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Texas Tech Univ. School of Law

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Friday, May 2, 2014

Article on Protecting Freedom of Testation

Legislation-regarding-private-information

Eike G. Hosemann (LL.M. (Harvard). Research Fellow, Max Planck Institute for Comparative and International Private Law, Hamburg, Germany) recently published an article entitled, Protecting Freedom of Testation: A Proposal for Law Reform, 47 U. Mich. J.L. Reform 419 (Winter 2014).  Provided below is the abstract:

This Article addresses a problem ever more pressing in wealthy and aging societies like the United States: interference with freedom of testation by the use of wrongful means such as undue influence or will forgery to acquire benefits through inheritance. A detailed analysis of the remedies against interference with freedom of testation under inheritance law, tort law, and equity reveals that there is currently a significant under-deterrence of this undesirable behavior. Hence, this Article proposes a new remedy in order to protect freedom of testation more effectively: a disinheritance statute barring wrongdoers that have infringed upon someone's freedom of testation from inheriting from their victims, not unlike the slayer statutes adopted by many state legislators in order to deal with “murdering heirs.” This statutory prohibition against inheritance in cases of interference with freedom of testation would do more than alleviate the identified under-deterrence problem. The proposed legislative reform would also conform with an important principle of American law: the idea that no one should profit from his wrongdoing. In addition, arguments in favour of the suggested proposal can be made by reference to the general trend towards a behavior-based inheritance regime and in view of the availability of similar rules in jurisdictions outside the United States.

http://lawprofessors.typepad.com/trusts_estates_prof/2014/05/article-on-protecting-freedom-of-testation.html

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Comments

Wouldn’t a statute that provides for the following provide a more effective deterrent

• Any financial or legal document, including a will, deed, trust, contract or POA, whose validity is challenged will be presumed to be invalid if there is credible evidence that it would have been exceptionally difficult for the subject executing the document to have studied the document due to a physical or mental impairment. Under such circumstances, this presumption will not be overturned if there is substantial evidence that
1) the subject’s impairment was exploited for financial gain or other personal benefit during the document’s drafting and/or execution, or
2) the probate code, professional codes of ethics, the Americans With Disabilities Act or other applicable rule of law was not fully complied with

• The person(s) who draft the document will be responsible for ensuring that the subject’s impairment is not exploited during the drafting of the document. If it is proved by a preponderance of the evidence that the subject’s impairment is exploited during the drafting of the document, then the drafter(s) of the document will be responsible for all costs incurred by all parties involved in any litigation which results from the drafting of the document.

• Similarly, the person(s) who present the document will be responsible for ensuring that the subject’s impairment is not exploited during the execution of the document. If it is proved by a preponderance of the evidence that the subject’s impairment was exploited during the document’s execution, then the document’s presenter(s) will be responsible for all costs incurred by all parties involved in any litigation which results from the document’s execution.

Posted by: Tom Fields | May 3, 2014 7:58:12 AM

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