negative wills is questionable. (68) Testators can negate other statutory default rules by virtue of individualized provisions in their wills. For example, a testator's statement in a will that "any child of mine omitted from this will receives no share of my estate under the pretermitted child statute," suffices to preempt that statute. This special type of negative will is universally acknowledged as valid because, in every jurisdiction, the statute expressly bows to contrary expressions of intent within a will. (69) Although they likewise comprise default rules, traditional intestacy statutes make no such express allowance for a negative will--but neither do they expressly disallow one as a means of ousting the default rule. The treatment of negative wills therefore represents a lacuna in most intestacy statutes, which courts could claim the right to fill with common law. Courts inclined to give effect to negative wills have brushed aside the suggestion that they lacked the power to do so. (70)

More purposefully, several early courts asserted that by nullifying negative wills, at least those directed at descendants, lawmakers advanced social policy. Because "[the] act of disinheriting a child ... is one which the law cannot regard very favorably," courts felt justified in insisting that testators accomplish their intent through the limited channel of affirmative bequests. (71) Viewed from this perspective, a law invalidating negative wills would make the default rule in favor of inheritance by descendants a "sticky default," in theoretical jargon, allowing testators to override the default but only by following the appropriate "altering rule." (72)

Sticky defaults become difficult to condone in the realm of inheritance, however, because they inevitably discriminate against more poorly counseled testators. (73) If the social policy at issue is important enough, then lawmakers should make rules that promote it mandatory and applicable to all. Sticky defaults merely set traps for the unwary. At any rate, lawmakers no longer strive to reinforce the rights of descendants--if anything, lawmakers have eased the task of overriding intestacy statutes, for example, by streamlining the formalities of will execution. (74) The notion that invalidating negative wills serves to protect the interests of descendants is plainly outdated, and it has not reappeared in modern cases. (75)

Still other courts have defended the common law rule invalidating negative wills as potentially consistent with testators' intent. These courts point out that because few testators anticipate partial intestacy, intending rather to execute a complete will, they do not ordinarily contemplate that negative wills serve any distributive function. When some unforeseen circumstance subsequently renders a will incomplete, its author might well prefer that a disinheriting provision remain insignificant. As one court explained, "The will was made in view of conditions existing at the time of its execution.... What [the testator's] actual intent may have been after the conditions were changed by the death of [a residuary beneficiary, causing a partial intestacy], we have no means of knowing...." (76)

1. Analysis

How confident can we be, then, about a testator's intent to redefine heirs by virtue of a negative will? That is the crux of the matter, which lawmakers bent on giving effect to such language appear to have breezed over a trifle too quickly. The best way to pursue the problem is to consider what might prompt testators to make a negative will and then to gauge their probable intentions in that light. Upon investigation, one discovers several possible inspirations for these provisions, all found regularly in the published cases.

One obvious stimulus for a negative will is feelings of hostility toward the identified family member (or members). Testators sometimes couch a disinheriting provision expressly in such terms: "[These heirs] never bother about me in life. So I remember them in Death." (77) Logic suggests that when sentiments of this sort inform an estate plan, the testator would prefer that a negative will govern the distribution of the estate, to the extent that the intestacy statute becomes relevant. (78) Intervening events that might render it relevant--such as invalidity of the residuary bequest because the residuary taker predeceases the testator--appear unlikely to ameliorate the testator's expressed antagonism toward particular heirs who do survive.

At least one court has assumed that a negative will implied "dislike" of the disinherited heirs, even though the will failed to say so; (79) perhaps model lawmakers who advocate giving effect to disinheriting provisions make the same assumption. Examination of the cases reveals other explanations for negative wills, however. Some testators indicate that they have already provided for disinherited heirs by lifetime gifts. (80) Others assert that disinherited heirs have less need than the loved ones that testators have chosen to benefit under their wills. (81) In neither instance can we reliably infer that a testator would want a negative will to become operative if and when a will proves incomplete, If a partial intestacy occurs because a residuary beneficiary unexpectedly predeceased the testator, then that beneficiary no longer needs the testator's largesse in priority over the disinherited heir. This change of circumstance raises the specter that the testator might want to revisit the share going to the disinherited heir. (82) Even if a testator dies partially intestate because she set out no residuary clause to begin with, this fact suggests that she failed to foresee the value of the estate, part of which the testator may have acquired after the will was executed. Reevaluation of the distribution of the property unaccounted for by the will might cause the testator to amend the amount going to the disinherited heir on the assumption that the will covered everything. In the absence of hostility, such amendments of intent grow more likely. Of course, in such a case, the will itself is unlikely to reveal what revisions, if any, the testator would have made, but at least these circumstances bring intent into question.

