Rethinking the testamentary capacity of minors.

• Author: Glover, Mark

TABLE OF CONTENTS I. INTRODUCTION II. THE LEGAL CAPACITY OF MINORS A. Testamentary Capacity 1. Mental Capacity 2. Legal Capacity B. Legal Capacity of Minors in Other Contexts 1. Contracts 2. Lifetime Gifts III. INCAPACITY AS A PROTECTIVE POLICY A. Protecting Minors 1. Diminished Need for Protection 2. Other Protective Measures B. Protecting Surviving Spouses C. Protecting Surviving Children IV. AGE AS A PROXY FOR COMPETENCE A. Conclusive Presumption of Incompetence B. Rebuttable Presumption of Incompetence V. INTESTACY AS FORCED PARENTAL INHERITANCE A. The Family as an Economic Unit B. Limiting the Parental Share VI. REFORMING THE TESTAMENTARY CAPACITY OF MINORS A. Elimination of the Age Restriction B. Parental Consent VII. CONCLUSION Table I I. INTRODUCTION

An individual 18 or more years of age who is of sound mind may make a will." (1) This provision of the Uniform Probate Code (UPC), which reflects the longstanding laws of nearly all American jurisdictions, (2) does two things. First, it grants all competent adults testamentary capacity. Second, it categorically prohibits minors from distributing their property through wills. (3) The UPC and the laws of all states simply deny children testamentary capacity. Because this rule conflicts with the primary objective of the law of wills, which is to allow people to freely choose how their estates will be distributed, (4) it should be founded upon a coherent and compelling policy rationale. Nonetheless, it is not.

Despite the tradition and ubiquity of the testamentary incapacity of minors, case law and legal scholarship devote little attention to the rule's rationale. (5) Likewise, although the rule has appeared in the UPC since its original promulgation in 1969, the drafters of the UPC have not questioned the rule's underlying justification. (6) Moreover, the few authorities that do discuss the rule's rationale do not satisfactorily explain the categorical incapacity of minors. (7) These authorities describe the rule as serving a protective policy, which portrays minors as too inexperienced to make considered choices and too young to be held accountable for their imprudent decisions. (8) However, because this justification mirrors the rationales of minor incapacity rules in other areas of law, it ignores the unique circumstances of testamentary decision-making. (9)

Consider, for example, the need to protect children from their unwise choices when assenting to contracts or giving gifts. Absent a minor incapacity doctrine, children would experience the potentially devastating ramifications of their irresponsible contractual and donative decisions. (10) Incapacity rules in these contexts safeguard children from squandering their resources by limiting their abilities to give gifts and enter into contracts. (11) By contrast, minors do not need the same protection in the context of testamentary gift-giving because they would not suffer the consequences of their haphazard testamentary decisions. A will only becomes effective upon the testator s death, (12) and therefore the very nature of testamentary decision-making forecloses the possibility that children will experience the negative effects of their poor choices. Certainly, minors could make foolish testamentary decisions, but because they would not suffer the consequences of these decisions, the need for protection is diminished.

The distinction between wills, which become effective upon death, and contracts or gifts, which are effective during life, illustrates the need for a critical reexamination of the minor incapacity doctrine in the law of wills. By analyzing three potential explanations for the testamentary incapacity of minors, this Article seeks to establish a coherent connection between the rule's underlying policy and its mechanics. These potential rationales include the traditional justification and two alternative explanations.

