Incomplete wills.

• Author: Hirsch, Adam J.
• Position: II. Redefinitive Wills A. Negative Wills 2. Ancillary Issues through Conclusion, with footnotes, p. 1446-1480

2. Ancillary Issues

   1. Global Disinheritance

      In the course of reforming the law of negative wills, states and model lawmakers have had to address a number of additional issues. One of these is the treatment of disinheriting provisions that apply not to discrete heirs but to all heirs: "I have intentionally omitted the names of any of my relatives from this ... will," (108) or words to that effect. In such a case, enforcing a negative will in the event of a partial intestacy would cause a portion of the estate to escheat to the state.

      Neither the Uniform Probate Code nor the Restatement distinguishes global from discrete negative wills. (109) From the beginning, though, British courts electing to give effect to negative wills carved out an exception for those resulting in an escheat, which the courts invalidated. Hence, "by making the declaration of exclusion ... too extensive, it becomes inoperative." (110) One American court, construing a South Dakota statute authorizing negative wills, held that the statute--although based on the Uniform Probate Code--implicitly incorporated the British exception nullifying global negative wills. (111) The Code's Reporter subsequently challenged this reading as "unfortunate[]" (112) and, in his dual capacity as Reporter for the Restatement, he added language calling for the enforcement of a global negative will. (113) More recent cases applying negative will statutes in Colorado and Nevada have now taken that approach, enforcing negative wills that operated to disinherit all heirs apart from named beneficiaries. (114) One of these holdings remains dependent on whether a partial intestacy ensues under the terms of a future interest created by the will. (115) In the other case, where the negative will took effect at once, the court declared that the testator's $3 million estate had escheated to the state, citing the Restatement's contention that global negative wills should operate no differently from those covering discrete heirs? (116)

      From a policy perspective, we have cause to doubt whether scrupulous observance of global negative wills would likely correspond with testamentary intent. Clauses of this sort often look suspiciously like ones designed to avoid the application of a pretermitted child statute, as opposed to the intestacy statute. They may well reflect artless drafting, misstating intent. (117) To the extent that the author of a global negative will did truly aim to exclude all heirs, and not just nonmarital descendants, it stands to reason that the provision ordinarily traces to feelings of hostility--what else could inspire a testator to disinherit all of her relations? (118) Nevertheless, like other emotions, hostility is not unqualified; people experience gradations of hostility. As it diminishes, hostility shades into indifference, a phenomenon perceptible within negative wills. Some global negative wills have stemmed from little more than genealogical distance or from the absence of social interaction, as opposed to overt conflict: "I ... have no relatives who are more closely related to me than those of first cousins. I do not feel any particular affection for any of [them].... nor do I feel that any of them is entitled to be the recipient of any of my bounty...." (119) A testator's reluctance to provide for such heirs is understandable. Still, when presented with a choice between leaving property to them or to the state, via the doctrine of escheat, when a will proves incomplete, how many testators would prefer to let stand a global negative will? Even in the presence of hostility, one court regarded such a preference as "bizarre." (120) We cannot dismiss out of hand the possibility that the animosities of some testators run that deep, and for that reason lawmakers should not invalidate global negative wills as a matter of law. But given their draconian consequences, global negative wills should be viewed with a skeptical eye. Reflecting that skepticism, lawmakers should create a rebuttable presumption that a testator intends to withdraw a global negative will in the event of an (unanticipated) partial intestacy, whatever presumption they otherwise apply to negative wills covering discrete heirs.

   2. Construction

      Then there is the matter of textual construction. Both the Uniform Probate Code and the Restatement acknowledge that the language of negative wills can take many forms. (121) Nevertheless, under both the Code and the Restatement, a court can enforce a negative will only if it appears "expressly" in a testamentary instrument; (122) a court cannot find a negative will by implication.