Still another explanation for negative wills in some instances is mistake. Testators are now and then anxious to preclude unknown or as yet unborn children from taking a share of an estate governed by a complete will under pretermitted child statutes; in most states, these statutes set aside a share (traditionally, an intestate share) of the estate for any child born after the will is executed, or, in a minority of states, for any child, whenever born, omitted without mention in the will. (83) A testator can override these statutory directives by explicit provision in the will, but in seeking to do so some testators express themselves imperfectly, using broader language that transforms the provision into a negative will. Hence, one can discover in the case law a disinheriting provision that reads, "I have intentionally omitted to provide herein for any of my heirs who are living at the time of my demise, and to any person who shall successfully claim to be an heir of mine ... I hereby bequeath the sum of ONE DOLLAR...." (84) Quite possibly, the testator would not have intended this clause to pertain to known heirs, in the event of a partial intestacy.

Bizarrely, the will of Vickie Lynn Marshall (also known as Anna Nicole Smith) included such a provision, stating that "I have intentionally omitted to provide for my spouse and other heirs, including future spouses and children and other descendants now living and those hereafter born or adopted," (85) even though she, as a woman, was incapable of having unknown children. (86) When her sole beneficiary (a son, Daniel) predeceased her at the age of twenty, her afterborn, infant daughter, Dannielynn, was barred from her estate under the language of the will. But Dannielynn was lucky: she could still take by intestacy, because negative wills are ineffective in California, where Smith was domiciled. (87) Doubtless, any other result would have left Smith spinning in her grave.

Courts have had to confront these matters directly with regard to a related issue. Suppose a beneficiary named in a will predeceases the testator. Under modern antilapse statutes, if the late beneficiary was a close family member, the bequest goes instead to her descendants if any survive, and otherwise to the residuary beneficiary, unless the will provides for this contingency. Now, suppose the will contains no contingency clause naming an alternative taker in the event that a beneficiary predeceases the testator; but the will does include a separate clause expressly disinheriting the descendant of a beneficiary who, as events unfold, predeceases the testator. Because a testator's will can countermand orders of distribution dictated by an antilapse statute, (88) courts have a clear mandate to give effect to a negative will insofar as it speaks to the distribution of the testamentary estate. But do courts construe such clauses as intended to supersede the rules of antilapse?

In fact, most courts have ruled to the contrary. Some have observed that a provision of this sort is not dispositive, because the beneficiary's premature death changes intent. (89) Others have dismissed disinheriting clauses in this situation as intended only to override pretermitted child statutes. (90) The inference that a beneficiary's death would cause a testator to withdraw a negative will applicable to the beneficiary's descendant gains strength, logically in this scenario, because the testator must have realized that if the beneficiary had survived, then (at least ordinarily) her descendant would benefit indirectly from the bequest. When directed at the descendant of a named beneficiary, a negative will can rarely serve any purpose other than to underscore the testator's wish that the named beneficiary take first. (91) Negative wills potentially applicable in instances of partial intestacy are not confined to descendants of beneficiaries, of course, but the possibility (albeit not a logical necessity) that changes of circumstance would have altered intent once again arises in this context, assuming the testator expressed no hostility toward disinherited heirs.

All of which suggests that lawmakers toiling in this field have something to learn from empirical evidence. If hostility provokes the lion's share of negative wills, then lawmakers can justify enforcement of these provisions as a majoritarian, intent-effectuating rule. If hostility provokes only a minority of negative wills, however, their enforcement becomes problematic.

In order to gain insight into the distribution of motivations for negative wills, I have striven to assemble a comprehensive data set of published American cases, without restriction as to date, in which negative wills appeared. I then examined each of those cases to determine the testator's motive for disinheriting the heir (or heirs), as shown either by the will or other evidence. (92) The cases broke down as follows:

Hostility:      42    (20.4%)
Nonhostility:   53    (25.7%)
Unclear:       111    (53.9%)
Total:         206


And so, perhaps contrary to intuition, we find that hostility has figured in a minority of the published cases where an explanation for a disinheriting provision presents itself; other, benign considerations have induced more negative wills. Looking exclusively at the cases in which we can discern the testator's frame of mind, motivation proved nonhostile in 55.8 percent of the cases and hostile in 44.2 percent. We cannot, therefore, safely assume, pace the Uniform Probate Code and the Restatement, that a per se rule giving effect to negative wills is more likely to correspond with the typical testator's intent than the common law's per se rule invalidating negative wills. To make a blanket presumption here is, well, presumptuous.

Still, we must take care to note the limitations of these data. The data set of informative cases turns out to be relatively small: ninety-five in all. Assuming the cases account for a random sample of negative wills, the margin of error is [+ or -] 10 percent. Accordingly, the data are not statistically significant for the purpose of establishing that a majority of negative wills are nonhostile. Furthermore, we have reason to doubt the perfect randomness of the data, even beyond the general sampling concerns raised earlier. (93)

First of all, quantitative reliance on manifestations of hostility or nonhostility could skew the results in unpredictable ways. In other words, hostility could prove unequally distributed between negative-will cases in which we can detect evidence of either hostility or nonhostility, and those cases in which we can detect nothing one way or the other about the motives driving the testator--the second group representing over 54 percent of the data set. One potential distortion arises from widespread estate-planning practices. Estate planners typically advise testators against stating hurtful rationales of any sort within the text of their wills. (94) Hence, at least within professionally drafted wills, expressions of hostile motivation may prove underrepresented. At the same time, disinheriting provisions frequently appear within homemade wills, prepared without the coolheaded advice of counsel. Uncounseled testators might be less inclined to leave their motives unsaid when hostility inspires a negative will. (95) In this regard, a data set consisting of cases should provide fuller information than one consisting of probated wills, since cases sometimes reveal evidence of motive beyond the four walls of the wills they adjudicate. (96) Nevertheless, the cumulative impact of any tendencies to downplay hostile motives remains unknown and probably unknowable.

