Saturday, September 28, 2013
Mark Glover (University of Wyoming College of Law) recently published an article entitled, Rethinking the Testamentary Capacity of Minors, Wills, Trusts, & Estates Law eJournal, Vol. 9, No. 26 (Sept. 26, 2013). Provided below is the abstract from SSRN:
Minors lack the legal capacity to execute wills. Subject to limited exceptions in some states, a will executed by a child is void. Because this testamentary age requirement conflicts with the primary objective of the law of wills, which is to allow decedents to freely choose how their estates will be distributed, this rule should be founded upon a coherent and compelling policy rationale. Nonetheless, it is not.
Three potential rationales might explain the testamentary incapacity of minors. First, the age requirement could represent a categorical capacity threshold that is aimed at protecting children from their immaturity and indiscretion. Second, the age requirement could be seen as a proxy for the minimum mental competency that the law requires of all testators. Finally, the age requirement could implement forced parental inheritance, under which the estates of minors are funneled into intestacy and are distributed to their parents.
This article explains how each of these potential rationales fails to adequately align with the mechanics of the current testamentary age requirement. The article ultimately calls for the elimination of the categorical age restriction on testamentary capacity. It also proposes additional reforms that would better serve the policy objectives of the testamentary age restriction but that would allow children to more frequently execute wills.