Incomplete wills.

• Author: Hirsch, Adam J.
• Position: Introduction through II. Redefinitive Wills A. Negative Wills 1. Analysis, p. 1423-1446

This Article explores the problems that arise when a will fails to dispose of an individual's entire estate, so that she dies partially testate and partially intestate. The questions then raised include (1) whether provisions contained in the will purporting to redefine the individual's intestate heirs should supersede the statutory designations of those heirs, (2) whether inter vivos gifts to heirs should qualify as advancements on the inheritances of those heirs under conditions of partial intestacy, and, most broadly, (3) whether courts should fill in the incomplete portion of an individual's estate plan by extrapolating from the distributive preferences set out in the fragmentary will or by independent reference to the statutory rules of intestacy. The intent of testators is bound to vary on each of these points, this Article argues. In order to account for this predictable variation, lawmakers should grant courts limited discretion to resolve each of these issues on a case-by-case basis, taking into consideration both intrinsic and extrinsic evidence. Such an approach would differentiate the rules of partial intestacy from complete intestacy, which operates according to mechanical rules. This Article suggests policy reasons for drawing that distinction. The Article supports its analysis with empirical evidence drawn from data sets of published cases, a resource not previously exploited in connection with quantitative studies of inheritance law.

TABLE OF CONTENTS INTRODUCTION I. THEORETICAL PROLOGUE A. The Object B. The Methodology II. REDEFINITIVE WILLS A. Negative Wills 1. Analysis 2. Ancillary Issues 3. Estate Planning Gimmickry B. "Positive" Wills III. GIFTS AND INCOMPLETE WILLS IV. DISTRIBUTIVE RULES OF PARTIAL INTESTACY A. Existing Deviations B. Proposed Deviations 1. Lapse 2. No Residuary 3. Empirical Evidence C. The Structure of Intestacy Law CONCLUSION INTRODUCTION

Anticipating the end of economic life, a will should leave no stone unturned and no property unaccounted for. One way or another, everything previously owned by a deceased person is going to pass into someone else's hands. The textual device for ensuring completeness of wills is a residuary clause. After making discrete provisions for individual beneficiaries (if desired), a testator concludes with an inclusive bequest: "All the rest of my estate goes to A." The dimensions of such a clause expand or contract as the testator accumulates or dissipates assets, covering whatever remains once all other bequests have been satisfied--no more and no less.

The problem arises that, every so often, testators fail to construct their wills in a manner producing a complete estate plan. (1) Some neglect to include an elastic residuary clause in their wills. Others include one that is itself incomplete: it may subdivide the residue into fractions that fall short of bequeathing the whole estate, (2) or the clause may create only one or more life estates, leaving unspecified the disposition of the remainder of the residue. (3) Still other testators create residuary bequests that prove ineffective for one reason or another. (4) In any such instance, the will becomes fragmentary, disposing of some, but not the sum, of the testator's property.

When that happens, law must step in where the testator left off. Of course, the same is also true if a person executes no will at all. In that event, statutory law crafts an estate plan for the intestate decedent, determining the heirs and their shares according to a schedule of contingencies. Although the schedule that applies in any given state varies, rules of intestacy are universally designed to operate mechanically. (5)

If a testator executes a will but leaves it incomplete, a so-called partial intestacy occurs: a decedent can be simultaneously testate (in part), and intestate (in part). Considered structurally, though, the problem of partial intestacy differs from "complete" intestacy, in that the author of an incomplete will has at least revealed something about her preferences in an executed writing. As a matter of policy, the key question is whether courts should have leave to consider testamentary context when confronted with an incomplete estate plan. Should lawmakers treat the stated terms of a will and the blank spaces that remain as isolated elements, filling in the blank spaces as if there were no will at all--that is, by recourse to the regular rules of intestacy? Or should lawmakers instead deem the terms of an incomplete will as relevant to the process of supplying the missing terms?

This problem arises with some regularity. Professor Sayre remarked in 1929 that "[e]ven a cursory examination of the current digests will disclose the large number of cases involving partial intestacy which appear in the reports every year," (6) and that observation remains no less true today. (7) Yet, the topic by and large has escaped notice by scholars. Until now, not a single work has perused the problem as a theoretical whole, and hardly any studies have addressed even bits of it. The instant study endeavors to fill this void. In Part I, I reflect briefly on the characteristics of the problem and on the analytical tools with which I shall probe it, including an empirical methodology not previously applied in any inheritance study. I then proceed to the substantive issues at hand. In Part II, I consider the implications of provisions in a will that ostensibly speak to the division of the intestate portion of the estate--provisions disinheriting heirs, for example. I turn next, in Part III, to the interplay of gifts and partial intestacy--to wit, should inter vivos transfers to an heir diminish her eventual share by right of partial intestacy under the same rules that apply to complete intestacy? Finally, in Part IV, I examine the larger question, potentially subsuming the previous Parts, of whether a will that says nothing pertinent to a partial intestacy should nevertheless serve as a template for the disposition of property not covered by the terms of that will. My thesis, elaborated in the pages following, is that no mechanical approach to any of these issues produces an appropriate result in all instances. Therefore, I will make the case for allowing courts greater latitude to effectuate intent in instances of partial intestacy than when presented with a complete intestacy.

1. THEORETICAL PROLOGUE

   1. The Object

      Wills are exercises in freedom of testation. When testators create an incomplete estate plan, they fail to take full advantage of the freedom they enjoy. What policy ends should lawmakers strive to accomplish under such conditions? Orthodox default-rule theory dictates that when a citizen fails to execute a will, lawmakers should give effect to whatever distributive scheme they expect the citizen would prefer, given her circumstances. By doing so, lawmakers enable citizens to rely on the estate plan provided by the intestacy statute and thereby avoid the transaction cost of executing a will. (8)

      This analysis breaks down in connection with an incomplete will. In essence, estate planning represents an all-or-nothing proposition. One cannot reduce the marginal cost of this endeavor by engaging an attorney scrivener to plan for fewer assets, leaving the rest to flow under the rules of intestacy. Because the dimensions of a will do not affect its cost, estate planners take pains to ensure that the wills they draft are all-inclusive as a matter of course. Hence, wills are hardly ever incomplete by design. (9) Incompleteness typically stems from planning errors, often encountered in wills produced by lay drafters. (10) Transaction-cost efficiency offers no justification for attention to probable intent in this context.

      Still, we can justify an intent-focused policy in connection with incomplete wills on other grounds. Because incompleteness comprises a problem that mainly plagues homemade wills, it is one largely confined to testators of lesser means. Economics aside, by effectuating probable intent, lawmakers extend to less fortunate testators who do their own drafting the advantages enjoyed by more affluent ones who can afford to pay for a professional product. Lawmakers thereby heed the principle of "equal planning under the law," a policy norm with divers and diverse applications in the inheritance realm. (11) Both judicial opinions and academic commentary have traditionally emphasized intent-effectuation in other doctrinal regions of the field, such as the construction of wills. (12) The mere absence of efficiency concerns at this juncture provides no affirmative justification for deviating from inheritance law's central policy.

   2. The Methodology

      That said, how can lawmakers gain insight into the probable preferences of a decedent who fails to elaborate her wishes under the terms of a will? In some number of situations, we may be able to make logical inferences about intent. Judicial opinions occasionally venture such deductions. (13) Ultimately, though, probable intent is both a function of, and revealed by, statistics. To answer statistical questions, we need data. Yet the sources of data open to study shrink alarmingly once we shift our...