      This limitation appears too rigid to effectuate intent. Particularly when presented with estate plans drafted by laypersons, courts need a free hand to construe clumsy language more flexibly. A recent case applying a negative will statute based on the Uniform Probate Code illustrates the problem: a testator disinherited "[a]ll of my heirs not mentioned in this will." (123) The testator's sole heir under the intestacy statute was his spouse, whom the will did mention--but only by way of noting that the testator had filed for divorce from her, presumably to explain why the testator left her nothing under the will. (124) The court acknowledged that this language "creat[es] uncertainty" about whether the testator intended to exclude his spouse under the negative will. (125) Nevertheless, the Code's strict form of negative will statute "requires express language, not just uncertainty," to disinherit an heir. (126) The spouse was permitted to take under the intestacy statute, despite the testator's insinuation that he intended--perhaps more adamantly than with regard to any other relative--to disinherit her. (127)

      Limiting wills raise similar construction problems. Under the Code and the Restatement, a bequest of "$50 ... and no more" disqualifies the beneficiary as an heir by partial intestacy; but "[w]ithout the phrase 'and no more,' the provision would not prevent [the beneficiary] from taking his intestate share." (128) In the first instance, the limiting will is express; in the second, it is not.

      Once again, this approach is too literal to capture imperfect expressions of intent by lay drafters. Of course, if a testator bequeaths a substantial but specified sum, indicative of a benevolent intent, without including the phrase "and no more," no inference of intent to limit the beneficiary's inheritance in the event of a partial intestacy would be warranted. (129) But if a testator bequeaths a nominal sum to a beneficiary--a few dollars or, proverbially, a single dollar--then tacking on the phrase "and no more" appears redundant. From the beginning, courts faced with nominal bequests have interpreted them as attempts in common discourse to create negative wills, whether or not valid under state law. (130) Such a provision appears "not as a bequest, but as a token of disinheritance," (131) as defined "by well-known custom and connotation." (132) In some instances, wills including nominal bequests have gone on to spell out the testator's hostility toward the nominal beneficiary in no uncertain terms, and the formula itself seems almost to breathe resentment--adding insult to penury. (133) To deny that nominal bequests qualify as negative wills because they lack express words of disinheritance is to ignore this idiomatic reality.

      To be sure, the distinction between a nominal and substantial bequest is one of degree, and where along the continuum of ascending bequests the implication of disinheritance disappears remains vague. (134) But vagueness does not render a rule unworkable--it simply turns it into a standard applied with greater latitude. (135) Courts have discretion to find negative wills as an implicit attribute of nominal bequests under nonuniform negative will statutes, none of which requires a testator to employ express language of disinheritance. (136) The Code and the Restatement alone see fit to impose a stricter rule of construction.

   3. Devolution

      What alternative devolution ensues from enforcing a negative will? Under both the Uniform Probate Code's statutory rule and the Restatement's proposed judicial rule, disinherited heirs are treated as if they disclaimed their intestate shares; hence, they take nothing, apart from any capped bequest granted them under a limiting will. (137) At the same time, under the law of disclaimers, any surviving descendants of disinherited heirs ordinarily take in their place, succeeding to their shares of the partially intestate estate. (138)

      Neither the Code nor the Restatement spells out the rationale for this rule, and we need to consider whether it is likely to correspond with the intent of the typical testator. Under the law of intestacy, when an heir (other than the decedent's spouse) predeceases the decedent, her descendants inherit in her shoes by right of "representation," under the theory that a decedent's social bonds to heirs extend to family members of lower generations. Heirs of the higher generation supersede lower ones because decedents expect heirs to provide for their descendants in turn; but if heirs are unavailable to take, their descendants replace them in the eyes of the typical decedent. (139) The question raised here is whether the opposite also holds true: In other words, if a decedent disinherits an heir, would the decedent's expression of negative intent extend to that heir's descendants, by virtue of their close association?

      On the one hand, we might assume that if a testator wished to disinherit the descendants of heirs, she could convey that intent expressly, by expanding the scope of the negative will: "My child, A, and A's descendants, are to take no part of my estate." (140) In that event, both A and A's descendants are treated as if they disclaimed, reallocating the partially intestate estate to other lines of children, if any, or to collateral relatives. On the other hand, when...