Text and time: a theory of testamentary obsolescence.

• Author: Hirsch, Adam J.

Events may occur after a will is executed that ordinarily give rise to changes of intent regarding the estate plan--yet the testator may take no action to revoke or amend the original will. Should such a will be given literal effect? When, if ever, should lawmakers intervene to update a will on the testator's behalf?

This is the problem of testamentary obsolescence. It reflects a fundamental, structural problem in law that can also crop up with regard to constitutions, statutes, and other performative texts, any one of which may become timeworn. This Article develops a theoretical framework for determining when lawmakers should--and should not--step in to revise wills that testators have left unaltered and endeavors to locate this framework in the context of other forms of textual obsolescence. The Article focuses on a variable denoted "friction"--that is, the extent of difficulty text makers face in revising texts on their own. Some testators become incapable of amending their wills, and some events display the dual property of altering testamentary intent while simultaneously disabling the testator from executing a new estate plan. In such instances, legal intervention to effectuate intent is warranted. Where testators remain at liberty to amend their wills following a change of circumstance, however, the case for legal intervention becomes uneasy. Nevertheless, lesser forms of friction may continue to operate, affording testators less practical opportunity to redo their wills, and hence again giving cause for lawmakers to interpret wills dynamically.

When they do act to reinterpret a will in light of changed circumstances, lawmakers should ordinarily follow the course that a majority of testators would choose, as default rule theory dictates. Yet, legal intervention to effectuate probable intent could implicate error costs, if testators believe a different rule is in effect. By matching default rules of will interpretation with common assumptions about what rules apply, lawmakers minimize error costs. As this Article demonstrates in the Appendix, under certain conditions an error-minimizing default is more efficient than a majoritarian default, a contribution to default rule theory.

TABLE OF CONTENTS INTRODUCTION I. INTERVENTION IN THE PRESENCE OF FRICTION A. Theoretical Prologue B. Loss of Capacity C. Loss of Opportunity 1. Common Calamities 2. Slayings 3. The Relevance of Imputed Intent II. INTERVENTION IN THE ABSENCE OF FRICTION A. Impossibility B. Other Changed Circumstances 1. Error Costs 2. Friction Redux a. Ripeness b. Lag 3. Extrinsic Evidence 4. The Code CONCLUSION APPENDIX INTRODUCTION

Prior to the nineteenth century, Americans and Britons typically put off executing their wills until death was near. (1) The resulting estate plans were timely but not always tidy, for testators often conceived them in haste. One of the early arguments against freedom of testation in Great Britain was that testators "visited with sickness, in their extreme agonies and pains," might dispose of their estates "indiscreetly and unadvisedly." (2) Since the twentieth century, deathbed wills have grown comparatively rare, and as a consequence the risk of testamentary indiscretion has receded. (3) But every silver lining has its cloud. Wills drafted in the prime of life implicate a different peril--the risk of being overtaken by events. If a hiatus separates the time when a will is executed from the time when it matures, intervening occurrences--changes in the testator's life--may render it less well adapted to his or her subsequent circumstances.

This is the problem of testamentary obsolescence or, to borrow a scholar's turn of phrase, the "stale will." (4) Viewed structurally, it reflects a fundamental dilemma that recurs in our law. Whenever a court is called upon to apply the performative words of others, it must decide whether to read those words statically or dynamically, in spite of or in light of evolving facts. Time does its work, and contracts, statutes, and constitutions, inter alia, (5) along with wills, are all subject to the march of anno domini. Ultimately, lawmakers confront the core problem of textual obsolescence and ought to examine that problem in all fields of law from a common perspective, even if it yields different outcomes within individual fields. (6)

