The Therapeutic Function of Testamentary Formality

Abstract

Therapeutic jurisprudence is concerned with the psychological consequences of the law. This article uses this burgeoning field to analyze one aspect of the estate planning process, namely the formalities of will-execution. The article first identifies the positive and negative psychological consequences of the formalities that require valid wills to be written, signed, and witnessed. Although the analysis suggests that, when coupled with a rule of strict compliance, these formalities can negatively affect the testator’s psychological wellbeing, the article ultimately concludes that testamentary formality serves an overall therapeutic function. The article then examines various reforms of the law of wills, such as the proposals to reduce the formality of will-execution and to relax the law’s insistence on strict literal compliance, to determine whether these proposals bolster or diminish testamentary formality’s therapeutic function. The article argues that these proposals have important therapeutic ramifications, which policymakers should consider when evaluating whether to implement reform.

Keywords: Therapeutic Jurisprudence, Estate Planning, Will Formalities, Trusts and Estates