First, as traditionally explained, the age requirement could represent a categorical capacity threshold that is aimed at protecting children from suffering the consequences of improvident testamentary decisions. (13) Second, the age requirement could be seen as a proxy for the minimum mental competency that the law requires of all testators. (14) Under this rationale, the age requirement aids courts in making a determination of whether the testator's mental capacity reaches the requisite level for valid will-execution. Finally, the age requirement could implement forced parental inheritance, pursuant to which the estates of minors are funneled into intestacy and are distributed to the minors' parents. (15)

A critical examination of the traditional justification of the testamentary incapacity of minors and the identification of alternative rationales has important implications. Specifically, the analysis suggests that, regardless of which rationale explains the doctrine's place in the law of wills, lawmakers should reexamine their minor incapacity rules and implement reforms so that the rule adequately serves its intended purpose. Indeed, regardless of whether a minimum age requirement furthers a protective policy, serves as a proxy for competency, or implements forced parental inheritance, reform of the minor incapacity rules in the law of wills is needed. By recognizing this need and proposing specific reforms, this Article fills an analytical void that has been left unaddressed by both trusts and estates scholars and those who study minor incapacity rules generally.

This Article proceeds in five main parts. Part II provides the context for examining different rationales for the testamentary incapacity of minors. In particular, it explains the doctrine's place in the law of wills and describes the minor incapacity rules in the related areas of contracts and lifetime gifts. Parts III through V analyze three rationales for the testamentary incapacity of minors. Part III reexamines the traditional explanation, which views the age requirement as furthering a protective policy. Part IV suggests an alternative rationale, namely that age serves as a proxy for competence, and Part V analyzes a second alternative, which suggests that the testamentary incapacity of minors implements forced parental inheritance. Finally, Part VI suggests reforms of the rules governing the testamentary capacity of minors. Specifically, Part VI proposes that the categorical age restriction should be abolished or, alternatively, that the law should grant minors testamentary capacity when parents authorize their children to execute wills.

2. THE LEGAL CAPACITY OF MINORS

   Before the various rationales for the testamentary incapacity of minors can be examined, the rule's place in the law of wills must be established. An understanding of the relationship between the testamentary age requirement and other capacity rules in the law of wills provides the context in which to critically examine the categorical incapacity of minors. Further aiding the analysis is the relationship between the incapacity of minors in the law of wills and the corresponding capacity rules in other areas of law, specifically in the law of contracts and the law of lifetime gifts. A comparison of the rules in these related areas illuminates the disconnect between the possible rationales for the testamentary incapacity of minors and the mechanics of the rule as it currently exists.

   1. Testamentary Capacity

      To validly execute a will, a testator must have testamentary capacity, (16) a requirement that contains two components. (17) First, the testator must have the mental capacity to execute a will. (18) Just as those who marry (19) or enter into contractual relationships must possess a certain level of competency," (20) those who wish to dispose of their property through wills must also satisfy a mental capacity requirement. (21) Second, the testator must have the legal capacity to execute a will. (22) This requirement denies certain categories of individuals the ability to execute wills, regardless of whether they satisfy the minimum mental capacity requirement. (23) Although the law of wills traditionally denied several categories of individuals testamentary capacity, today only minors are categorically incapable of executing wills. (24)

      1. Mental Capacity

         To validly execute a will, the testator must possess a minimum level of mental competency. (25) As the UPC illustrates, this requirement typically mandates that a testator be of sound mind" at the time he executes a will. (26) The Restatement (Third) of Property explains that, to satisfy this mental capacity requirement, "the testator ... must be capable of knowing and understanding in a general way [(1)] the nature and extent of his or her property, [(2)] the natural objects of his or her bounty, and [(3)] the disposition that he or she is making of that property ...," (27) Furthermore, the testator "must ... be capable of relating these elements to one another and forming an orderly desire regarding the disposition of the property." (28) Put simply, to validly execute a will, the testator must be capable of understanding what he owns, who his family is, and how the will disposes of his property. In most states, a testator is presumed to possess this requisite level of competency. (29) Pursuant to such an approach, once a duly executed will is submitted to the probate court, the contestants of the will have the burden of establishing that the testator lacked the required mental capacity. (30)

         Two primary rationales underlie the mental capacity requirement. First, the requirement ensures that a will reflects testamentary intent. (31) If a decedent was unable to understand the decisions that he was making at the time of will-execution, the document should not be considered a valid will because the decedent did not make a rational decision to dispose of his property. (32) Second, the mental capacity requirement serves a family protection function. (33) By requiring that the...