My Will Be Done: Accommodating the Erring and the Atypical Testator

• Publication year: 2021

80 Nebraska L. Rev. 387. My Will Be Done: Accommodating the Erring and the Atypical Testator

387

Pamela R. Champine(fn*)

My Will Be Done: Accommodating the Erring and the Atypical Testator

TABLE OF CONTENTS

I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . 388 R
II. Discerning Testamentary Intent . . . . . . . . . . . . . . . 391 R
A. Alternative Approaches to Reformation . . . . . . . . . . 396 R
1. Historic Approach . . . . . . . . . . . . . . . . . . . 396 R
2. Fellows Approach . . . . . . . . . . . . . . . . . . . 402 R
3. Third Restatement Approach . . . . . . . . . . . . . . 403 R
B. Seven Classic Mistake Cases . . . . . . . . . . . . . . . 407 R
1. Case 1: The Crossed Will Execution-An Unequivocal Error . . . . . . . . . . . . . . . . . . . 408 R
2. Case 2: The Bequest Void at Execution-
Another Unequivocal Error . . . . . . . . . . . . . . . 410 R
3. Case 3: Tax Mistakes-Red Apples, Green
Apples, and Oranges . . . . . . . . . . . . . . . . . . 412 R
4. Case 4: The Scrivener's Error-Over-Reliance on
Drafters' Testimony. . . . . . . . . . . . . . . . . . 415 R
5. Case 5: Uniquely Compelling Circumstantial
Evidence-The Impotence of a Broad Standard
to Assure Relief . . . . . . . . . . . . . . . . . . . 417 R
6. Case 6: Undisposed of Property-The Power of
the Family Preference to Preclude Apparently
Justified Relief (and the Inefficacy of the Safe
Harbor to Preclude It). . . . . . . . . . . . . . . . 421 R
7. Case 7: Unanticipated Circumstances-The
Power of the Family Preference to Create the
Perception of Mistake (and the Inefficacy of the
Safe Harbor to Preclude It). . . . . . . . . . . . . . 422 R
III. Policy Implications . . . . . . . . . . . . . . . . . . . . 426 R

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A. Impact on Testators . . . . . . . . . . . . . . . . . . . 427 R
1. Discrimination-The Unmarried Couple . . . . . . . . . 428 R
2. Should the Atypical Bear the Risk of Intent-
Defeating Reformation for the Benefit of Those
Who Err? . . . . . . . . . . . . . . . . . . . . . . . 431 R
B. Impact on the Estate Planning Profession . . . . . . . . 439 R
1. Accuracy in Planning . . . . . . . . . . . . . . . . . 439 R
2. Lawyer's Testimony in Reformation
Proceedings . . . . . . . . . . . . . . . . . . . . . 440 R
3. Standard of Proof in Malpractice Cases . . . . . . . . 443 R
C. Impact on the System-Administrative Cost . . . . . . . . 444 R
IV. The Proposal. . . . . . . . . . . . . . . . . . . . . . . . . 445 R
A. Optional Reformation. . . . . . . . . . . . . . . . . . . 447 R
1. Opting In Versus Opting Out . . . . . . . . . . . . . 447 R
2. Manner of, and Parameters for, Opting In . . . . . . . 448 R
3. Sample Authorization Form . . . . . . . . . . . . . . 451 R
B. Mandatory Reformation: Mischief or Mistake. . . . . . . . 452 R
1. Illustrative Cases Within the Scope of Mischief
or Mistake . . . . . . . . . . . . . . . . . . . . . . 456 R
2. Illustrative Cases Outside the Scope of Mischief
or Mistake . . . . . . . . . . . . . . . . . . . . . . 459 R
C. Potential Criticisms .. . . . . . . . . . . . . . . . . . 459 R
1. Burdens on the Planning Process . . . . . . . . . . . 460 R
2. Disparity Between Wills and Testamentary
Substitutes . . . . . . . . . . . . . . . . . . . . . 461 R
V. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . 464 R

I. INTRODUCTION

Repeal of federal estate taxes,(fn1) elimination of the rule against perpetuities, (fn2) changes in definitions of principal and income,(fn3) and a host of revisions to established doctrine in the Uniform Probate Code(fn4) have changed the terrain of estate planning so dramatically that it is almost unrecognizable from that of a decade ago. Some of these

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mod-ernizations reflect changes in societal preferences and values, but many simply replace fixed rules that produce predictable results with a more flexible approach designed to effectuate the presumed intent of the donor where the language of the dispositive instrument fails to achieve that result due to lawyer error or other reason.

