Article: Executor Discretion

James Toomey (Elisabeth Haub School of Law at Pace University) recently published, Executor Discretion, 2024. Provided below is an Abstract:

The fundamental purpose of the law of wills is to distribute an owner’s property according to their intent. When a will is implemented, despite no longer reflecting the intent of the person who wrote it, the law fails at this purpose. As the average age of wills at death has increased, families and wealth have become more fluid, and a growing number of people live for a long time without the mental capacity to change their will, this happens all the time. But the enthusiastic reforms in wills law of the past half-century have largely ignored the problem.

This Article discusses a possible drafting solution to the challenge of expired intents in wills law. A testator might, after laying out a specific estate plan, include a clause granting their executor discretion to make adjustments reflecting the testator’s most recent intent. As bounded discretion offers flexibility in many legal contexts, an “executor discretion clause” along these lines might help better implement the intent of the testator at the time of their death.

Notwithstanding potential challenges sounding in compliance with the Wills Act and indefinite standing, executor discretion clauses are enforceable, or should be with modest doctrinal changes. And while implementing them raises new difficulties and concerns about abuse these issues are hardly insurmountable—the familiar doctrine of substituted judgment can cabin executor discretion, subject to challenge by those injured by its exercise, against a presumption of validity in executor decisions.