Thursday, April 9, 2015
David Horton (University of California, Davis School of Law) recently published an article entitled, Wills Law on the Ground, UCLA Law Review, Vol. 62, 2015 Forthcoming. Kerry Ryan reviewed the article, a portion of which is provided below:
This article contains a fascinating study of a year in the life of a probate court in one California county. Professor Horton uses his data to examine the fit between existing wills doctrine (derived from the small number of disputed estates that become reported appellate decisions) and routinized probate administrations. In other words, how does wills law on the books compare to “Wills Law on the Ground”? Horton frames his analysis within the existing debate in the field between “formalists” (who favor strict compliance with wills act rules even if intent-defeating) and “functionalists” (who reject formalism for its own sake favoring an intent-serving-standards-based wills act). Most state lawmakers and judges sit squarely in the former category; whereas, the latter faction includes the brain trust behind the Restatement (Third) of Property: Wills (Restatement) and the Uniform Probate Code (UPC). Part I of Horton’s article aptly describes several areas in will execution (attestation, holographic wills, and harmless error) and will construction (ademption by extinction and antilapse) where the contrast between the two camps is most stark.
Part II describes Horton’s empirical methodology and reports the results. The study examined every probate administration in Alameda County, California (CA) from January 2008 to March 2009 relating to decedents dying in 2007.1 After discarding abandoned matters and those involving pour-over wills, the dataset consisted of 571 cases. Fifty-seven (57) percent of these decedents died with a will and 43 percent without. After providing descriptive statistics on testate versus intestate estates (cost, length, litigation, beneficiaries), Horton analyzes how the data informs the issues that drive a wedge between formalists and functionalists.
See Kerry Ryan, Law on the Books Meets Law in Action, Journal of Things We Like Lots, Apr. 7, 2015.