Thursday, March 8, 2012
Irene D. Johnson (Professor of Law, Pace University School of Law) recently published her article entitled There's a Will, But No Way--Whatever Happened to the Doctrine of Testamentary Freedom and What Can (Should) We Do To Restore It?, 4 Est. Plan. & Community Prop. L.J. 105 (Fall 2011). An excerpt from that article is below:
In theory, after observing statutory limitations, the doctrine of testamentary freedom should allow testators to have the freedom to dispose of whatever property is left in any manner they choose. However, this is hardly the case. Courts and juries seem loathe to uphold plans that do not dispose of the leftover property to "the natural objects of the testator's bounty"--the testator's closest family members. One begins to wonder why he should write a will at all. After all, the default estate plan, the one in place if the decedent has not produced a legally effective will, is intestacy--a statutory plan by which the decedent's probate estate is distributed to the decedent's closest relatives. Such intestate succession plans are arguably based on the plan that an intestate decedent would have wanted had he written a will. While commentators and studies have taken this presumption to task, arguing that most intestacy plans do not necessary comport with what a decedent would have wanted, and while such plans probably are based, in part, on the desire of the state to keep the decedent's family members from becoming a burden on the state's resources, intestate succession statutes do provide a plan that makes sense in many cases. At least one commentator argues that these statutes should be amended to provided for more latitude in order to allow a court to take into consideration the particular circumstances of the decedent.
It is the purpose of this article to examine the current problems surrounding the issue of freedom of testation, to enumerate and evaluate various suggestions that have been proposed for the elimination of these problems, and to propose this writer's suggestion for the restoration of freedom of testation to those who wish to propound non-traditional estate plans. Part I examines, in some detail, the ways in which courts and juries have stymied the exercise of freedom of testation. Part II is devoted to the different suggestions that commentators have put forth for the protection of the non-traditional estate plan. Part III examines the writer's reasons that testators might propose estate plans that do not comport with social norms and addresses the question of whether testamentary freedom should be preserved as a "favored doctrine." Part IV contains the writer's own proposed solution to this problem.