The movement away from fixed rules in the law of wills, though not entirely free of controversy, has enjoyed widespread support.(fn5) In an area of law that heavily values the certainty produced by fixed rules,(fn6) such support might not have been expected. An important factor reducing the basis for objection to these modernizations, no doubt, is the retention of "safe harbors," which provide assurance that actual intent, if expressed in a particular manner (albeit not the historic manner) will be respected.(fn7) These safe harbors permit careful testators to preclude litigation over intent and protect against the possibility that intent will be discerned inaccurately based on extrinsic evidence that is outside their control.

The most fundamental of all changes in the law of wills is the reinterpretation of the Statute of Wills to accommodate reformation of wills on the grounds of mistake which does not incorporate such a safe harbor. The historic approach provided a safe harbor by demanding absolute deference to the testator's wishes as written, foreclosing any opportunity to reform a will based on an alleged mistake.(fn8) The liberalized approach to reformation, adopted by the Third Restatement of the Law of Property (Donative Transfers),(fn9) the Third Restatement of Trusts,(fn10) the Uniform Trust Code(fn11) and at least one state legislature, (fn12) provides none. Instead, it permits re-writing of wills whenever

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the fact finder concludes there is clear and convincing evidence that the will does not embody the testator's actual dispositive wishes.

To date, commentators have hailed the change without analyzing the impact of the loss of the safe harbor.(fn13) This Article seeks to provide that analysis by exploring the value of reformation relief, considering the policy impact of abandoning the safe harbor, and questioning the desirability of the trade-off reflected in the modernization adopted by the Third Restatement and the Uniform Trust Code.

Part II begins by comparing the historic approach to will reformation with two alternatives:(fn14) the approach adopted by the Third Restatement and an approach advocated by Professor Fellows.(fn15) The discussion of these approaches identifies shortcomings of any single approach to divining donative intent and the consequent desirability of a system that incorporates elements of multiple approaches. Examination of a sampling of mistake cases highlights the overbreadth of the historic approach's safe harbor as well as the safe harbor's indispensability in shielding individuals from perversion of their testamentary wishes.

Part III evaluates the policy implications of liberalizing relief for mistake by examining the impact of such a change on individuals' ability to control their estate plans, lawyers' incentives to exercise care in the planning process, and the legal system's tolerance to bear the administrative cost involved.(fn16) Using an unmarried same sex couple as an example, section A of Part III argues that elimination of

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the safe harbor, though it may benefit a majority of testators, produces a discriminatory impact on those whom other provisions of the law of wills protect least. Section B argues that the specter of malpractice liability, largely or entirely eliminated by liberalized reformation relief, motivates lawyers and testators to avoid errors in the planning process while recognizing that malpractice as a remedy is a flawed means of effectuating intent. Finally, section C argues that the cost of reformation should be avoided where the inquiry is likely to be unproductive.

Part IV advocates an alternative approach to reformation that is designed to advance the competing policy considerations by offering many of the benefits of the liberalized approaches while preserving the safe harbor that is the cornerstone of the historic prohibition on reformation.(fn17) Specifically, this Article suggests a privately adaptable rule(fn18) which would preclude reformation of unambiguous wills unless either the testator affirmatively elected to confer upon the court a power of reformation or the will failed to satisfy specific pre-established criteria designed to protect against ill-advised decisions to preclude reformation. This proposal would permit reformation but at the same time grant testators the ability to preclude courts from "correcting" unambiguous dispositions in contravention of the testator's actual and accurately expressed intent. While the proposal imposes an additional burden in the planning process and only unifies the reformation standards for wills and will substitutes imperfectly, it does balance the interests of those who err against the interests of those who do not in a manner that offers important protections for both groups.

II. DISCERNING TESTAMENTARY INTENT

Testamentary freedom promises individuals the ability to control devolution of their property at death, but realization of the promise occurs only if the wishes are ascertained accurately in a court proceeding that occurs after death.(fn19) To facilitate realization of testamentary freedom, the law historically has required individuals to set forth dis-

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positive desires in a written statement(fn20) executed with formalities(fn21) sufficient to identify to the individual executing the instrument and the world at large that the writing is intended to be a will.(fn22)

The requirement to set forth testamentary wishes in a will creates two potential problems for testators. First, the formalities required for wills may be complied with imperfectly, resulting in refusal to probate the document containing the testamentary wishes. Second, a properly executed will may fail to communicate testamentary wishes accurately.

To minimize the situations in which imposition of formalities...