The replication of strategies to avoid textual obsolescence bears witness to the unity of the problem. Text makers themselves can update their words, of course, and codicils to wills stand beside statutory and constitutional amendments. (7) Alternatively, text makers can take immediate precautions against subsequent obsolescence. One possible response, developed independently within various textual categories, is to attach fuses to texts so that they self-destruct after a period of time. The texts will then enjoy too short a life span to become obsolescent. Thus, contracts typically cover "spot" transactions; long-term "relational" contracts are rarer. The statutory analogue is a sunset clause. (8) If Thomas Jefferson had had his way, the federal Constitution would have expired every nineteen years. (9) And some estate plans incorporate the same feature--a "conditional will" is tied to a looming hazard and becomes void if the testator survives that hazard. (10)

To the extent they can anticipate fortuities that would render a text anachronistic, text makers can also build into it preservatives against staleness. Contingency clauses often decorate wills and contracts. (11) Within some statutes, fallback provisions (usually anticipating the possibility of unconstitutionality) and indexing provisions perform an analogous function. (12)

Alternatively, text makers may concede the futility of trying to anticipate every contingency and empower a delegate to revise their texts as circumstances evolve. In effect, that is what legislators do when they incorporate standards into statutes; a court can then reinterpret their application over time. (13) In inheritance law, a power of appointment or discretionary trust serves this end. The donee of the power or the trustee will make distributive decisions as dictated by unfolding events.

The problem remains that text makers may decline or neglect to take any of these steps--a distinct possibility among the makers of testamentary texts. One estate planner offers a bleak assessment: "If truth were known, I believe we would be aghast at the number of outstanding wills of living persons in this country which are obsolete, as far as reflecting the present wishes of the testator." (14) When, if ever, should courts step in to update a text on its maker's behalf? Specifically in the realm of wills, should courts ever infer textual revisions that testators themselves never formalized in an executed writing?

In the pages following, we shall sketch a theoretical blueprint for analyzing this problem. And because similar issues arise in other textual arenas, we shall also strive to examine the problem in relation to its counterparts. In Part I, we consider situations where testators lack the opportunity to revise a will on their own, making judicial intervention potentially attractive. In Part II, we proceed to situations where testators do have that opportunity, making the case for judicial intervention more complicated and problematic. In the course of the analysis, and as elaborated in the Appendix, we shall propose a new sort of default rule, termed an error-minimizing default, that is demonstrably efficient under certain conditions and could prove to have broader theoretical significance.

1. INTERVENTION IN THE PRESENCE OF FRICTION

   1. Theoretical Prologue

      In theory, courts are constrained to abide by the meaning of a legally performative text, as a reflection of its authors' intent. Fidelity to the intent of legislators or framers follows from our observance of democratic principles. With regard to testamentary texts, lawmakers likewise acknowledge "the bedrock principle of honoring the intent of the testator," (15) a value grounded in public policy, if not political theory. (16) The problem of textual obsolescence arises, conceptually, when a legally performative text no longer corresponds with the sentiments of its authors or their successors-in-interest.

      In a perfect world, the authors themselves would attend to the task of updating their texts with precision and dispatch. In the real world, that may not happen--and in some situations, we can anticipate the occurrence of obsolescence to be systematic. A key argument leveled against originalism in the context of constitutional interpretation is that the mechanism for amending the text is so cumbersome that the changed intent of the electorate (as successors to the framers) cannot realistically assert itself over time. (17) A similar argument can be put forward, albeit less forcefully, in the context of statutory interpretation. Here, the impediments to change are quantitative rather than qualitative: once the legal landscape becomes crowded with statutes--a pattern that sesquipedalian scholars have dubbed "statutorification"--legislators fight a losing battle to keep all of their acts current. (18) Inevitably, some acts are subordinated (an observation that brings us back to inheritance law, a field crawling with old vines). (19) Originalists may still object to judicial intervention to update a text as undemocratic. (20) Yet, if a court updates text by scrupulous reference to the sentiments of its authors, while ignoring the court's own sympathies or inclinations, it can still claim adherence to democratic (and testamentary) values.

      In connection with testamentary texts, however, the assertion that obstacles stand in the way of currency is less compelling. Ordinarily, amending a will by codicil is simple and inexpensive; and whereas modern estate plans may combine multiple texts when disposing of assets outside of probate, multiplying in turn the number of...