Boilerplate and Default Rules in Wills Law: An Empirical Analysis

47 Pages Posted: 16 Mar 2017  

David Horton

University of California, Davis - School of Law

Reid K. Weisbord

Rutgers Law School

Date Written: March 14, 2017

Abstract

The prime directive of wills law is to honor a testator’s intent. As a result, lawmakers take pains to populate the field with majoritarian default rules: those that fill gaps in an estate plan with principles that reflect the wishes of most property owners. However, this Article exposes a phenomenon that undermines these efforts. Using an original, hand-collected dataset of 230 recently-probated wills, it demonstrates that testators routinely opt out of majoritarian default rules through provisions that appear to be boilerplate. This practice is especially prevalent for “non-salient” matters: vital but obscure topics such as the consequences of a beneficiary dying before the testator, how to divide gifts among multi-generational classes, and who must pay mortgages and death taxes. The Article then uses these empirical results to urge judges and legislatures to reconsider the structure of default rules in wills law. Currently, most non-salient topics are governed by “simple” default rules, which yield to any contrary textual command. Conversely, the Article argues that “sticky” defaults, which are harder to displace, would better-insulate a testator’s likely desires from the plague of testamentary boilerplate.

Keywords: wills, empirical, default rules, boilerplate, antilapse, tax apportionment, exoneration of loans, New Jersey, probable intent

Suggested Citation

Horton, David and Weisbord, Reid K., Boilerplate and Default Rules in Wills Law: An Empirical Analysis (March 14, 2017). Iowa Law Review, Vol. 102 (2017), Forthcoming. Available at SSRN: https://ssrn.com/abstract=2933084

David Horton (Contact Author)

University of California, Davis - School of Law ( email )

Martin Luther King, Jr. Hall
Davis, CA CA 95616-5201
United States

Reid K. Weisbord

Rutgers Law School ( email )

NJ
United States

HOME PAGE: http://law.rutgers.edu/directory/view/weisbord

Paper statistics

Downloads
112
Rank
200,112
Abstract Views
249