Text and Time: A Theory of Testamentary Obsolescence

97 Pages Posted: 9 Apr 2008 Last revised: 1 Oct 2008

Abstract

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 statutes, contracts, 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 to locate this framework in the context of other forms of textual obsolescence. The article focuses on a variable I call friction - i.e., the extent of difficulty text makers face in revising texts on their own. Some changed circumstances display the interesting quality 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 the testator remains in a position to amend a will following a change of circumstance, 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 interpreting wills dynamically.

When lawmakers do act to update a will, they should ordinarily do so on the basis of the testator's probable intent. Yet, I also argue that in some instances lawmakers do better to follow the testator's probable assumptions about what rule governs will interpretation, even if that rule fails to match most testators' preferences. I call this an error-minimizing default. In the Appendix, I show that under some conditions an error-minimizing default is more efficient than a majoritarian default, a contribution to default rule theory.

Keywords: wills, estates, inheritance, construction, interpretation, originalism, default rules

JEL Classification: K11, K12

Suggested Citation

Hirsch, Adam Jay, Text and Time: A Theory of Testamentary Obsolescence. Washington University Law Review, Vol. 86, No. 3, 2008; FSU College of Law, Public Law Research Paper No. 306; FSU College of Law, Law and Economics Paper No. 08-07. Available at SSRN: https://ssrn.com/abstract=1118190

Adam Jay Hirsch (Contact Author)

University of San Diego ( email )

5998 Alcala Park
San Diego, CA 92110
United States

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