Sunday, May 4, 2014
Margaret Ryznar (Associate Professor of Law at Indiana University Robert H. McKinney School of Law) & Angelique Devaux (French Licensed Attorney (Diplômée Notaire)) recently published an article entitled, Au Revoir, Will Contests: Comparative Lessons for Preventing Will Contests, 14 Nev. L.J. 1 (Fall 2013). Provided below is their introduction:
Despite the continuous evolution of American probate law, will contests remain common and there is no assurance that a will, once executed, will ultimately be upheld. In fact, it is not clear that will contests have even been effectively minimized. The most common grounds for will contests are undue influence, testamentary capacity, and fraud, allegations of which invalidate many wills today. Such contests have significant costs, which include the failure to give effect to the testator's intent, high litigation and decision costs, and the use of limited judicial resources. As a result, one of the most significant challenges in American probate law is the frequent inability to honor testamentary intent due to will contests brought by disgruntled relatives and friends.
In contrast, France's legal system has nearly eliminated will contests on the grounds of undue influence and fraud. In French wills law, very few cases arise involving litigation of the validity of a will, and, of those that do, all concern issues of conformity with formalities rather than lack of capacity, fraud, or undue influence. While France is currently addressing other issues in its wills law, those related to will contests have largely been resolved.
In general, French wills law is far more dynamic in comparison to its American counterpart, largely due to the influence of those who draft wills, known as notaires. Notaires raise substantive legal issues at annual conventions arising from their work with clients, contributing to the development of the law. This process has contributed to the near elimination of will contests based on fraud and duress.
The introduction of a separate system of professionals like the notaires would be difficult given the role of American attorneys and the federalist system that facilitates the development of state wills law. Nevertheless, there are several key elements of the French system that could be introduced to decrease the number of American will contests. These insights can provide guidance for the states to improve their wills law.
In exploring how the American probate system could benefit from certain aspects of its French counterpart, Part II of this article addresses the current American law that facilitates will contests despite efforts to prevent them. Part III analyzes France's more successful efforts to prevent will contests. Finally, Part IV considers the lessons from a comparative analysis of American and French wills law for the prevention of will contests.