Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Monday, December 24, 2012

Article about Testation and Speech

David-HortonDavid Horton (Acting Professor of Law, University of California, Davis) recently published his article entitled Testation and Speech, 101 Geo. L.J. 61 (November 2012).  The introduction to the article is available below: 


Max Feinberg, a Chicago dentist, had been dead for twenty-two years when he made front-page news.  The son of immigrants who fled anti-Semitism in Russia, Max had always been proud of his religious heritage.  His family described him as a “traditionalist”: a conservative investor who wore a coat and tie to the office even on weekends.  But as he aged, he became preoccupied with the high rate of intermarriage among young Jews and with his own family's gravitation toward other cultures and traditions.  Shortly before he died, he learned that his grandson had taken a gentile to the junior prom.  He retaliated by inserting a restriction into his trust: “A descendant of mine ... who marries outside the Jewish faith ... shall be deemed to be deceased for all purposes of this instrument ....”
Decades later, Max's grandchildren challenged the validity of this provision, which they called the “Jewish clause.”  In a decision that received national  media attention, an Illinois appellate court held that the ““Jewish clause” violated public policy by discouraging Max's grandchildren from marrying whomever they wished.  However, the court's deep ambivalence shone through. Each member of the three-judge panel wrote a separate opinion. Although the dissent claimed that Max merely sought to “preserve [a] 4,000-year-old heritage,” the concurrence accused him of fostering “the worst bigotry imaginable.”  Nevertheless, the Illinois Supreme Court unanimously reversed, reasoning that the state must honor a testator's choices even if they “might be offensive ... to outside observers ....” 
The sharp divide over Max Feinberg's estate plan reflects an evolving tension in U.S. wills-and-trusts law. Traditionally, the field's first principle has been testamentary freedom: the idea that owners enjoy “the nearly unrestricted right to dispose of their property as they please.” This deferential approach has long been one of the most blazingly idiosyncratic traits of all American jurisprudence. Other western legal systems carve out a mandatory share of decedents' assets for their dependents or allow judges to rewrite ““inequitable” estate plans under family-maintenance regimes.  Conversely, in forty-nine states and the District of Columbia, testators and settlors may disinherit their children and grandchildren, even if doing so would be “unreasonable, unjust, injudicious, or cruel.”  American testators and settlors also enjoy broad dead-hand control: the privilege to regulate their belongings long after they pass away.  In fact, over the course of the last two decades, dead-hand power has expanded dramatically, as twenty-one jurisdictions have abolished the Rule Against Perpetuities (a doctrine that capped trust duration at roughly ninety years). Settlors in these states can now write their estate plans on a canvas the size of eternity.
Yet this monumental change has provoked a backlash. With Americans projected to bequeath $41 trillion in the next half-century--the largest intergenerational wealth transfer in history--some scholars and policymakers have begun to focus less on honoring testamentary intent and more on preserving the value of the corpus. This movement is particularly striking in trust law, where a rash of recent doctrinal adjustments has stripped settlors of power. For example, the Uniform Trust Code (UTC), the Restatement (Third) of Trusts (Restatement Third), and a rising number of states now require “[a] trust and its terms [to be] for the benefit of its beneficiaries.”  Although the scope of this newly minted rule is unclear, it arguably imperils many testamentary commands, including personal conditions such as Max Feinberg's “Jewish clause.”  In addition, although trust law has traditionally consisted of default rules, the UTC contains an array of “intent-defeating” mandatory doctrines that have the potential to thwart strong testamentary preferences. Thus, the contours of testamentary freedom have become longer but thinner: the dead may be able to control their property forever, but they have less actual control over their property.
In this Article, I offer a different take on these issues, grounded in a novel view of what it means to create a will or trust. Courts and scholars think of testation in one of three ways: as the exercise of a property right, as a contract between the owner and the executor or trustee, or as the creation of a corporation that administers the corpus. I argue that these perspectives omit something important. Testators and settlors do not merely arrange for their possessions to be managed and distributed after they die. They also do something else: they make a statement. Testation is a form of speech.
