Saturday, June 14, 2014
Kathleen R. Guzman recently published an article entitled, Where Strict Meets Substantial: Oklahoma Standards For the Execution of a Will, 66 Okla. L. Rev. 543-614 (2014). Provided below is a portion of the introduction:
Oklahoma succession law dates back to the English Statute of Wills, first enacted in 1540. The relevant statute, imported from the Dakotas in the 1800s, remains in essentially identical form today. Especially where property is involved, some might say that the predictability afforded by such long-standing rules is key to an efficient, functional wealth transfer system. But any statutory scheme that exists in the twenty-first century yet originated in the sixteenth—when medieval overlords sought prayers from pious friars and “five days of fighting” from their knights—risks asymmetry between its provisions as enacted versus applied.
When history shifts and legal theory turns from function toward form, two simple statutory responses emerge: either do nothing (and thereby force behavior to continue to conform to the law) or do something by changing the law to match extant behavior. Optimally, all interested parties—from the legislators who make the law through the judges who enforce it—would engage the issues and agree (even if metaphorically) on next steps. The response of a court to a legislative pronouncement, and that of a legislature to a court’s, indirectly ensure that the conversations continue, limiting the instances in which old rules and new worlds collide. But things are rarely that direct, especially when distinct institutional actors are at cross purposes or when they do not always mean what they say.