A second possible distortion is related to, but could tend to offset, the first. If expressions of hostility are underrepresented in the language of wills, they might prove overrepresented in cases about wills. Estate planners counsel against including such a statement in a will, precisely because they fear that the statement might trigger a contest once the will becomes a public document. (97) This practical intuition commands some theoretical support. Cognitive psychologists posit that "equity seeking" can overcome rational economic incentives to settle cases, a phenomenon we would expect to see escalate in emotionally charged cases. (98) The shock of a negative will coupled with an overt statement of hostility could disincline a contestant to settle a will contest, thereby increasing the likelihood that it generates an opinion included in the data set. This distortion is confined to a data set of cases, as opposed to probate records.

All told, our confidence in these data as a precise indicator of the distribution of motives for negative wills remains open to doubt. Applied as a rough barometer, the data nonetheless suggest substantial scattering of testamentary motives. The absence of a predominant cause for negative wills gives rise to heterogeneity that neither the common law nor the model laws, located at either end of the doctrinal spectrum, make any attempt to cope with.

Can we locate a via media between the two extremes? Rather than follow a per se rule, why not grant courts authority to assess the impact of a negative will on a case-by-case basis, taking into account both intrinsic and extrinsic evidence? Such an approach offers the advantage of fine-tuning judicial outcomes to intent, which the data suggest is likely to vary from testator to testator. (99) Such an approach also acknowledges our uncertainties about the reliability of the available empirical evidence, which weakens our ability to certify which of the fixed alternatives would comprise the majoritarian rule.

At the same time, evidence of testamentary intent concerning a negative will in a given case may emerge from any number of sources. In some instances, the will itself may disclose the presence (or absence) of hostile intent, whether expressly (100) or by reasonable inference from the language used. When, for example, a testator stipulates that specified heirs "shall not receive one penny of my estate," hostility appears manifest. (101) If a will was professionally drafted, the attorney scrivener (or her notes) may provide insight into what led the testator to execute a negative will. (102) Likewise, testimony by family members or other acquaintances could shed light on the testator's motives. (103) Alternatively, aspects of the estate plan may themselves betray the testator's sentiments. If, for example, a testator makes a bequest to a beneficiary but then adds a direction that she is to receive "no more" than that--what we earlier distinguished as a limiting will (104)--and the sum bequeathed is substantial, that fact alone bespeaks nonhostility. (105) Otherwise, presumably, the testator would have left the beneficiary nothing. Similarly, if a testator imposes a negative will on an heir but nevertheless provides a bequest to her under some circumstances, that qualification can suggest the absence of hostility toward the heir. (106)

Still, a court is left to decide how to treat nonhostile negative wills, whose enforcement might or might not reflect the testator's preferences. A court could again seek to ferret out intent case by case, but in the absence of any further evidence of how the circumstances that brought about the partial intestacy would have affected intent, what sorts of inferences might a court reasonably draw? Whatever the cause of a partial intestacy, where the alternative taker is less closely related genealogically to the testator than the disinherited heir, a court could reasonably assume the absence of intent to give effect to a nonhostile negative will, given the tendency of most persons to favor nearer relatives over more distant ones--an assumption made throughout intestacy law. So, for example, if a testator were expressly to disinherit one of two children, explaining the negative will not on the basis of hostility but rather on her relative lack of need or on prior transfers made to her, then the death of the beneficiary-child resulting in a partial intestacy should not trigger the negative will, in the absence of other evidence, if the alternative heir were, for instance, a cousin of the testator. (107)

Lawmakers would still need to set a rebuttable presumption about the testator's intent to make a negative will effective vel non, where a court finds no evidence of intent one way or the other. Existing empirical evidence fails to reveal what the presumption should be because courts have not previously relied on case-specific indications of intent to resolve the effectiveness of negative wills. At least in the short term, the rebuttable presumption must be set arbitrarily. But once enough cases decided under the new rule accumulate, a follow-up empirical study might reveal patterns that could, on reevaluation, inform our formulation of the applicable presumption.
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Title Annotation:Introduction through II. Redefinitive Wills A. Negative Wills 1. Analysis, p. 1423-1446
Author:Hirsch, Adam J.
Publication:Michigan Law Review
Date:Jun 1, 2013
Words:6985
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