Friday, June 16, 2017
Article on Everybody Dies. Or, A Consideration of Simultaneous Death Statutes and the Struggles of the Self-Represented
Victoria J. Haneman recently published an Article entitled, Everybody Dies. Or, A Consideration of Simultaneous Death Statutes and the Struggles of the Self-Represented, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:
The access to justice problem has been the cause célèbre of the social justice movement in the United States for many years, with calls for the legal community to support legal services programs and contribute pro bono hours. The stark reality is that while sixty-one million people are potentially eligible to receive legal aid, most will find themselves unassisted when need arises. Sadly, however, the access to justice problem in this country reaches beyond the poorest and most disadvantaged. Working-class and middle-income individuals are ineligible for legal services programs but often find themselves unable to afford standard attorney rates. This forces a significant portion of the population to either ignore legal issues or take resolve matters on their own. Those who need representation to avoid the foreclosure of their homes or the loss of parental rights will need to navigate a complicated system on their own.
There is consensus that the need for affordable legal services far outstrips access to affordable legal services, and the rising number of self-represented individuals burdens the system. The greatest impact is arguably felt in the probate, family and housing court systems. There is not, however, consensus as concerns the best way in which to meaningfully address the issue. Dissonance also exists as as to the best ways in which to meaningfully offer assistance and allocate limited resources to the underrepresented and unrepresented.
While access to information through technology should allow basic legal issues to be resolved in an efficient and predictable manner, the reality is that the complexity of the system interferes. It is a system designed to accommodate the represented. To this end, an overarching purpose of this Article is to explore the idea of revising probate statutes to protect the self-represented from an obvious pitfall, especially when and where it is clear that the underrepresented and unrepresented are going to imminently fall into the pit. In the context of estate planning, this Article will frame the discussion within the context of an obvious flaw that presently exists in states that allow holographic wills: protection of the layperson from simultaneous or closely proximate death scenarios.