My friend Alex Boni-Saenz has an article on "Distributive Justice and Donative Intent," forthcoming in UCLA Law Review. Cribbing now from his abstract:
The inheritance system is beset by formalism. Probate courts reject wills on technicalities and refuse to correct obvious drafting mistakes by testators. These doctrines lead to donative errors, or outcomes that are not in line with the decedent’s donative intent. While scholars and reformers have critiqued the intent-defeating effects of formalism in the past, none have examined the resulting distribution of donative errors and connected it to broader social and economic inequalities. Drawing on egalitarian theories of distributive justice, this Article develops a novel critique of formalism in the inheritance law context. The central normative claim is that formalistic wills doctrines should be reformed because they create unjustified inequalities in the distribution of donative errors. In other words, probate formalism harms those who attempt to engage in estate planning without specialized legal knowledge or the economic resources to hire an attorney. By highlighting these distributive concerns, this Article reorients inheritance law scholarship to the needs of the middle class and crystallizes distributive arguments for reformers of the probate system.
As always with Alex's work, I admire this article. To be clear, I'm a big fan of reducing formalism -- and especially allowing holographic wills and reformation of wills (and trusts) to correct for clear error or to dispense with technical requirements of attestation (which would solve the problem with the case Alex uses at the start of the article). I think those of us who want a retreat from formalism are going to face high hurdles from the trusts and estates bar -- at least that's been my experience in North Carolina. But I want to pick up on some themes here, because some of my concern with formalism in probate is different from Alex's. While I'm not fan of formalism in legal history, I sometimes wonder if the formalism serves a positive purpose by defeating documents that should be defeated, even if there isn't enough evidence to defeat the document through traditional doctrines such as undue influence or lack of capacity. While in some places formalism causes us to probate a will that was poorly drafted (and that is inconsistent with testator's clear intent), but in some cases perhaps formalism defeats an improperly executed will that was the product of undue influence, even though we can't prove undue influence. If anything, maybe we need more formalism. How's that for a controversial statement! Formalism frequently cases a retreat to intestacy. That, of course, makes it imperative that we have an intestacy regime that makes sense -- and on this Deborah Gordon and I will have something to say in the not-too-distant future.
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