Irresolute Testators, Clear and Convincing Wills Law

73 Pages Posted: 11 Sep 2015 Last revised: 4 May 2016

See all articles by Jane B. Baron

Jane B. Baron

Temple University - James E. Beasley School of Law

Date Written: July 1, 2015

Abstract

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 evidence standard to these important reforms of wills law. In practice, the clear and convincing evidence standard provides less evidentiary protection than its proponents expected. More importantly, judicial struggles with the clear and convincing evidence standard expose a deep fissure in the very concept of testamentary freedom.

The reforms assume — as does the Wills Act itself — a fully-formed, fixed set of choices that the testator has sought to express in his will, choices made by a conventionally rational choosing testamentary self for whom wills rules are a means for furthering self-determined ends. This conventionally-rational testator makes only innocent, inconsequential errors. Many of the testators in the actual cases, however, display only bounded rationality. Their errors are not simple accidental snafus. While the reforms contemplate correction only of the technical, innocuous expression or execution errors made by self-reliant, choosing testamentary selves, at least some courts care also about the more complicated errors made by vulnerable, irresolute testamentary selves. These courts push against the reforms’ boundaries. The clear and convincing evidence standard has not and will not function as a serious limit on mistake correction because it fails to reckon with both visions of testamentary freedom.

Keywords: wills and trusts, will execution, harmless error, safe harbor, clear and convincing evidence, bounded rationality, Wills Act, Uniform Probate Code, freedom of testation

JEL Classification: K10, K00, K30, K19

Suggested Citation

Baron, Jane B., Irresolute Testators, Clear and Convincing Wills Law (July 1, 2015). Washington and Lee Law Review, Vol. 73, No. 1, 2016 Forthcoming, Temple University Legal Studies Research Paper No. 2015-35, Available at SSRN: https://ssrn.com/abstract=2657592

Jane B. Baron (Contact Author)

Temple University - James E. Beasley School of Law ( email )

1719 N. Broad Street
Philadelphia, PA 19122
United States
215-204-8975 (Phone)
215-204-1185 (Fax)

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