Tuesday, March 14, 2017
Iris J. Goodwin recently published an Article entitled, Access to Justice: What to Do About the Law of Wills, 2016 Wis. L. Rev. 947. Provided below is an abstract of the Article:
Part I of this Article places the online, do-it-yourself will in the context of the push to enlarge access to justice for people of poor or moderate means in civil law matters. Part I has three subsections. The first of these subsections examines the recent movement to expand pro se representation where sundry civil law rights are concerned. The second subsection explores the significance of pro se opportunities in non-litigious circumstances such as estate planning. The third subsection considers what might be at stake for the poor and middle class in the right to dispose of property at death. Part II treats the online, do-it-yourself will and its tenuous position in the current law of wills. Part III makes the case that the online, do-it-yourself will is not so clearly an attested will but is a hybrid, with attributes of a holographic instrument also. This insight sets the stage for the later argument that an exception in the law with respect to the rigorous treatment of legal language--a kind of interpretive generosity--previously extended to the holographic will is appropriately applied to this newer vehicle created via self-help. Part IV sets out the rigorous standards for execution that any will--lay-drawn or otherwise--must surmount. This Part examines both the historic requirements for execution (many of which are still in play in some states) and recent reforms, building to the observation that the attested will and the holographic one, even though each is predicated upon a distinct legal ethos, are starting to merge. This observation invites use of standards heretofore applicable to the holographic will (standards like interpretive generosity) to the attested (or hybrid). Part V leaves behind the rigors for executing a will and turns to the other legal challenge for the person who would create a will without assistance of counsel--the canons of construction for testamentary language. If the rigors of execution have begun to ameliorate, the standards for interpreting legal language are still robust. Part VI examines interpretive largess as it has been applied to holographic wills and suggests that it be extended to the online, do-it-yourself will. Part VII acknowledges the potential that an expanded use of interpretive largess could have on the law of future interests and suggests ways to cabin it by embedding its application in a rigorous methodology and then limiting its application.