Incomplete Dispositions

Washington and Lee Law Review Online Volume 73 | Issue 1 Article 8 7-16-2016 Incomplete Dispositions Naomi Cahn George Washington University Law School Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr-online Part of the Estates and Trusts Commons Recommended Citation Naomi Cahn, Incomplete Dispositions, 73 Wash. & Lee L. Rev. Online 259 (2016), https://scholarlycommons.law.wlu.edu/wlulronline/vol73/iss1/8 This Response is brought to you for free and open access by the Law School Journals at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review Online by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact . Incomplete Dispositions Naomi Cahn* Abstract In Irresolute Testators, Professor Jane Baron provocatively suggests the existence of two distinct types of testators: the rational, autonomous testator who has made deliberate choices about the contents of her will and whose errors, if any, are minor; and the more vulnerable, less resolute testator who may not have actually made the final decisions enshrined in a formal will. To illustrate how these testators appear in wills law, she analyzes how courts apply the doctrines of harmless error and mistake reformation. While the two doctrines appear to be intended to help the resolute testator, courts instead, she suggests, also apply the doctrines to help the irresolute testator. In causing us to reflect on the distinctions between dispository intent and a formal writing recognizable as a final statement, on rational and boundedly rational testators, on final and almost-final declarations, her article focuses us on the art of line-drawing in wills law. In this commentary, I explore another context that similarly raises issues about testators whose final intent is not clearly expressed: when can a disappointed beneficiary sue the drafting attorney for malpractice? The doctrine of privity confronts the spectre of the irresolute or inconclusive testator, yet courts have developed some dividing lines that differ from those they have developed surrounding harmless error. Privity seems to offer another illustration of how bright-line rules do not necessarily achieve dispository intent, although the privity rules do achieve certainty on only allowing final dispository statements (that are incomplete or show a lack of resolution) to provide a basis for a malpractice action. This commentary applauds Professor Baron’s achievement in focusing us on the limits of the wills reform doctrines and the significance of accounting for different types of testators. * Harold H. Greene Professor of Law, George Washington University Law School. Thanks to Jane Baron for her engagement with this comment. 259 260 73 WASH. & LEE L. REV. ONLINE 259 (2016) In Irresolute Testators,1 Professor Baron raises a series of fascinating issues about seemingly progressive developments in wills law. I am honored to have this opportunity to respond to her masterful, thoughtful, and thought-provoking article. Irresolute Testators adds a much-needed—and contrary—layer to the conventional story of wills reform doctrine, providing an analysis of relevant statutory interpretation and court decisions. In doing so, it tells numerous complex stories that explore the more fundamental constraints on potential changes to wills doctrine and builds on Professor Baron’s extraordinary earlier works.2 Reformers, scholars, and practitioners both within and outside of the trusts and estates field can learn much from this rich and detailed account of the possibilities and limits of reforming wills law. First, she suggests that the movement of progress in wills doctrine—exemplified by the developments of substantial compliance, mistake, and harmless error—do not, theoretically, go quite as far as courts have taken the doctrines in practice. These reforms, codified in statutes and written in the Restatement, are designed to complement the goals of the Wills Act, that is, recognition of a reliable writing3 that represents the decedent’s “finalized testamentary intent”4 created by the rational testator. They seek to assess whether the alleged writing sought to be probated is, in fact, a “will”5 by excusing fairly 1. Jane B. Baron, Irresolute Testators, Clear and Convincing Wills Law, 73 WASH. & LEE L. REV. 1 (2016). 2. E.g., Jane B. Baron, Empathy, Subjectivity, and Testamentary Capacity, 24 SAN DIEGO L. REV. 1043, 1055 (1987) (discussing the “insane delusion” principle in wills law); Jane B. Baron, Gifts, Bargains, and Form, 64 IND. LJ. 155, 202 (1989) (describing wills law as anachronistic); Jane B. Baron, Resistance to Stories, 67 S. CAL. L. REV. 255, 268 (1994) (noting the importance of storytelling in critiquing objectivity). 3. The definition of a writing is, actually, ambiguous. See, e.g., NEV. REV. STAT. ANN. §§ 132.119, 136.185 (allowing for electronic wills) (2016); In re Estate of Javier Castro, No. 2013ES00140 (Lorain Cnty. Ohio Ct. Com. Pl. June 19, 2013) (permitting probate of an electronic will pursuant to the Ohio version of the harmless error rule—OHIO REV. CODE ANN. § 2107.24 (2016)); Anthony R. La Ratta & Melissa B. Osorio, What’s in A Name? Writings Intended As Wills, 28 PROB. & PROP. 47, 50 (2014) (“The type of writing necessary to create a valid will is evolving.”). 4. Baron, supra note 1, at 8. 5. “[T]he will execution reform permits investigation of a testator’s intent that a document serve as a will, not the testator’s dispositive intent.” Baron, INCOMPLETE DISPOSITIONS 261 technical requirements. Accordingly, the article focuses on whether the heightened evidentiary standard of proving defects by clear and convincing evidence actually serves as the limit the drafters anticipated on use of the reform doctrines.6 This leads to a second, and related, point: she draws a distinction between whether a document is, indeed, a will rather than simply an expression of the decedent’s intent for what should, eventually, be included in a will.7 The reforms are designed to address the decedent’s “fixed intent, and address only the problem of inadvertent errors in setting out those wishes.”8 In interpreting the reform doctrines, she argues, courts may “find it difficult to stay within the limits” contemplated by the reforms.9 Instead, they inquire into whether the writing establishes the decedent’s intent, even though the writings’ noncompliance with conventional Wills Act rules goes far beyond the technical problems and—under appropriate interpretation of the savings doctrines—might not actually qualify as wills. Finally, and most critically, she suggests that wills law faces an inherent contradiction: it posits a rational testator who is protected by the reform doctrines, but the law also recognizes the existence of a more emotionally vulnerable, less definitive testator who is not exp (...truncated)