Wednesday, September 20, 2017
Doron Menashe Sr. recently posted an Article entitled, Relaxed Formalism: The Validation of Flawed Wills, Wills, Trusts, & Estate Law eJournal. Provided below is an abstract of the Article:
Section 25 of the Succession Law, 19651 authorizes the courts to validate flawed wills if certain “fundamental elements” of the will are present and the court has no doubt that the will “represents the true and free wishes of the testator.” This Paper attempts to explore the meaning and implications of the statutory burden of proof set by Section 25. The section was amended in such a manner as to end case law disputes, arising over the years, regarding the character of flaws which may be overcome through the use of this burden. Such flaws had been known as “dynamic elements,” as opposed to flaws which are so constitutive as to preclude the use of Section 25.
In Part II, I briefly present background regarding the conceptual and normative framework in which probate law functions. In Part III, I discuss Section 25’s role within the Succession Law and in the general framework of inheritance law; I will also examine the interpretation of Section 25 in the Supreme Court case law. According to this interpretation, judicial examination must determine beyond any doubt that the will, though flawed, expresses the free and true wishes of the testator. I criticize the approach taken by the Supreme Court. Its interpretation, even if practicable, seems to lay an unbearable burden on the party wishing to validate the will, and is at odds with the objective of the Succession Law in general and of Section 25 in particular: realization, to the extent possible, of the testator’s wishes. In Part IV, I delineate a general theory of the “wishes” protected by and based in the Succession Law. In Part V I use this theory to develop a model for the analysis of the burden of proof set by Section 25. I do this using disutility equations based on classic considerations in decision-making under conditions of uncertainty; my conclusion is that the burden of proof currently imposed by courts on a beneficiary seeking to validate a flawed will is considerably stricter than it should ideally be.
Finally, I summarize, and touch on “heretical” doubts as to whether the realization of the testator’s wishes can indeed be established as the logical base of inheritance law.
Special thanks to Robert H. Sitkoff (John L. Gray Professor of Law, Harvard Law School) for bringing this article to my attention.