For decades, scholars have described testation as the polar opposite: a legalistic ritual that stifles an owner's voice. After all, estate plans are written by attorneys, not testators or settlors. As a result, “even ideas initiated by the testator are transformed in the process of being ‘translated’ into legal terms.”  Similarly, testamentary instruments often seek to achieve impersonal goals like tax minimization, and are laced with alienating jargon, such as “per stirpes,” “marital deduction,” and “bypass trust.” Thus, commentators denounce them as “formal, standardized, and dull legal document [s]” that “manifest[] almost no individuality.”
 I see things differently. For one, testamentary self-expression can be apparent from the face of the will or trust. Consider Max Feinberg's “Jewish clause.” Was it an attempt to use his property to foist his views on his grandchildren? Of course. But it was also a ringing declaration of his core beliefs. If he had picketed city hall with a sign that announced his support of Jewish marriage, he would have engaged in political speech and thus invoked “the highest rung of the hierarchy of First Amendment values.”  To be sure, unlike the soapbox lecturer or street pamphleteer, Max spoke in a private venue, to a limited audience, with words that were refracted through his attorney's draftsmanship. Then again, just like the archetypal First Amendment speaker, Max inserted the “Jewish clause” because he cared deeply about an issue and wanted to influence others. In fact, because testation takes place against the backdrop of death and is the last word in a web of complex relationships, it is virtually impossible to convey a message with the same emphasis or emotional punch. Indeed, even an owner's distributional choices can be highly (albeit implicitly) expressive. Testators and settlors must divide everything they own among many potential beneficiaries in one sweeping gesture. By rewarding some people, snubbing others, and attaching conditions to their bequests, they offer a final assessment of their lives, their loved ones, and the world.
This descriptive account opens the door to several positive and normative claims. For one, contrary to the broad consensus that the Constitution only prohibits the government from abolishing testation completely, I argue that some wills-and-trusts rules fail First Amendment scrutiny. Specifically, the communicative impact of making a will or trust is most potent when a testator or settlor defies prevailing norms by leaving her estate to nonfamily members. However, the doctrine of undue influence imposes additional hurdles on precisely those bequests. Just as states must adjust their tort law to make room for free speech values, I contend that they can no longer isolate “unnatural” gifts for suspect status.
In addition, recognizing testation's expressive function militates against current efforts to narrow the scope of testamentary autonomy. The virtues of self-expression are well known: to speak is to exert power over the world. Yet “reforms” like a broad benefit-the-beneficiaries rule threaten testamentary self-expression. Thus, I argue that courts should construe this new doctrine narrowly. In addition, I challenge the UTC's practice of labeling anti-dead-hand measures as “mandatory.” I assert that, in close cases, judges should continue to do what they have traditionally done: enforce a distinctive component of an estate plan when it reflects a testator's or settlor's deep-seated beliefs.
Throughout the Article, I acknowledge a formidable counterargument: limits on testamentary freedom do not prevent owners from expressing themselves in their dispositive instruments. Indeed, a testator or settlor has spoken even if a court overrides her wishes. I respond by showing that the ultimate distribution of a decedent's property and testamentary self-expression are more tightly entwined than they first seem. Most importantly, when a court invalidates a bequest to a nonrelative under the undue influence doctrine, it does something unique in the context of the First Amendment: it concludes that a highly personal communication was, in fact, coerced. Because a decedent cannot set the record straight, there is no difference between determining that she did not mean to say something and barring her from speaking at all. Moreover, even doctrines like the benefit-the-beneficiaries rule--which do not deny the authenticity of speech but merely seek to avoid economic waste--diminish testamentary self-expression by pushing settlors toward other, less communicative ways of achieving their goals.
The Article contains three parts. Part I describes the orthodox views of testation: that it is the exercise of a property right, a contract-like conveyance, or the creation of a corporate-style entity. Part II argues that testation is also a singular form of speech. It explains that the ritual contains both explicit and implicit communicative elements, as well as strands of “pure” speech and expressive conduct. Part III claims that wills-and-trusts law must make room for testation's expressive function. It first contends that the idea that bequests to nonrelatives are inherently suspicious--which animates the common law test for undue influence and a novel California statute--cannot be squared with the First Amendment. Then, focusing largely on trust law, it asserts that even when the First Amendment does not apply, the fact that a bequest is expressive should affect a court's decision about whether to enforce it.



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